Section 287.560 RSMo. in part provides:
"***if the division or the commission determines that any proceedings have been brought, prosecuted or defended without reasonable ground, it may assess the whole cost of the proceedings upon the proceedings upon the party who so brought, prosecuted or defended them.***"
In Landman v Ice Cream Specialties, 107 S.W.2d 240 (Mo. Banc. 2003), employee filed two claims for benefits for injuries she received at work. The Court concluded that the employer?s defense of the workers? compensation case was frivolous. The Court further stated that attorney?s fees are awarded as part of "the whole cost of proceedings" under ?287.560, when a party has brought, prosecuted or defended a workers? compensation claim without reasonable grounds. The Court reasoned that since attorney fees are the greatest cost in the proceedings, the sanctions would be meaningless without including legal fees. Now attorney?s fees are part of the "costs" under ?287.560.
In Sackuvich v Babcock & Wilcox Construction, Inj. No. 00-145190 (LIRC) 1/3/03, the employee had a lumbar puncture that showed CIDP (chronic inflammatory demyelinating polyradiculoneoropathy), a rare condition, causing a patient to have weakness in the hands, feet, thighs, ankles and arms with varying degrees of pain. After the injury of 11/13/00, in which the employee fell 8 to 10 feet from a scaffold, treatment starts 5/8/01 with Predisone, intravenous treatments, the treating doctor stating that these were rare and in some cases a definite cause cannot be determined. Two other employer physicians indicated no medical literature showed CIDP could be caused by trauma, such as the fall, here, their opinions being based upon a review of the records. One of the medical articles introduced into evidence suggested that pregnancy and surgery could be a cause of CIDP, the surgery being a trauma to the human body. The LIRC holds that because "no known medical treatment documents a traumatic fall as a potential cause of CIDP, does not mean that a traumatic fall cannot cause or aggravate CIDP.
(Note: The LIRC is holding that basic medical causation is compensable if an accident or O.D. can be a "potential cause" of a medical condition. In notice cases, the LIRC has recently held that "notice of a potential injury" is sufficient "notice" required under the statute!)
In McCormack v Carmen Schell Construction Co., 97 S.W.3d 497 (Mo.App. W.D. 2002), the employee was shocked by an electrical wire, received extensive benefits and vocational services, and when benefits were discontinued because the employee was unable to keep an appointment at the Mayo Clinic in Minnesota which the employer had arranged. The court affirmed the LIRC in holding that the causal connection was obvious, and that the discontinuation of TTD for this reason was inappropriate, and that although the employer had not been unreasonable in defense of all of the issues, the act was egregious enough to cause the employer to have to pay the cost of the deposition fees of the medical experts, totaling $5,162.50.
In Crowell v Brad Hawkins, 68 S.W.3d 432, (Mo.App. E.D. 2001), claimant filed for a hardship setting, seeking TTD and medical treatment. Just before the start of the Hearing the employer/insurer paid the claim benefits, claimant?s attorney keeping open the issue of "costs of recovery" which the appellate court said included attorney?s fees which are to be "awarded to the prevailing party". Because the employer paid after the request for hardship it "confessed judgement" on the claim, allowing claimant's attorney get attorney's fees.