Lenton Eason v. Adams Towing, Inc.

[^0] [^0]: ${ }^{1}$ References are to the Revised Statutes of Missouri 2004, unless otherwise indicated. ${ }^{2}$ McCormack v. Stewart Enters., 956 S.W.2d 310 (Mo. App. 1997).

Injury No.: 05-141500

Employee: Lenton Eason

- 2 -

reasonable, and necessary expenses to cure and relieve the effects of the injury or disability of an injured employee in the employ of an uninsured employer, or in the case of death of an employee in the employ of an uninsured employer, funds from the second injury fund may be withdrawn to cover fair, reasonable, and necessary expenses in the manner required in sections 287.240 and 287.241 . In defense of claims arising under this subsection, the treasurer of the state of Missouri, as custodian of the second injury fund, shall have the same defenses to such claims as would the uninsured employer. Any funds received by the employee or the employee's dependents, through civil or other action, must go towards reimbursement of the second injury fund, for all payments made to the employee, the employee's dependents, or paid on the employee's behalf, from the second injury fund pursuant to this subsection. ...

Section 408.020 RSMo provides:

Creditors shall be allowed to receive interest at the rate of nine percent per annum, when no other rate is agreed upon, for all moneys after they become due and payable, on written contracts, and on accounts after they become due and demand of payment is made; for money recovered for the use of another, and retained without the owner's knowledge of the receipt, and for all other money due or to become due for the forbearance of payment whereof an express promise to pay interest has been made.

(Emphasis ours).

In McCormack, the court considered whether an employer is liable for interest on unpaid medical expenses under $\S 408.020$ RSMo, the general interest statute. The McCormack test is summarized as follows: "[A] claimant is entitled to interest on his medical expenses if he establishes that: 1) the expenses were "due," i.e., he actually paid the expenses, his providers were demanding interest of him, or he suffered a loss by the delay of payment; 2) the amount due was readily ascertainable by computation or by reference to a legal standard; and 3) he had demanded the employer to pay the expenses." ${ }^{3}$

Employee accurately points out that in State ex rel. Otte v. State Treasurer (Otte III), the court ruled that an injured worker is entitled to interest from the Second Injury Fund under the general interest statute if the worker satisfies the McCormack test. ${ }^{4}$ Notably, however, the Otte III court did not address when that interest begins to accrue.

It is worth discussing the nature of employee's entitlement to funds from the Second Injury Fund regarding these past due medical expenses. Is the obligation of the Second

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[^0]: ${ }^{3}$ State ex rel. Otte v. State Treasurer, 182 S.W.3d 638, 642 (Mo. App. 2005).

${ }^{4}$ State ex rel. Otte v. State Treasurer, 182 S.W.3d 638 (Mo. App. 2005).

Injury Fund to pay the medical expenses under § 287.220.5 RSMo identical to the employer's obligation to pay those medical expenses? We think it is not.

"There is...a well settled rule of statutory construction that where different language is used in the same connection in different parts of a statute it is presumed that the Legislature intended a different meaning and effect."5

Employer's obligation is described as follows: "the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury." "Provide" means, "to supply for use."6

The Second Injury Fund's obligation is described as follows: "[F]unds from the second injury fund may be withdrawn to cover the fair, reasonable, and necessary expenses to cure and relieve the effects of the injury or disability of an injured employee in the employ of an uninsured employer..." "Withdraw" means, "to remove (money) from a place of deposit or investment." "Cover" means, "to be adequate to defray or compensate : defray the cost of : pay for : BALANCE <a reserve fund to unexpected expenses><a special grant to the research program>."8

A comparison of the two subsections reveals that employer has an affirmative duty to provide medical care whereas the Second Injury Fund is required only to allow funds to be withdrawn to cover the cost of care.

We conclude that by the affirmative and mandatory language of $\S 287.140 .1$ ("employer shall provide") the legislature intended to impose a much greater obligation upon employer as regards medical care than it intended to impose upon the Second Injury Fund by the passive and directory language of $\S 287.220 .5$ ("funds may be withdrawn to cover"). Because the legislature imposed distinct obligations upon employers and the Second Injury Fund, we reject employee's argument that employee is entitled to the same interest from the Second Injury Fund as he would be entitled to from employer.

When does interest begin to run?

Section 408.020 RSMo says "creditors shall be allowed to receive interest..." Employee asserts he is the creditor in this case. So there must be a debtor. Employer was indebted to provide medical treatment to employee as soon as the treatment was needed. The Second Injury Fund was not a debtor until December 15, 2010, the date the administrative law judge found the employee was entitled to have funds withdrawn from the Second Injury Fund to cover his fair, reasonable and necessary medical expenses.

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[^0]: ${ }^{5}$ Kirkwood Drug Co. v. Kirkwood, 387 S.W.2d 550, 554 (Mo. 1965), quoting Morgan v. Jewell Const. Co., 91 S.W.2d 638, 640 (Mo. App. 1936).

${ }^{6} WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1827 (2002).

{ }^{7} WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2626 (2002).

{ }^{8}$ WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 524 (2002).

In summary, interest does not begin to accrue on Second Injury Fund medical expense obligations until the entry of an award finding the Second Injury Fund liable for medical expenses pursuant to the provisions of $\S 287.220 .5$ RSMo.

We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest consistent with our opinion herein and as otherwise provided by law.

Given at Jefferson City, State of Missouri, this $19^{\text {th }}$ day of July 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

1. Are any benefits awarded herein? YES
2. Was the injury or occupational disease compensable under Chapter 287? YES
3. Was there an accident or incident of occupational disease under the Law? YES
4. Date of accident or onset of occupational disease: AUGUST 26, 2005
5. State location where accident occurred or occupational disease was contracted: VERNON COUNTY, MO
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? YES
7. Did employer receive proper notice? YES
8. Did accident or occupational disease arise out of and in the course of the employment? YES
9. Was claim for compensation filed within time required by Law? YES
10. Was employer insured by above insurer? UNINSURED
11. Describe work employee was doing and how accident occurred or occupational disease contracted: WORKING ON A CARRIER CAR
12. Did accident or occupational disease cause death? NO
13. Part(s) of body injured by accident or occupational disease: RIGHT LOWER LEG, ANKLE
14. Nature and extent of any permanent disability: NO
15. Compensation paid to-date for temporary disability: -0 -
16. Value necessary medical aid paid to date by employer/insurer? -0 -

1. Value necessary medical aid not furnished by employer/insurer? $\ 46,802.66
2. Employee's average weekly wages: $\ 700.00
3. Weekly compensation rate: N/A
4. Method wages computation: N/A

1. Amount of compensation payable:

Unpaid medical expenses: $\ 46,802.66

N/A weeks of temporary total disability (or temporary partial disability)

N/A weeks of permanent partial disability from Employer

N/A weeks of disfigurement from Employer

1. Second Injury Fund liability: YES

TOTAL: $\ 46,802.66

1. Future requirements awarded: YES

Said payments to begin IMMEDIATELY and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Daniel Doyle

Employee: Lenton Eason

Injury No. 05-141500

Dependents: N/A

Employer: Adams Towing, Inc.

Additional Party: Second Injury Fund

Insurer: Uninsured

Hearing Date: August 24, 2010

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by:

The above referenced matter was presented for hearing in Joplin, Missouri on August 24, 2010. In attendance at the hear