Tuesday, July 16, 2013

No waiver of control of future medical care

Claimant was hurt while en route to investigate a vandalism of property owned by her family's business.  The court of appeals affirms an award of benefits to claimant and her parents.   Demore v Demore Enterprises, 2013 Mo App. Lexis 835 (SD July 15, 2013), appealed and argued before supreme court 4-23-2014 (SC 93640).

The primary fight in this case centers on whether the accident arose out of the employment and who makes the decisions regarding future medical treatment.

The Commission found the employer/insurer did not waive a right to control future medical, and the court of appeals deferred to that factual finding.  The court of appeals found the commission incorrectly found that the insurer committed no waiver, when the statutory right to designate a doctor flowed solely from the employer.  This was a point the insurer conceded.   The decision indirectly recognizes the  different role of an injured working while working for her own family business and asks whether the claimant really "seriously questions the medical care offered by her family-owned business."

The court of appeals affirms the Commission's denial of about $40,000 as sanctions for an unreasonable defense, reversing an award of fees by the ALJ.   The Commission noted the defense was not unreasonable because of the unsettled state of law about arising out of defenses produced by statutory reform and application of strict construction.  The court rejects arguments from the carrier and provides several instructions on more effective appellate practice. 

In the original case, 2012 MO WCLR Lexis 171  American First Ins. Co.  asserts that claimant, a bookkeeper,  was running a personal errand. ALJ Wilson sharply noted that the  denial for 2 1/2 years shifted more than $100,000 medical expenses to claimant (and Medicare).