Vitaliano Rodas v the Carter Group Bella Inc.
2018 MO WCLR LEXIS 4-12-2018
The Commission affirms a 30% PPD award for a knee injury and unpaid medical bills for an accident occurring in Kansas by an uninsured employer.
At the time of the accident the 65-year old claimant was performing re-modeling work and repairing a floor. He was a qualified real estate agent.
The employer contends because claimant was a qualified real estate agent he could not pursue benefits based on the exclusion under 287.090.1(2). The commission noted there was no evidence the activities at the time of the accident were related to duties of a qualified real estate agent to invoke the exclusion because claimant was not "fairly" and "clearly" within the terms based on strict construction.
The employer asserted claimant's medical expert was barred because he was not available for cross-examination. The Commission found the employer waived the error by not asserting a timely objection within 10 days of an intent to submit the report, and when the employer had an opportunity to partially cross examine the expert (nothing 36 pages of cross-exam) the deposition was stopped over a dispute over one question that defense counsel was "badgering" the witness by the suggestion the expert was being too much of an advocate. The commission considered the defense counsel had a reasonable opportunity to pursue relief in the eight months between the first attempt at the deposition and the hearing and waived its right for further cross examination.
The Commission affirmed a finding of employment but disavowed additional findings regarding the role as construction industry employers.
The Commission found the rating from claimant's expert uncontroverted because the employer offered no contrary medical opinion.
ALJ Rebman
