Hernandez v Butterball
Release Date: Oct 21, 2021 (3 cases)
Venue: Jaspar County
17-105833, 17-100700, 19-056530
Summary: ALJ in a temporary award orders studies for carpal tunnel and orders fees and costs of $18,788.85. Employer stipulated to accident and agreed to provide treatment to some body parts but not to the hands/wrists. Claimant filed two claims alleging both accident and repetitive trauma to hands/wrists.
The ALJ noted the employer violated Missouri law by not filing a FROI. It had prepared an incident report but denied notice until the day of the temporary hearing. The initial answer was in default. The ALJ notes the employer waited 2 years to obtain its own IME, after claimant had incurred costs for its own report. The ALJ awarded costs and attorney's fees at a rate of $400/hour. The ALJ found claimant went to the employer's nurses station on a regular basis but the employer endangered her health.
Employer relied upon expert opinion of Dr. Kutnik who stated he could make treatment recommendations because he could not form any diagnosis. Claimant's expert recommended EMG studies to evaluate suspected carpal tunnel. It is unclear form the opinion if he addressed why an EMG was appropriate or not.
The Commission adopted the award for treatment but deferred on ruling on the award of costs and fees because the case was not at MMI and the issue for appeal was not ripe. A dissenting commissioner would have affirmed the award of fees and costs in a temporary hearing.
Parties:
Fischer, ALJ
Newman
Larimore
Lennard
Kutnik
