The failure to introduce any medical evidence may not be much of a defense, but the limited defense is not so egregious as to warrant sanctions under 287.560, according to two recent Commission decisions, reversing awards of sanctions from two different administrative law judges against the Second Injury Fund. The Commission indicated sanctions should be imposed with great caution and only when the case for costs is clear and the offense egregious.
In Bridges v Home Depot, DOLIR 3-7-11, the Fund defended the case by only “picking at” the claimant’s expert on cross-examination. In Lingle v Ryder Integration Logistics, DOLIR 3-7-11, the Fund did not even show up for a medical deposition of claimant’s expert. The commission noted the claimant did not show that the Fund’s failure to attend the deposition was intentional or the result of bad faith. The statute requires a claimant to depose an expert if the Fund will not stipulate to the admission of a report.
In a recent permanent total award for a 69-year old paraplegic claimant, the Commission in a 2-1 decision declined to award sanctions against the employer but noted its defense was tenuous. DOLIR 2-14-11. One commissioner would have ordered sanctions. Hoff v St. Clair R-8 School District, DOLIR 2-14-11.
Court-ordered sanctions can represent significant penalties. In Motor Control Specialties v Labor & Industrial Relations Commission, 258 S.W.3d 482 (Mo. App. 2008), the court imposed sanctions for over $300,000 for costs of an appeal and doubling of an unpaid temporary award.
Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug’s Mo. Workers’ Comp Alerts.
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