Charles Kinney v Dresser-Rand Company
New Hampshire Ins. Co.
Release Date: Oct 18, 2019 (Accident dateNov. 23, 2011)
Venue: St. Louis
Plot Summary: A majority of the commission affirms a PTD award against the employer who failed to attend a hearing or file a timely application for review.
Cast
Keaveny, ALJ
Griffiths
Margolis
England
Memorable quotes:
"Employer never took any steps to contact the Division with its correct address … thus employer bears some responsibility for its lack of notice."
Comments: Claimant reports he worked for Dresser-Rand Co. from 2007-2011 in Louisiana, MO as a laborer and his job involved using a jackhammer and heavy equipment. He sought treatment for his back and underwent a spinal fusion in 2014. He produced an expert opinion that his work at Dresser (and a subsequent employer) was the prevailing factor to develop symptoms and a need for surgical treatment for spondylolisthesis. His expert rated him with partial disability. His vocational expert felt he was unemployable due to his presentation and history of limited function.
The award notes the Employer acknowledged notice of the claim for compensation as it responded to claimant's counsel by letter but did not file an answer or appear. The appeal alleges error due to lack of notice and the appeal arises when the employer's counsel filed an application for review about 5 months after the ALJ issued an award.
The employer argues the default award should be set aside due to mistake or confusion because the employer was selling its business and its personnel was confused by the notice and mistakenly felt it was a garnishment action. The Commission found no evidence that the employer asked for a continuance of an 'imminent' hearing or referred the matter to an attorney or to an insurance company. The claims for compensation were sent to various addresses provided by claimant's counsel that appeared to be culled from the internet.
The notice problem was further compounded by the Division's failure to follow 287.520 to provide notice to the last known address.
The dissenting commissioner felt the default should be set aside absent intentional disregard by the employer, and alleged claimant had only used the "most marginal" attempts to provide the Division with a correct address to notify the employer. The award itself lists 6 alternate names for the employer and describes 3 different possible addresses in addition to what appears to be a 4th address (the agent registered to receive service which appears to have been used only after the award was final).
The Commission does not reach the issue whether it has authority to disturb a judgment registered with the circuit court.
What's it worth?
> 126K in past benefits and ongoing PTD
