Tuesday, October 22, 2013

'It's a trap!' : Procedural pitfalls

The court of appeals recently told a pro se worker that rules were rules and it was too bad that the Division sometimes seemed inappropriately rigid in a system what wasn’t supposed to get too hung up on technical rules.  Burchfield v Renard Paper Co., No. ED 99151 (Mo App. July 16, 2013), 2013 MO App. Lexis 837.

The Commission insists on proper procedure, at least, most of the time.

Depositions which contain a request for production of videos produces an ongoing duty to supplement evidence based on Rule 56.01(e), even in the absence of a separate subpoena duces tecum.   Burlison v Dept. of Public Safety, 2015 MO WCLR Lexis 10 (Feb. 6, 2015).   The employer indicated it had no duty to provide video obtained after the deposition because there was never a subpoena served nor any duty to supplement.  The ALJ found Rule 56.01(e) set forth a duty to seasonably amend a prior response to a request or production and excluded the video. As the employer did not produce video acquired after the deposition the ALJ barred use of two days of surveillance to defend a PTD claim from a person who stated she could not use her arm. 

The Commission insisted on a proper foundation to admit a deposition.  Walker v Bon Appetit Management, 2013 Mo WCLR Lexis 165 (August 29, 2013)

A deposition was properly excluded from evidence based on Rule 57.05 when deposition in Missouri taken by out of state notary public.  Lewis v City of Liberty, 600 S.W.2d 677 (MO App. 1980).  It was the employee's deposition and no one had appeared rom the employer and the court notes there were "vague and inconclusive charges and countercharges" between "counsel on both sides relative to whether the noticed deposition had been cancelled."

Medical records addressing pre-existing conditions were not newly discovered records and could not be submitted on appeal before the commission when the pro se claimant could have submitted the 650 pages of records at the hearing for PTD.  Hilderbrand v Fry Wagner Industrial  Moving, 2014 MO WCLR Lexis 108 (Sept. 5, 2014) (denying benefits).

The failure to make a timely offer of proof did not preserve error concerning the admission of exhibits which were not certified.  Calvert v Treasurer of the State of Mo., 2013 Mo. App. Lexis 1429 (Nov. 27, 2013) ("This Court assumes the absence of a reference to the exhibits in its Final Award Allowing Compensation was a de facto exclusion of those exhibits by the Commission.... Claimant's attempt to make an offer of proof by filing an "Offer of Proof as to Exhibits M, M, P, Q, R and T" with the Commission fails to preserve the issue for appeal.")

The failure to file a timely answer resulted in the alleged rate of maximum benefits whether that representation of earnings is accurate or not.  T.H. v. Sonic Drive In of High Ridge, 2012 Mo App Lexis 1585 (December 18, 2012); 2012 Mo WCLR Lexis 102, DOLIR 3-1-2013.   On the other hand, an allegation of a specific amount of disability on a claim form doesn’t work the same way.  Taylor v Labor Pros, 392 S.W.3d 39 (January 8, 2013).

The commission excluded a vocational report as hearsay when attached to the opinion of a medical expert.  Smith v Roberts Dairy, 2014 MO WCLR Lexis 81 (June 13, 2014).  The commission rejection an offer of a medical report which was attached to the brief and "inadvertently" excluded from the transcript.  "For obvious reasons, this purported report does not constitute evidence, nor can we consider it now."  Wagner v City of Maryland Heights, 2014 Mo WCLR Lexis 84. 

The Commission enhanced an award for medical bills, rejecting a defense based on an affidavit that claimant no longer had liability for the repriced bills.  Maness v City of Desoto, 2013 Mo WCLR Lexis 184 (5-24-2013). The Commission reversed an award of nearly $53,000 in medical bills because the affidavits to the bills were incomplete, unsigned, contained unexplained redactions or were inconsistent with the page numbers of the exhibits. Bartels v McDonald, 2013 Mo WCLR Lexis 61 (3-27-2013).
The commission precluded an  employer from amending an answer to deny accident an hour after the hearing in a temporary award started.  The ALJ found the employer was bound by its earlier admission, and that additional facts supported the finding of accident.   Morris v Curators of the Univ. of Mo., 2013 MO WCLR Lexis 159 (August 22, 2013).

The Commission allowed  sanctions for denying benefits without proper explanation.  It is a paradigm of ‘show your work.’  Nouraie v Mo Baptist Hospital, DOLIR  2013 Mo WCLR Lexis 52 (3-13-2013).  The commission suggested the adjustor misinterpreted medical records as a basis to deny the claim. “We think employer's act of denying workers' compensation benefits to employee before even discussing the alleged injury with employee constituted an egregious offense.”

The ALJ rejected a 7 day rule objection based on new medical opinions about causation find that the rule did not apply to issues of causation.  Greer v Sysco Food, 2014 Mo WCLR Lexis 3-28-2014.  The expert conceded he never used the statutory language of prevailing factor in any of his reports.

In an unemployment case, an issue arose whether an appeal was filed by the correct business entity when there were two entities involved including the company (Joplin Stone)  and the parent company (Springfield Underground).   A HR manager for Springfield filed the appeal.  Claimant testified that the same manager worked for Joplin Stone.   Rule 5.29 allows appeals by an officer in managerial capacity of the business entity.    The court of appeals affirmed the Commission's objection to the Division's argument that the appeal lacked standing because the wrong entity filed an application and such a appeal constituted unauthorized practice of law.  The court of appeals rejected the Division of Employment Security's appeal for the same reason the Division objected to the appeal:  lack of standing.   There was no statutory basis for the Division to appeal its argument because issues about unauthorized practice should be pursued elsewhere and there was no standing as an "aggrieved" party under 288.210  for the Division itself to raise the party in this appeal.  In re Howard v Joplin Stone, SD 33251 (Sept. 24, 2014). 

In a tort case, an issue arose whether survivors could recover pre-judgment interest on a $15,000,000 bench verdict when the defendant admitted he drove recklessly causing a roll-over resulting in a fatality.  The prejudgment interest statute of 408.040 has specific procedural requirements and any demands must include  "for wrongful death, personal injury, and bodily injury claims, be accompanied by a list of the names and addresses of medical providers who have provided treatment to the claimant or decedent for such injuries, copies of all reasonably available medical bills, a list of employers if the claimant is seeking damages for loss of wages or earnings, and written authorizations sufficient to allow the party, its representatives, and liability insurer if known to the claimant to obtain records from all employers and medical care providers...."
The court noted the failure to provide the requisite releases precluded a claim for prejudgment interest based on legislative intent even if there was no prejudice.
Hawley v Tseona, WD 76358 (Mo. App. 2014).  (Nov. 25, 2014).  Interestingly, the Mo comp statute has no similar requirements for disclosure.