Workers' Compensation

Chris T. Archer, Esquire

A late answer to a claim for compensation results in the maximum rate of compensation to apply for permanent partial disability if the claim factually alleged the claimant’s average weekly wage to be the “max rate.” T.H. v. Sonic, No. 98507 (Mo. App. E.D., December 18, 2012), Norton, J.

Claimant alleged the “max rate” as the applicable average weekly wage in the formal claim for compensation. The claim was answered late. Pursuant to 8 C.S.R 50-2.010(8)(B), factual allegations are deemed admitted when an answer is not timely filed.  The commission found the phrase in the claim “max rate” to be a legal conclusion and therefore not deemed admitted. The court disagreed and found the maximum rate for permanent partial disability was to apply.

In a hardship hearing in which liability for the claim in its entirety was at issue, the court of appeals denied it had jurisdiction over the appeal based upon its strict construction of § 287.510, RSMo 2000. Maria White v. Andersen Mobile X-ray, No. 98181 (Mo. App. E.D., December 18, 2012), Mooney, P.J.

Claimant filed for a hardship hearing for medical treatment and benefits associated with an auto accident she sustained while driving a company van. The administrative law judge and commission found her accident to be compensable and employer appealed the temporary award.

The court found that the “strict construction” that is required for statutory construction of Chapter 287 after 2005 mandates that § 287.510 be construed as a limitation on appellate jurisdiction over temporary awards. The court stated only decisions denoted as final awards are reviewable. The court stated prior exceptions outlined by case law including Bolen v. Orchard Farm R-V School District, 291 S.W.3d 747 (Mo. App. E.D., 2009), are no longer to be followed after the statutory changes made in 2005 and advent of “strict construction.”  The court followed more recent cases finding it had no jurisdiction over temporary awards. See Norman v. Phelps County Regional Med. Ctr., 256 S.W.3d. 202 (Mo. App. S.D., 2008).

An attorney’s lien takes priority over a Medicaid lien and an attorney is entitled to be paid his fee for collection of the Medicaid paid expenses. John Lake v. Ronald Levy, Director Missouri Department of Social Services, No. 74306 (Mo. App. W.D., January 15, 2013), Witt, J.

Claimant and Employer/Insurer stipulated to disability and medical expenses at a hearing conducted at the Division of Worker’s Compensation.  The administrative law judge issued an award approving the lien on the part of the attorney over the PPD stipulated and medical expenses. Submitted were the medical expenses paid by Medicaid in the amount of $45,001.73 as well as the lien submitted by the Department of Social Service in this same amount.

Attorney John Lake demanded satisfaction of his lien from the Department of Social Services which denied his demand. Attorney Lake filed petition for collection of his lien and filed a motion for judgment on the pleadings. The trial court entered judgment for the Department and Attorney Lake appealed.

The court reversed in favor of Attorney Lake and the priority of his lien. Citing a United States Supreme Court decision, Ark Dept of Health and Human Service v. Alhorn, 547 U.S. 268, 280-81 (2006), the Medicaid lien can only apply to the portion of the recovery that represents medical expenses. The issue for resolution therefore was the apparent conflict of § 287.266.7, RSMo, and § 287.266.10, RSMo. Section 287.266.7, RSMo, states “the debt due the state shall be subordinate only to the fee rights of the injured party’s attorney pursuant to this chapter, and the state shall not be required to pay any portion of the fees or costs incurred by the employee or the employer.”

In apparent contrast, § 287.266.10, RSMo, states “in no case shall the debt due the state be reduced.”

The court found that the Medicaid lien takes priority over any other liens for medical expenses awarded but does not take priority over the attorney’s lien.  It remanded the case back to the trial court reversing the judgment entered on the pleadings made in favor of the Department of Social Services.

A late answer to a claim for compensation does not result in an admission as to the nature and extent of permanent partial disability. Ray Taylor v. Labor Pros, LLC, No. 75174 (Mo. App. W.D., January 8, 2013), Witt, J.

Claimant alleged that the claimant sustained a left eye injury in a work-related accident also alleging “75% permanent partial disability to left eye” on the claim form. The claim was answered late. Pursuant to 8 C.S.R 50-2.010(8)(B), factual allegations are deemed admitted when an answer is not timely filed.  The commission found the claimant to have sustained 30% PPD to left eye based upon expert medical testimony. The claimant appealed seeking the 75% PPD that was alleged in the claim. 

The court affirmed finding that “the disability determination alleged within the claim is not to be deemed admitted.”  In dicta, the court noted that the commission deemed admitted only the fact of the accident and its role in causing Taylor’s eye injury.