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Orr v. City of Springfield9/23/2003
e opinion of Goodwin v. Farmers Elevator & Exchange, 933 S.W.2d 926 (Mo.App. 1996) is not applicable to our analysis, because it referred to section 287.210.3 prior to the 1990 changes. Employer also contends that Lane v. Schreiber Foods, Inc., 903 S.W.2d 616 (Mo.App. 1995) is dispositive to our analysis and requires the exclusion of Dr. Robinson's testimony.
In Goodwin, which considered the statute prior to the changes that made section 287.210.3 and its seven-day rule applicable to depositions, the Court noted that a party that does not receive a medical report in compliance with section 287.210.3 has at least two options. 933 S.W.2d at 929. The party may cross-examine the physician immediately after direct and reserve time for additional later cross-examination if necessary, or the party may postpone all cross-examination until there is an opportunity to review the testimony. Id. The Court in Goodwin determined that although there was a violation of the seven-day rule, admitting the testimony of the physician was not in error because the party who was adversely affected by the violation failed to object or assert any request for relief and thus, was not prejudiced. Id.
In Eubanks v. Poindexter Mech. Plumbing & Heating, 901 S.W.2d 246 (Mo.App. 1995), which considered section 287.210.3 post-1990, we indicated that the Commission has discretion to reject medical reports that are not furnished in compliance with the seven-day rule, but was not required to do so. Id. at 248. We concluded that the remedy indicated in the statute was a continuance and that none was sought in Eubanks. Id. Further, we determined that " f the challenged evidence were essential to a finding, but inadmissible because hearsay, a remand to give the claimant an opportunity to put the evidence in admissible form would be appropriate, especially when the Commission has admitted the evidence and it provides expert opinion supportive of the award." Id. In Eubanks, such a remand was unnecessary because the finding was supported by competent and substantial evidence that was unchallenged. Id.
In Polavarapu, to which the Commission referred in its final award, the employer alleged that the Commission's award of future medical expenses and treatment was erroneous because it was based on testimony inadmissible due to violation of the seven-day rule. 897 S.W.2d at 65. The case considered the statute post-1990. Id.
The employer argued that the physician's testimony regarding future medical treatment was inadmissible because his medical report did not contain any reference to the issue. Id. at 66. The employer objected to the admission of the physician's report at the hearing and the claimant withdrew her request for admission. Id. The Court concluded that since the record was not admitted and thus, not included in the record on appeal, it was unable to determine whether or not it contained reference to future medical treatment. Id. However, it determined that there was no prejudice to the employer because the award of future medical treatment was supported by sufficient evidence absent the physician's testimony. Id.
In Lane, the analysis referred to another provision in the statute, section 287.210.5, which was not changed in 1990. That provision reads as follows.
5. As used in this chapter the terms "physician's report" and "medical report" mean the report of any physician made on any printed form authorized by the division or the commission or any complete medical report. As used in this chapter the term "complete medical report" means the report of any physician giving the physician's qualifications and the patient's history, complaints, details of findings of any and al
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