The Commission affirmed an award of permanent and total disability benefits against the second injury fund, noting that the Fund failed to produce an expert witness to refute claimant's conclusions and failed to provide sufficient evidence to discredit her testimony. Thompson v Super 8 Motel, DOLIR 7-26-11.
Claimant was a hotel employee who reported she hurt her back when she fell backwards in 2002. Claimant treated with Dr. Straubinger, but the award does not identify other medical findings or treatment. The administrative law judge noted Dr. Straubinger treated her for a low back strain, and noted she had inconsistent findings but her symptoms might also be consistent with an annular tear. He couldn't comment on the significance of any annular tear. "Thus, I find that by his own testimony and records, Dr. Straubinger acknowledges and admits that he cannot fully assess the employee’s medical condition and how it relates to the work related injury."
ALJ: Strange
Atty: Green, Rodman
Experts: Cohen, Straubinger, Shea
The Commission reversed an award of benefits against the second injury fund due to lack of expert opinion to address claimant's prior loss of vision from amblyopia. A dissenting commissioner concluded claimant could testify about his pre-existing incapacity to see without the need for expert opinion on diagnosis. Gentry v Kraft Food Inc., DOLIR 8-11-11.
Wednesday, July 27, 2011
Tuesday, July 19, 2011
287.220(5) interest: SIF liability
Claimant entitled to pre-judgment interest against second injury fund
A claimant may recover pre-judgment interest against the second injury fund under "liberal" construction for unpaid bills of an uninsured employer, according the western court of appeals, reversing the Commission which found interest owed only after an award. Eason v Treasurer of Mo., 2012 Mo. App. Lexis 711 (May 22, 2012).
Judge Welsch noted that 287.220 did not expressly prohibit interest. The court applied the general interest statute and cases addressing interest against employers. Claimant must satisfy the three prong test of McCormack v. Stewart Enterprises, 956 S.W.2d 310 (Mo. App. 1997), which allowed interest in some cases against employers pursuant to 287.160. The expenses must have been due at the time of the demand, the amount of the expenses must have been readily ascertainable, and payment must have been demanded.In order to prove that expenses were "due" at the time of the demand, Eason must prove that he "paid the expenses, his providers were demanding interest of him, or he suffered a loss by the delay in payment. The Fund had stipulated or did not dispute claimant had a "loss", which was the first prong. The court noted that at oral argument, the parties were unable to explain the loss required to satisfy this element.
The court declined to address whether strict construction mandated by statutory reform would produce a different result. The Court found interest began to accrue potentially once the claimant added the Fund as a party while the case remained pending.
Claimant fell about 15 feet off of a car carrier and required ORIF for a tibia fracture, resulting in $46,802 in medical bills. The employer went into bankruptcy. The employer's Oklahoma insurance policy did not cover the accident which occurred in Missouri. The administrative law judge found the second injury fund liable for unpaid bills pursuant to 287.220(5) because the employer was uninsured. The administrative law judge awarded the medical bills with open medical but denied interest, a decision affirmed unanimously by the Commission.
The claimant asserted that 408.020 required the Fund to pay interest. The commission denied interest for two reasons: the Fund was not a "debtor" until after an award, when the administrative law judge found that a debt was owed. Second, the Fund's obligation to pay medical bills was not mandatory, unlike employers. The employer "shall" pay the bills under the mandate of 287.140.1. The second injury fund, however, is not obligated by similar mandatory language and 287.220.5 indicates that funds "may" be withdrawn. The commission noted it was well-established that the Fund could owe for interest under certain circumstances.
ALJ: Fisher
Atty: Doyle, Hammers
Experts: Geist
A claimant may recover pre-judgment interest against the second injury fund under "liberal" construction for unpaid bills of an uninsured employer, according the western court of appeals, reversing the Commission which found interest owed only after an award. Eason v Treasurer of Mo., 2012 Mo. App. Lexis 711 (May 22, 2012).
Judge Welsch noted that 287.220 did not expressly prohibit interest. The court applied the general interest statute and cases addressing interest against employers. Claimant must satisfy the three prong test of McCormack v. Stewart Enterprises, 956 S.W.2d 310 (Mo. App. 1997), which allowed interest in some cases against employers pursuant to 287.160. The expenses must have been due at the time of the demand, the amount of the expenses must have been readily ascertainable, and payment must have been demanded.In order to prove that expenses were "due" at the time of the demand, Eason must prove that he "paid the expenses, his providers were demanding interest of him, or he suffered a loss by the delay in payment. The Fund had stipulated or did not dispute claimant had a "loss", which was the first prong. The court noted that at oral argument, the parties were unable to explain the loss required to satisfy this element.
The court declined to address whether strict construction mandated by statutory reform would produce a different result. The Court found interest began to accrue potentially once the claimant added the Fund as a party while the case remained pending.
Claimant fell about 15 feet off of a car carrier and required ORIF for a tibia fracture, resulting in $46,802 in medical bills. The employer went into bankruptcy. The employer's Oklahoma insurance policy did not cover the accident which occurred in Missouri. The administrative law judge found the second injury fund liable for unpaid bills pursuant to 287.220(5) because the employer was uninsured. The administrative law judge awarded the medical bills with open medical but denied interest, a decision affirmed unanimously by the Commission.
The claimant asserted that 408.020 required the Fund to pay interest. The commission denied interest for two reasons: the Fund was not a "debtor" until after an award, when the administrative law judge found that a debt was owed. Second, the Fund's obligation to pay medical bills was not mandatory, unlike employers. The employer "shall" pay the bills under the mandate of 287.140.1. The second injury fund, however, is not obligated by similar mandatory language and 287.220.5 indicates that funds "may" be withdrawn. The commission noted it was well-established that the Fund could owe for interest under certain circumstances.
ALJ: Fisher
Atty: Doyle, Hammers
Experts: Geist
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