Missouri: Employer May Still Contest PPD Despite Late Answer

Missouri: Employer May Still Contest PPD Despite Late Answer

The only medical expert who assessed disability concluded that the injured worker sustained 30% disability to his left eye when he was struck with a piece of wood, but claimant asserted on appeal that he should have no less than 75% disability because he pled that amount on the claim form and the employer was late filing an answer. Claimant asserted the Commission exceeded its authority by awarding less than 75% because disability was a finding of fact and the employer waived its defenses when it filed an untimely answer. Taylor v Labor Pros, WD 75174 (January 8, 2013).

8 CSR 50-2.010(8)(B) that provides "statements of fact in the Claim for Compensation shall be deemed admitted for any further proceedings."

Late answers may forfeit defenses contesting an accident occurred at work, Hendricks v. Motor Freight Corporation, 570 S.W.2d 702 (Mo. App. E.D. 1978), or the amount of the compensation rate T.H. v. Sonic Drive In of High Ridge, 2012 MOWCLR Lexis 1585 (Mo. App. E.D. Dec. 18, 2012).

The amount of permanent disability, however, is something else entirely. There is no clear intention for the CSR rule to allow proof of the amount of disability solely by a gratuitous comment in a claim for compensation. Such an interpretation went beyond the anticipated scope of the regulation in light of its use of a standardized Claim for Compensation form that does not include a disability percentage estimation, and it usurps and undermines the "special province of the Commission" in determining disability percentages.

Claimant describes intermittent eye pain but does not use glasses, eye drops or sun glasses for his photophobic symptoms. His vision was 20/40 and 20/20 when corrected. The decision to make such findings has no material purpose to the holding except to perhaps demonstrate indirectly that such symptoms may not reflect of a 75% loss of visual acuity.

It is a fairly common practice amount certain Missouri attorneys for claims of compensation to include many boilerplate allegations although the claim of a specific amount of disability is unusual. This case clearly helps employers when there have been procedural lapses filing an answer on time and preserves at least the defense regarding the amount of PPD. The case also may indirectly show a preference to prove disputed issues on the merits rather than by procedural default.

Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug's Mo. Workers' Comp Alerts.

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