The Western District slams the Guarantee Fund on public policy grounds for denying a hearing loss claim on a notice defense.
Claimant established hearing loss of 15.77% BAW after working for an employer for 34 years, but the Commission reversed his award as he neglected to file a timely claim against the bankruptcy court after his employer became insolvent in 2001. The court of appeals reversed and found section 287.865.5 did not bar his claim and re-instated the original disability award, in Jones v GST Steel, No. 69299 (Mo. App. WD 1-6-2009).
Claimant was terminated in 2001 when his company went into bankruptcy. He obtained a diagnosis of work-related hearing loss a few days before the bankruptcy filing. The Guarantee Fund defended his claim that it owed nothing as claimant did not preserve a claim with the bankruptcy court during the 6 years the employer’s bankruptcy remained pending.
The court considered the requirements of 287.865.5 that the employee must make timely claim for such payments. The legislature purpose to allow an insolvent employer to pay liability before making claims against the Guarantee Fund could have been achieved, the court explains, if the Guarantee Fund had provided notice itself to the bankruptcy estate after it received claimant's comp claim in 2003. The court liberally construes benefits under 287.800 and found the construction advanced by the Guarantee Fund placed unsophisticated claimants in a trap.
The notice provided to claimant that he needed to file a claim in bankruptcy was “inadequate” and did not provide the claimant adequate clarification how to proceed. It imposed a deadline that he file a claim in July 2001, months before he was legally entitled to file a comp claim for his hearing loss in November 2001 (287.197.7 at the time required 6 month separation rule). The court found the Guarantee Fund never provided him a clearer notice of his rights, and noted it was their statutory responsibility to do so under 287.872. The court cited legislative changes in 2005 requiring notice requirements only of “open” claims and not “potential” claims.
The court discusses similarities to the Wire Rope case, in which claimants in both cases lacked adequate information and clarification how to proceed. In the earlier case, the court criticized the Guarantee Fund for taking a defense that “spits” in the face of public policy and causes unjustified anxiety of workers.
In a similar case, Soligo v GSTY Steel Co., DOLIR 3-24-10, the court awarded against the Guarantee Fund benefits of 35% PPD based on Dr. Koprivica's rating for an unoperated rotator cuff tear, and rejected the Fund's jurisdictional defense that claimant failed to provide notice to the bankruptcy court, when claimant asserted he had never received any letter requiring him to provide such notice. The commission reversed an award of attorney's fees of $3381 assessed by ALJ Siedlik, noting the unsuccessful defense was not so egregious to warrant costs.
