Billy Hood v. Michael Menech

(8) employee's average weekly wage was $\ 500.00 per week, sufficient to establish a compensation rate of $\ 333.33 for temporary total and permanent partial disability benefits; (9) there is substantial and competent evidence that employee was not available on the open labor market because of his injury from August 20, 2012, until February 8, 2016, and employer, Michael Menech, is liable to employee for a total of $\ 60,332.73 in temporary total disability benefits; (10) employee has suffered a 50 % disability referable to the left eye, and employer, Michael Menech, is liable to employee for a total of $\ 23,333.10 in permanent partial disability benefits; and (11) employer, Michael Menech, was not insured for workers' compensation liability at the time of employee's injury, and thus the Second Injury Fund is ordered to reimburse employee for reasonable medical expenses incurred as a result of the injury in the sum of $\ 51,183.42, and is further ordered to provide employee such future medical treatment as may be necessary to cure and relieve the effects of the injury, as may be recommended from time to time by the physician(s) selected by employee.

On August 23, 2016, the Commission received an application for review from employer, Michael Menech. On October 7, 2016, the Commission issued an order returning the application for review to Michael Menech as if it had never been filed, because it was not accompanied by proof that Michael Menech had secured a bond as required pursuant to § 287.480.2 RSMo and 8 CSR 20-3.070.

The Second Injury Fund filed a timely application for review alleging the administrative law judge erred: (1) in finding that employee's accident caused the injuries for which benefits are sought, because employee did not meet his burden of proof on causation in that he did not offer any expert opinion and his injury is beyond layperson understanding; (2) in finding employee incurred fair, reasonable, and necessary medical expenses for treatment necessary to cure and relieve the effects of the injury, in that employee did not offer any expert opinion; (3) in finding there is a reasonable probability that employee will require treatment in the future to cure and relieve the August 20, 2012, injury, in that no physician has recommended future medical care, and employee did not offer any expert opinion; and (4) in ordering that employee select future healthcare providers, because the Second Injury Fund assumes the duties of the employer in an uninsured case and § 287.140.10 entitles employers to select physicians and healthcare providers.

For the reasons set forth below, we issue this separate opinion modifying the award of the administrative law judge.

On August 20, 2012, employee was working as a carpenter on a construction project for the Vandalia Area Historical Society. The project involved converting two separate buildings into a single building. Michael Menech, an individual who described himself at the hearing as "self-employed," oversaw and had the right to control employee's day-today activities on this project. For example, Mr. Menech told employee when to report for work, kept track of his hours, inspected his work, directed activities on the jobsite, had the authority to hire and fire workers including employee, and distributed checks to the workers.

Employee: Billy Hood

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Employee had worked for Mr. Menech on other projects before. For purposes of this project, however, all of the checks that Mr. Menech conveyed to employee were drawn upon an account owned by the Vandalia Area Historical Society. Specifically, the Vandalia Area Historical Society provided Mr. Menech with a book of pre-signed checks, and Mr. Menech simply filled in the name of the worker and the amount to be paid before distributing them to the workers. The Vandalia Area Historical Society paid employee $12.50 per hour for his services. In the weeks leading up to the work injury, employee worked between 20 and 50 hours per week, depending upon Mr. Menech's instructions.

As of August 20, 2012, Mr. Menech had not insured his liability pursuant to the Missouri Workers' Compensation Law. Mr. Menech believed he was not an employer, and that he therefore did not need workers' compensation insurance. As of August 20, 2012, the Vandalia Area Historical Society also had not insured its workers' compensation liability.

While employee was using a power saw to cut a used piece of lumber on August 20, 2012, some metal debris from a nail or screw flew out of the board and into his left eye. Employee suffered immediate severe pain and diminished vision in his left eye in connection with this event. Soon thereafter, employee also developed a headache and photophobia. Prior to August 20, 2012, employee had never had vision problems, had never suffered an injury to his left eye or left eye pain, and had never received medical treatment for any issues with his left eye.

Employee immediately informed Mr. Menech that he had been injured. Mr. Menech had actual notice of employee's injury at the time that it occurred. There is no evidence on this record that Mr. Menech was prejudiced, in any fashion, by employee's failure to provide him a written notice of the injury. We find that Mr. Menech was not prejudiced by employee's failure to provide him a written notice of the August 20, 2012, injury.

After trying, without success, to remove the debris from his eye with the help of Mr. Menech, employee sought emergency medical treatment with Dr. Crisanto Gualberto, who recommended employee see an ophthalmologist immediately. Employee then went to University Hospital, where a CT scan revealed a metallic foreign body in employee's left eye, and treating physicians diagnosed a ruptured globe and full-thickness corneal laceration. The attending physicians decided to perform an emergency surgery to repair the ruptured globe and corneal laceration in employee's left eye, and then admitted employee to the hospital for observation. The next day, employee underwent a second surgery owing to continued leakage from the eye. The surgeries involved placement of an implanted contact lens.

Following the emergency medical services employee received on August 20 and 21, 2012, employee underwent some follow-up treatment at University Hospital for several months. Then, on November 23, 2012, employee fell down two flights of stairs after drinking one and a half bottles of Jack Daniels whiskey. He went to the emergency room with complaints of headache, neck pain, and left rib pain. Attending physicians took CT scans and placed a new contact lens in employee's left eye, as the surgically implanted lens had been dislodged and lost in the fall down the stairs.

On November 17, 2015, employee reported to the University Physicians Mason Eye Institute complaining that both eyes had been exposed to bleach fumes the previous day. A doctor removed the sutures from employee's left eye. Another contact lens was applied to stop leakage after the procedure. At a follow-up visit on November 19, 2015, the doctor noted a corneal scar and traumatic cataract, and recommended surgery. On February 8, 2016, employee underwent surgery to address a corneal scar, conjunctival neoplasm, and uveitic cataract in his left eye.

Employee has not advanced expert medical testimony to delineate whether, following the emergency treatment and surgery he underwent immediately following the accident, he reasonably required any additional treatment to cure and relieve the effects of any diagnosis, medical condition, or injury referable to that accident. Especially in light of the intervening fall down stairs of November 2012 and bleach incident of November 2015, we are not persuaded to make any finding at this time that any treatment, other than the emergency treatment and surgery employee received on August 20 and 21, 2012, was reasonably required to cure and relieve the effects of the work injury.

At the May 5, 2016, hearing before the administrative law judge, employee indicated he is still undergoing active treatment for his left eye, and that his vision is getting better, but that he has good days and bad days. The parties have not advanced any expert medical opinion or other evidence that would support a finding that employee has reached maximum medical improvement from the effects of the accident on August 20, 2012. At oral argument in this matter, counsel for the employee conceded that it is his position that employee has not yet reached maximum medical improvement. We find insufficient evidence on this record to support a finding that employee has reached maximum medical improvement from the effects of the accident on August 20, 2012.

Employee testified that the medical records and billings offered at the hearing were, as far as he understood, related to treatment necessitated by the effects of the accident of August 20, 2012. We find that employee incurred the following charges for the emergency medical treatment he underwent on August 20 and 21, 2012:

Neither Mr. Menech nor the Vandalia Area Historical Society has paid any amounts to employee to reimburse him for these past medical expenses, and as of the date of the hearing, these bills remained outstanding.

With regard to the other claimed bills, we decline to consider them at this time. As noted above, employee failed to advance expert medical testimony or other evidence to

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permit us to delineate whether his disputed treatment after August 20 and 21, 2012, was reasonably required to cure and relieve the effects of the work injury.

Employee tried to return to work for Mr. Menech in the months after the August 2012 accident, but discovered he was unable, owing to his compromised eyesight, to even drive a nail. Mr. Menech informed employee he did not have any light or modified duty to offer him. Thereafter, employee briefly secured a job at a sawmill, but was fired after he nearly injured a coworker with a chainsaw, an incident that directly resulted from his poor vision following the August 2012 accident.

As we have noted above, the intervening accidents of November 2012 and November 2015 significantly complicate our analysis with regard to the particular diagnoses and conditions that have resulted from the accident of August 2012, and employee has not provided any expert medical testimony that might aid our review. At this time, we deem the record insufficient to permit us to determine whether employee was unable to compete for work in the open labor market owing to the effects of the August 2012 accident after November 23, 2012. However, based on employee's credible testimony at the hearing, we are convinced that the effects of the August 2012 accident significantly hindered employee's ability to find work and remain employed from the date of the accident until November 23, 2012, and ultimately prevented him from successfully competing for work in the open labor market during that time period.

The parties asked the administrative law judge to determine whether on or about August 20, 2012, the Vandalia Area Historical Society and/or Michael Menech were employers operating subject to the Missouri Workers' Compensation Law. Section 287.030 RSMo defines an "employer," and provides, in relevant part, as follows:

1. The word "employer" as used in this chapter shall be construed to mean:

(1) Every person, partnership, association, corporation, limited liability partnership or company, trustee, receiver, the legal representatives of a deceased employer, and every other person, including any person or corporation operating a railroad and any public service corporation, using the service of another for pay; ...

...

(3) Any of the above-defined employers must have five or more employees to be deemed an employer for the purposes of this chapter ... except that construction industry employers who erect, demolish, alter or repair improvements shall be deemed an employer for the purposes of this chapter if they have one or more employees.

The administrative law judge determined that Michael Menech was employee's employer, but that the Vandalia Area Historical Society was not an employer of employee on August 20, 2012. The evidence in this case well supports (and we have found) that Mr. Menech controlled employee's day-to-day activities on the project. We have noted, however, that the funds Mr. Menech paid to employee were ultimately drawn from an account owned by the Vandalia Area Historical Society.

Given that there appears to be scant evidence on the present record to support a finding that Mr. Menech was, in his personal capacity, using the services of another for pay on August 20, 2012, and because the administrative law judge did not cite or discuss the foregoing statutory definition of "employer" in his award, it is unclear to us whether the administrative law judge believed and concluded that Mr. Menech qualified as an employer pursuant to $\S 287.030$, or whether the administrative law judge applied some other theory of employment in this case, such as the line of Missouri decisions standing for the proposition that an unpaid "volunteer" may still be deemed to be in the employment of an individual or entity that exercises the relevant degree of control over the worker, see, e.g., Fielder v. Prod. Credit Asso., 429 S.W.2d 307 (Mo. App. 1968).

The existence of a valid employer/employee relationship triggering the protections and exclusive remedies under the Missouri Workers' Compensation Law is a fundamental question that affects whether the Division of Workers' Compensation and the Commission possess statutory authority to proceed in connection with employee's claim for compensation. See Sodipo v. University Copiers, 23 S.W.3d 807, 810 (Mo. App. 2000). For this reason, we are troubled by the considerable ambiguity that presently exists with regard to the issue of the appropriate identity of the employer in this case.

Ultimately, though, no party to these proceedings has filed an application for review challenging the administrative law judge's determination that the Vandalia Area Historical Society was not an employer of employee on August 20, 2012, but that Michael Menech was an employer operating subject to the law on that date. ${ }^{1}$ Instead, the Second Injury Fund challenges only the sufficiency of employee's evidence as to the issue of the causation of his injuries. Because the administrative law judge's determinations with regard to the employment issue were not challenged by the parties on appeal, we decline, at this time, to revisit the issue whether Michael Menech is properly deemed an employer for purposes of $\S 287.030$, and/or whether the Vandalia Area Historical Society was an employer on August 20, 2012. ${ }^{2}$ See Mell v. Biebel Bros.,

[^0]

[^0]: ${ }^{1}$ Again, the Commission was constrained to return to Michael Menech his attempted application for review as if it had never been filed, owing to his failure to file proof that he had secured the appropriate bond as required pursuant to $\S 287.480 .2 RSMo and 8 CSR 20-3.070.

{ }^{2}$ Similarly, we decline to address any argument or allegation that, at the time of the injury, employee was working as an independent contractor. Although Mr. Menech and the Second Injury Fund both adduced, at the hearing, some evidence that appears to have been directed toward a possible defense that employee was working as an independent contractor rather than as an employee on August 20, 2012, the parties ultimately did not ask the administrative law judge to consider whether employee was working as an independent contractor at the time of the injury; the administrative law judge did not make any such determination; and the Second Injury Fund's application for review filed in this matter does not argue that we should even consider the issue.

Inc., 247 S.W.3d 26 (Mo. App. 2008). Accordingly, for purposes of this temporary award, we will refer hereafter to Mr. Menech as "the employer."

Because there is insufficient evidence to permit us to find that employee is at maximum medical improvement, we have determined that a temporary award is appropriate in this matter, whereby the proceedings are continued pursuant to $\S 287.510$ RSMo and kept open until a final award can be made. We are confident that the parties will either advance the appropriate stipulations, or adduce evidence sufficient to permit the factfinder to resolve the critical issue of the appropriate identity of any employer(s) pursuant to the relevant and controlling statutory and case law provisions, should this matter proceed to another hearing before an administrative law judge.

The parties asked the administrative law judge to determine whether employee gave proper notice to the employer. Section 287.420 RSMo controls, and provides, in relevant part, as follows:

No proceedings for compensation for any accident under this chapter shall be maintained unless written notice of the time, place and nature of the injury, and the name and address of the person injured, has been given to the employer no later than thirty days after the accident, unless the employer was not prejudiced by failure to receive the notice.

The Missouri courts have determined that where an employer receives actual notice of an employee's injury, the burden shifts to employer to demonstrate some prejudice resulted from the employee's failure to provide a written notice meeting the aboveenumerated statutory requirements. See Sell v. Ozarks Med. Ctr., 333 S.W.3d 498, 510 (Mo. App. 2011). If the employer is not shown to be prejudiced, the claim is not barred by operation of $\S 287.420$. Id. The administrative law judge determined that employer had actual notice of employee's injury, and made an implicit finding that employer was not prejudiced by employee's failure to provide the written notice.

No party to these proceedings has challenged the administrative law judge's determinations in this regard. We find the administrative law judge's determinations in this regard to be authorized by statute and to constitute appropriate applications of the law. We conclude that this claim is not barred by $\S 287.420$.

The parties asked the administrative law judge to determine whether the accident caused the injuries and disabilities for which benefits are now claimed. Section 287.020.3 RSMo controls, and provides, in relevant part, as follows:

(1) In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is

defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

(2) An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.

The parties stipulated, at the outset of the hearing before the administrative law judge, their agreement that employee sustained an accident which arose out of and in the course of employment. Accordingly, the only dispute pertaining to "causation" remaining in this matter is that of "medical causation," or the requirement above that an accident be shown to be "the prevailing factor in causing both the resulting medical condition and disability." The Second Injury Fund argues that employee failed to meet his burden of proving medical causation, because he failed to advance testimony from a physician that the accident of August 20, 2012, caused any resulting medical condition or disability with regard to his left eye, and because such medical condition(s) are outside the realm of lay understanding.

The testimony of a claimant or other lay witness can constitute substantial evidence of the nature, cause, and extent of disability when the facts fall within the realm of lay understanding. However, an injury may be of such a nature that expert opinion is essential to show that it was caused by the accident to which it is ascribed. Where the condition presented is a sophisticated injury that requires surgical intervention or other highly scientific technique for diagnosis, and particularly where there is a serious question of pre-existing disability and its extent, the proof of causation is not within the realm of lay understanding nor—in the absence of expert opinion—is the finding of causation within the competency of the administrative tribunal.

*Silman v. William Montgomery & Assocs., 891 S.W.2d 173, 175-76 (Mo. App. 1995)(citations omitted).*

We agree with the Second Injury Fund that certain medical conditions and diagnoses reflected in the medical records, such as conjunctival neoplasm, uveitic cataract, and retrocorneal membrane, are unquestionably beyond the realm of lay understanding. Thus, pursuant to the relevant Missouri case law as reflected in decisions such as *Silman*, we agree that employee's failure to advance credible testimony from a medical

expert prevents us from rendering a finding that the accident of August 20, 2012, was the prevailing factor causing any of these medical conditions, or any disability in connection with same.

On the other hand, where the facts of the accident itself are essentially undisputed, and where there is no evidence that employee suffered from left eye problems of any kind prior to the accident on August 20, 2012, we can determine that the accident was the prevailing factor causing, at the very least, the resulting medical conditions of (1) a foreign object having been lodged in employee's left eye; (2) pain and loss of vision in the left eye; and (3) an immediate need for emergency medical treatment. While undergoing that emergency medical treatment, employee was necessarily rendered unable to perform any work, so we can also conclude that the accident was the prevailing factor in causing at least some disability.

Accordingly, we conclude that the accident was the prevailing factor causing employee to suffer, at the very least, the resulting medical conditions of a foreign object having been lodged in his left eye; immediate pain and loss of vision in the left eye; and at least some temporary disability associated with his need for emergency medical treatment to address these medical conditions. We conclude, therefore, that this claim is compensable pursuant to $\S 287.020 .3$ RSMo.

Section 287.140.1 RSMo controls with respect to the issue of past medical expenses, and provides, in relevant part, as follows:

In addition to all other compensation paid to the employee under this section, the employee shall receive and 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.

It is well-settled in Missouri that an award of past medical expenses is supported when the record includes (1) the bills themselves; (2) the medical records reflecting the treatment giving rise to the bills; and (3) testimony from the employee establishing the relationship between the bills and the disputed treatment. Martin v. Mid-America Farm Lines, Inc., 769 S.W.2d 105, 111-12 (Mo. 1989). Employee provides his claimed medical bills, the medical records reflecting the treatment giving rise to the bills, and he identified the bills in his testimony.

We have found that employee incurred $\ 23,226.27 in past medical expenses for the emergency medical treatment he received on August 20 and 21, 2012. Despite employee's failure to provide expert medical testimony in support of his claim, we have found that the accident of August 20 and 21, 2012, was the prevailing factor in causing employee to have an immediate need for emergency medical treatment. It logically follows that the emergency medical treatment employee underwent on August 20 and 21, 2012, was reasonably required to cure and relieve the effects of the injury employee sustained; we so conclude.

Employee: Billy Hood

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Employer and the Second Injury Fund have not advanced any evidence that would demonstrate that employee is not required to pay the billed amounts, that his liability for the disputed amounts was extinguished, and that the reason such liability was extinguished does not otherwise fall within the provisions of § 287.270 RSMo. See Farmer-Cummings v. Pers. Pool of Platte Cnty., 110 S.W.3d 818 (Mo. 2003), and Maness v. City of De Soto, 421 S.W.3d 532, 545 (Mo. App. 2014). We conclude employer is liable for $23,226.27 in past medical expenses.

For reasons already explained above, we decline at this time to consider any other of employee's claimed past medical expenses.

Future medical treatment

The parties asked the administrative law judge to determine whether employee has sustained injuries that will require future medical care in order to cure and relieve employee of the effects of the injuries. Section 287.140.1 RSMo provides for an award of future medical treatment where the employee can prove there is a reasonable probability of a need for future medical treatment that flows from the work injury. Conrad v. Jack Cooper Transp. Co., 273 S.W.3d 49, 51-4 (Mo. App. 2008). We have found that there is insufficient evidence on this record to support a finding that employee has reached maximum medical improvement from the effects of the work injury. We have also found that employee continues to seek active treatment, including a surgery mere months before the hearing, for his ongoing left eye problems.

Where we have concluded that a compensable injury was sustained; where the parties have not advanced any evidence to demonstrate that employee has reached maximum medical improvement from the effects of that injury; and where employee's emergency treatment following the accident involved placement of a prosthesis in the form of an implanted contact lens, we are of the opinion that there is, at the very least, a reasonable probability at this time that employee has an ongoing need for at least some additional treatment to cure and relieve the effects of the work injury. We conclude, therefore, that employee is entitled to, and employer is liable to provide, that future medical treatment (if any) that may reasonably be required to cure and relieve the effects of the work injury.

Second Injury Fund liability – uninsured employer

The parties asked the administrative law judge to determine the liability of the Second Injury Fund for any uninsured medical expenses. At the outset, we note that employee, in his brief, argues that the Second Injury Fund filed a late answer in this case, such that the factual allegations in employee's claim for compensation should be deemed

³ Of course, an employee may be entitled to future (i.e. post-award) medical care even after reaching maximum medical improvement, see Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 248 (Mo. banc 2003). Our award herein of "future" treatment might be better termed an award of "ongoing" treatment, as there is insufficient evidence to permit us to find that employee's compensable left eye injury has reached the point of maximum medical improvement.

Amplovee: Billy Hood

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admitted pursuant to 8 CSR 50-2.010(8)(B). We are not persuaded, for the following reasons.

First, we note that employee did not ask the administrative law judge to address this issue at trial, and thus arguably waived any argument that the Second Injury Fund filed a late answer, or that such late filing should have any effect in this case. See *Lawson v. Emerson Elec. Co.*, 809 S.W.2d 121 (Mo. App. 1991).

More importantly, the records of the Division of Workers' Compensation (of which we hereby take administrative notice) reveal that the Division did not acknowledge employee's September 15, 2014, claim for compensation in this matter until November 14, 2014. The Division's acknowledgment letter of that date instructed that the Second Injury Fund was permitted to file an answer to the claim for compensation within thirty days. The Second Injury Fund filed its answer on November 20, 2014. Thus, we conclude the Second Injury Fund's answer was timely filed. We conclude that 8 CSR 50-2.010(8)(B) is not implicated in this matter.

Turning to the substantive issue of Second Injury Fund liability in the context of an employer's failure to insure its workers' compensation liability, § 287.220.7 RSMo controls, and provides as follows:

> If an employer fails to insure or self-insure as required in section 287.280, funds from the second injury fund may be withdrawn to cover the fair, reasonable, and necessary expenses incurred relating to claims for injuries occurring prior to January 1, 2014, to cure and relieve the effects of the injury or disability of an injured employee in the employ of an uninsured employer consistent with subsection 3 of section 287.140, 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 incurred relating to a death occurring prior to January 1, 2014, 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. The office of the attorney general of the state of Missouri shall bring suit in the circuit court of the county in which the accident occurred against any employer not covered by this chapter as required in section 287.280.

The Division of Workers' Compensation's rule 8 CSR 50-2.010(8)(B) provides as follows: "Unless the Answer to Claim for Compensation is filed within thirty (30) days from the date the division acknowledges receipt of the claim or any extension previously granted, the statements of fact in the Claim for Compensation shall be deemed admitted for any further proceedings."

MNKOI 0006032167

We have adopted, for purposes of this temporary award, the administrative law judge's determination that Michael Menech was operating as an employer subject to the Missouri Workers' Compensation Law on August 20, 2012. We have found that employer failed to insure his liability as required by § 287.280 RSMo as of August 20, 2012. Pursuant to the foregoing provision, we conclude that funds from the Second Injury Fund should be withdrawn to cover the fair, reasonable, and necessary expenses that may be incurred to cure and relieve the effects of the injury or disability.

We conclude, therefore, that the Second Injury Fund is ordered to pay employee's past medical expenses in the amount of $\ 23,226.27, and to provide that future medical care that may reasonably be required to cure and relieve the effects of employee's work injury. Pursuant to $\S \S 287.220 .7$ and 287.140 .10 , we conclude that the Second Injury Fund has the right to select the licensed treating physician.

The parties asked the administrative law judge to determine the appropriate average weekly wage for employee, and corresponding rates of compensation. Section 287.250 RSMo provides a number of different methods for calculating an appropriate average weekly wage, depending upon the length of the employment and the manner in which the employer compensated the employee.

For his work, employee received $\ 12.50 per hour. The administrative law judge assumed a 40 -hour week at employee's hourly rate of $\ 12.50 per hour to arrive at an average weekly wage of $\ 500.00 and corresponding rate of compensation of $\ 333.33 for temporary total and permanent partial disability benefits. The administrative law judge did not identify which provision of $\S 287.250$ he utilized to calculate the average weekly wage in this manner. However, no party has challenged the administrative law judge's determinations in this regard.

Section 287.250.4 RSMo permitted the administrative law judge wide discretion in determining an average weekly wage that he deemed to be fair and just. Assuming the administrative law judge proceeded pursuant to that section, we conclude the administrative law judge's determinations were authorized by statute and constitute appropriate applications of the law. We conclude that the appropriate weekly rate of compensation is $\ 333.33 for temporary total and permanent partial disability benefits.

The parties asked the administrative law judge to determine whether temporary total disability benefits are owed to the employee. Employee claims he was temporarily and totally disabled from work from August 20, 2012, through February 8, 2016, owing to the effects of the work injury. Employee did not advance any expert medical opinion that he was temporarily and totally disabled during this time period, and does not identify medical treatment records that would suggest any treating physician restricted him from all work during this time period.

On the other hand, the Missouri courts have long held that "a claimant is capable of forming an opinion as to whether she is able to work, and her testimony alone is sufficient evidence on which to base an award of temporary total disability." Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 249 (Mo. 2003). We have found employee's testimony about his initial difficulty returning to work to be credible. We have also noted that the intervening accidents/events of November 2012 and November 2015 have complicated our analysis with regard to the particular diagnoses and conditions that have resulted from the accident of August 2012.

At this time, we deem the record sufficient to support a finding that employee was temporarily and totally disabled from work owing to the effects of the work injury from August 20, 2012, through November 23, 2012. However, owing to the possibility that employee may have suffered a new and unrelated left eye injury and/or disability in the November 2012 event, and owing to employee's failure to provide expert medical testimony to apportion such unrelated disability (if any) against the effects of the work injury, see Moriarty v. Treasurer of Mo., 141 S.W.3d 69, 72 (Mo. Ct. App. 2004), we conclude the record is insufficient to permit an award of temporary total disability benefits after November 23, 2012.

Consequently, we conclude employer is liable for $\ 4,523.76 in temporary total disability benefits.

The parties asked the administrative law judge to determine the nature and extent of any permanent partial disabilities. We have determined that the record is not sufficient to permit us to render a finding that employee has reached maximum medical improvement from the effects of the August 20, 2012, work injury. Consequently, we conclude that the issue of the nature and extent of any permanent disability is not ripe for determination at this time. See Cantrell v. Baldwin Transp., Inc., 296 S.W.3d 17, 20 (Mo. App. 2009).

The award of the administrative law judge is modified.

Employer is liable to employee for $\ 23,226.27 in past medical expenses.

Employer is liable to employee to provide that medical treatment that may reasonably be required, pursuant to $\S 287.140$ RSMo, to cure and relieve the effects of his work injuries.

The appropriate weekly rate of compensation for temporary total and permanent partial disability benefits is $\ 333.33.

Employee is entitled to, and employer is hereby ordered to pay, $\ 4,523.76 in temporary total disability benefits.

The Second Injury Fund is ordered, pursuant to $\S 287.220 .7 RSMo, to pay employee his past medical expenses in the amount of \ 23,226.27, and to provide that future medical care that may reasonably be required to cure and relieve the effects of employee's work injury.

This award is subject to a lien in favor of Anthony Laramore, Attorney at Law, in the amount of 25 % for necessary legal services rendered.

Any past due compensation shall bear interest as provided by law.

This award is only temporary or partial. It is subject to further order, and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of $\S 287.510$ RSMo.

The award and decision of Administrative Law Judge David L. Zerrer, issued August 9, 2016, is attached solely for reference.

Given at Jefferson City, State of Missouri, this $19^{\text {th }}$ day of July 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Billy Hood

Injury No. 12-107135

Dependents:

Begre the

Employer: Michael Menech/Vandalia Area Historical Society

DIVISION OF WORKERS' COMPENSATION

Additional Party: Second Injury Fund

Department of Labor and Industrial

Relations of Missouri

Injurer: Uninsured

Jefferson City, Missouri

Hearing Date: May 5, 2016/May 23, 2016

Checked by: DLZ

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 20, 2012
5. State location where accident occurred or occupational disease was contracted: Audrain County, Missouri
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: Claimant was using saw to cut wood when foreign material hit eye
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Left eye
14. Nature and extent of any permanent disability: 50 % of left eye
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? None

Employee: Billy Hood Injury No. 12-107135

1. Value necessary medical aid not furnished by employer/insurer? \51,183.42
2. Employee's average weekly wages: \ 500.00 per week
3. Weekly compensation rate: $\ 333.33 per week
4. Method wages computation: As set out in this award

1. Amount of compensation payable:

Unpaid medical expenses: $\ 51,183.42

181 weeks of temporary total disability (or temporary partial disability)- $\ 60,332.73

70 weeks of permanent partial disability from Employer-\$23,333.10

1. Second Injury Fund liability: Yes X No Open

Uninsured medical benefits $-\ 51,183.42

TOTAL: $\ 134,849.25

1. Future requirements awarded: Open

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: Anthony Laramore

Employee: Billy Hood

Employee: Billy Hood

Injury No: 12-107135

Dependents:

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Department of Missouri

Jefferson City, Missouri

Injury No: 12-107135

Department of Labor and Industrial

Relationship: Second Injury Fund

Relationship: Second Injury Fund

Insurer: Uninsured

Checked by: DLZ

On the $5^{\text {th }}$ day of May, 2016, the parties appeared before the undersigned Administrative Law Judge for final hearing. Claimant appeared in person and by his attorney, Anthony Laramore. Alleged employer Vandalia Area Historical Society appeared by its attorney, Robert Hanson. Alleged employer Michael Menech appeared in person, self-represented. The Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, appeared by Assistant Attorney General Erin Smith. The record was ordered to remain open until 5:00 p.m. May 23, 2016.

The parties have entered into a stipulation pertaining to certain facts which are not at issue in the claim, as follows, to wit: Any alleged employers' liability was uninsured; the parties agree that on or about August 20, 2012, Claimant sustained an accident which arose out of the course of and scope of employment; the employment occurred in Audrain County, Missouri, and the parties agree that Audrain County, Missouri, is the proper venue for this hearing; no temporary disability benefits have been paid prior to the date of this hearing; no employer has paid medical benefits prior to the date of this hearing; Claimant's attorney seeks approval of an attorney fee of 25 % of the amount of any award.

Whether on or about August 20, 2012, Michael Menech and/or Vandalia Area Historical Society were employers operating subject to the Missouri Workers' Compensation Law?

Whether the Claimant gave either alleged employer proper notice?

Whether the accident caused the injuries and disabilities for which benefits are now being claimed?

Whether either alleged employer is obligated to pay for past medical expenses?

Whether the Claimant has sustained injuries that will require future medical care in order to cure and relieve the Claimant of the effects of the injuries?

What is the proper rate?

Whether temporary total benefits are owed to the Claimant?

The nature and extent of any permanent disabilities?

The liability of the Second Injury Fund for uninsured medical expenses?

A legal file was established for this hearing which consisted of the following documents, to wit: Claim for Compensation, filed with the Division July 31, 2014; Amended Claim for Compensation, filed with the Division September 15, 2014; Answer of alleged employer Vandalia Area Historical Society to Claim for Compensation, filed with the Division August 29, 2014; Answer of alleged employer Vandalia Area Historical Society to Amended Claim for Compensation, filed with the Division September 26, 2014; notice by Division to Second Injury Fund of Claim for Compensation filed, dated November 14, 2014; Answer of Second Injury

Employee: Billy Hood

Injury No. 12-107135

Fund to Amended Claim for Compensation, filed with the Division November 20, 2014; Request for Final Hearing, filed with the Division January 25, 2016.

Claimant offered, and there was admitted without objection, Exhibits 1 through 7 and Exhibits 9 through 22.

Billy Hood, claimant herein, testified in his own behalf. Claimant testified that during August 2012 he was working as a carpenter combining two buildings together into one structure. He was hired by alleged employer Menech, hereinafter referred to Menech, and that he worked on this particular project, as well as other projects, which Menech was building for a period of about one year prior to the injury date of August 20, 2012. He stated that in August 2012, Menech had three separate jobs going and that Menech employed 20 to 25 people. Claimant also stated that he considered Menech his employer, and that from time to time, Menech would ask Claimant to locate potential workers who would be interviewed by Menech. Menech did the hiring. Claimant testified that sometimes he would terminate workers, but that no one was ever terminated without Menech's prior approval.

Claimant testified that Menech was on the job site every day as a supervisor and inspector of the work performed by Claimant and other workers. Claimant stated that if he needed supplies, he always contacted Menech. He also indicated that Menech determined the start and stop time for all the workers, including Claimant. Menech kept time records for workers and determined the amount for workers' paychecks. Claimant testified that he had no contract of employment with Menech. He further stated that Menech hired him, that Menech set the hours of all workers, that Menech provided all materials necessary to do the job. Further that Claimant provided his own small tools, but Menech provided all the larger equipment such as scaffolding,

**Employee:** Billy Hood

**Injury No.:** 12-107135

sand blasting equipment, and other equipment necessary to do a building remodel. Claimant testified that Menech "was the boss."

Claimant testified that on August 20, 2012, he was working on a project for Menech on property owned by Vandalia Area Historical Society. He was in the process of sawing on a reclaimed piece of lumber when the saw hit a screw or nail, and the object came out of the board and struck Claimant in the left eye tearing his cornea. Claimant notified Menech of the incident within five minutes of the occurrence, and Menech administered aid to Claimant by trying to remove the metal piece from Claimant's left eye by the use of a tweezers. After an unsuccessful attempt to remove the foreign body from Claimant's left eye, he proceeded to the doctor for treatment.

Claimant identified Exhibits 9 through 22 as medical records and bills for treatment which he received as a result of the accident of August 20, 2012. He specifically identified Exhibit 8 as a bill from an anesthesiologist in connection with treatment from this injury.

Claimant testified that his treatment was administered at the University Medical Center, Mason Eye Institute. Claimant also stated that there was a gap in the chronology of treatment because at one point the treating physicians told Claimant he could not have more treatment until previous treatment was paid. Claimant re-initiated treatment in October or November 2015 and received a cornea transplant in February 2016.

Claimant testified that since the transplant, he is beginning to get some vision in his left eye. He stated that bright sunlight makes his eye burn, some days worse than others. Claimant wore an eye patch over his left eye at the hearing. Claimant indicated that the only employment he has had since his injury of August 20, 2012, was at a saw mill, but he was terminated because of his sight.

Employee: Billy Hood

Injury No. 12-107135

Claimant testified that he has never received a W-2 or 1099 Form from Menech. He also indicated that he had no problem with the vision in his left eye prior to the injury of August 20, 2012, nor has he had any new incidents with regard to the vision in his left eye since the date of injury.

Alleged employer Vandalia Area Historical Society had no cross-examination. On cross-examination by Menech, Claimant admitted that he worked for Menech for about one year on a Victorian house and the Cornerstone project, where the injury occurred. He also admitted that there were three different projects going in August 2012, the Cornerstone project, a home located in Vandalia, Missouri, and Menech's personal house.

Claimant admitted that the boards he was working on came from a stock pile located at Menech's house. He also admitted that he had observed two workers be terminated by Menech at separate times. Claimant admitted that Menech would tell workers what time to report for work for the next day and that the times varied depending on time of year, weather and tasks to be performed.

On cross-examination by the Second Injury Fund, Claimant admitted that no lawsuit had been filed with regard to the accident of August 20, 2012, and there was no other source of funds to pay medical bills.

Claimant admitted that usual quitting time for a day would be between 3:00 and 4:00 p.m. and that Menech would decide what time workers would quit for a day. He also admitted that if a worker was sick or going to be late, Menech was to be contacted. Claimant admitted that he was making $12.50 per hour from the time he started working on the Victorian house project and that he was never paid by the job.

**Employee:** Billy Hood

**Injury No. 12-107135**

Michael Menech was called as a witness by Claimant. Menech testified that he was paid by the Vandalia Area Historical Society and that he considered himself an employee. He then testified that he was self-employed. Menech testified that a member of the historical society would call every night to discuss progress and to plan work on the project. Menech stated that he perceived himself as self-employed manager of the historical society project. Menech also stated that he was responsible for hiring workers for the project and that he had 20 to 25 people working in August 2012. Menech kept track of workers' time during the week and at the end of the week he would compare notes with workers to prepare final payroll records.

Menech stated that Claimant worked for him for about three weeks before the Cornerstone project started, but that Claimant was not actually working for Menech, but Claimant was taking directions from Menech. Menech indicated that he determined what hourly rate a worker would be paid and further that he had authority to hire and to fire workers.

Menech testified that when Claimant returned to work after the accident of August 20, 2012, Claimant tried to work, but Claimant could not perform his job tasks because of his eye injury. At that time Claimant was told by Menech that they did not have any work that Claimant could perform, since there was no light duty available. Menech told Claimant: "I don't have anything else, check back later."

Menech testified that payroll was determined by workers turning in their hours; Menech would review and approve and issue payroll checks. Menech had a supply of pre-signed checks drawn on the account of the historical society.

Menech testified that at the time of Claimant's accident, he was not on the job site, but when he returned he was told of the injury. He tried to wash out Claimant's left eye with water.

Employee: Billy Hood Injury No. 12-107135

and a Q-tip. Menech did not recall trying to use a tweezers to remove the foreign body from Claimant's eye. Menech testified that he was paid $\ 25 per hour for his work on the project.

Menech testified that when he hired an employee, he would ask if they were selfemployed and whether they had insurance; he also stated that he never attempted to verify any information given by a potential worker. Menech identified Second Injury Fund Exhibit I as an affidavit which he received from the Second Injury Fund. Menech stated that all his responses to the questions posed in the affidavit were true and correct.

Menech testified that he had been in construction for "years." He stated that he does not have a business, that he is just a "handy-man."

On cross-examination by the historical society, Menech admitted that he was the person who decided if a potential worker had the skills to do the work they were performing and that he did the hiring of the workers. Menech admitted that when he interviewed a potential worker, he would ask if self-employed and how did they want to get paid, by estimate or by the hour. He also admitted that the historical society representative would visit the site no more than one or two times per month and that the remaining business was conducted by telephone.

On cross-examination by the Second Injury Fund, Menech admitted that Claimant was hired prior to the project where the accident occurred. He also admitted writing at least one payroll check to Claimant prior to the accident date. He further admitted that there were no written applications by any workers.

Lori Shaw testified on behalf of Claimant. Ms. Shaw testified that she worked for Menech for several months prior to August 2012, and that she was paid $\ 9.00 per hour. Ms. Shaw testified that she has worked with Claimant and that she has known him for about six years and that she was working with Claimant on August 20, 2012, when his accident occurred.

Employee: Billy Hood Injury No. 12-107135

She stated that when the accident occurred, she ran out and got a first-aid kit and washed Claimant's eye.

Ms. Shaw testified that she kept track of her hours each week and compared her record with Menech's records. She also stated that Menech provided most of the equipment needed on the job including tall ladders, boards, and materials. She indicated that she was not aware of any other people being hired while she was working at this job. She also stated that she knows Paul Ray, the historical society representative, and that she never discussed employment with Paul Ray. Ms. Shaw testified that she worked 35 to 40 hours per week; that they usually began work at 8:00 a.m., except during hot weather when they would start work earlier and work until 2:00 or 3:00 p.m. Ms. Shaw testified that there were about 30 people working on the job site in August 2012.

Ms. Shaw testified that she was Claimant's "cut man" which meant she would often cut boards at the direction of the Claimant. Ms. Shaw testified that she was told by Menech that if she was hurt on the job she would be "SOL."

Claimant offered, and there was admitted without objection, Exhibits 9 through 18 and 21 and 22, medical records which detail the extensive medical treatment administered to Claimant after the injury including a corneal transplant of the left eye which occurred in 2016. The medical records admitted into evidence generally support the testimony of Claimant with regard to the treatment received following the injury of August 20, 2012. Also contained in Exhibits 9, 13, 16, 17, 18, and 22 were records of billings for medical services rendered to Claimant from the date of injury up to February 2016. Exhibit 16, in part, contains records and billings for treatment following an incident where Claimant apparently fell down some steps on

Employee: Billy Hood

Injury No. 12-107135

November 23, 2012, at a time when, by Claimant's admission and statements, Claimant was voluntarily intoxicated.

Neither Michael Menech nor the Vandalia Area Historical Society submitted any oral testimony or written exhibits at the hearing. The Second Injury Fund did not offer any oral testimony but did offer one exhibit into evidence which was a copy of an affidavit directed to Menech along with a writing signed by Mr. Menech.

Whether on or about August 20, 2012, Michael Menech and/or Vandalia Area Historical Society were employers operating subject to the Missouri Workers' Compensation Law? Whether the Claimant gave an employer proper notice?

Claimant was hired by Menech prior to his date of injury. Claimant credibly testified that Menech inspected all work; gave out work assignments; determined the hours in each work day; provided all materials necessary for Claimant to perform his job; had the authority to hire and to fire Claimant and his co-workers. The only direct evidence that Vandalia Area Historical Society was an employer is the fact that paychecks were written on a weekly basis on an account owned by the Vandalia Area Historical Society. There was also credible evidence that Menech determined the amount of pay due to each worker and either filled out the paychecks or advised someone from the historical society how much to make the check for.

On August 20, 2012, Menech was made aware of Claimant's injury, and Menech assisted in administering first aid to Claimant after the accident prior to Claimant seeking professional medical treatment. Menech had actual knowledge of the accident on the date of injury.

**Employee:** Billy Hood

**Injury No.:** 12-107135

Based on the above findings, all the evidence adduced at the hearing, both oral and written, I find there is substantial and competent evidence that Vandalia Area Historical Society was not an employer of Claimant on August 20, 2012. I further find that Michael Menech was the employer of Claimant on August 20, 2012, hereinafter referred to as Employer, and that Michael Menech had more than one employee and therefore, was operating subject to the Missouri Workers' Compensation Law.

I find that Claimant gave proper notice of the injury and that Employer had actual knowledge of Claimant's injury on August 20, 2012.

Whether the accident caused the injuries and disabilities for which benefits are now being claimed?

Whether the Employer is obligated to pay for past medical expenses?

Whether the Claimant has sustained injuries that will require future medical care in order to cure and relieve the Claimant of the effects of the injuries?

Claimant's injury caused a serious medical condition to the cornea of Claimant's left eye. A foreign body was lodged in the eye for which Claimant has had extensive medical treatment, which treatment continues at the date of this hearing and will continue into the future. Claimant admitted exhibits which contain billings for medical services rendered totaling 56,001.76. Of the amount submitted, the sum of 4,818.34 are for charges in respect of medical treatment provided to Claimant on November 23, 2012, the date when Claimant admitted that he became voluntarily intoxicated and fell down some stairs, for which event Claimant sought medical treatment for the effects of the fall, including, but not limited to the left eye.

Based on the findings set out above, all the evidence adduced at the hearing, both oral and written, I find that there is substantial and competent evidence that Claimant's accident of

**Employee:** Billy Hood

**Injury No.:** 12-107135

August 20, 2012, caused the need for treatment and further that the accident caused the injuries and disabilities for which benefits are now being claimed with the exception of the treatment sought and administered on November 23, 2012.

I find that Claimant has incurred medical expenses for treatment necessary to cure and relieve the effects of his injuries in the sum of 51,183.42 (56,001.76 - $4818.34 = $51,183.42).

I further find that there is substantial and competent evidence that Claimant has sustained his burden of proof that there is a reasonable probability that Claimant will require medical treatment in the future in order to cure and relieve the effects of the injury sustained on August 20, 2012.

I further find that Employer, Michael Menech, is responsible to provide all medically reasonable medical care in order to cure and relieve the effects of Claimant's injury. Employer Michael Menech has not paid any medical expense of the Claimant incurred as a result of the injury of August 20, 2012. Employer, Michael Menech, admitted that he was not insured for workers' compensation liability. I find that Employer Michael Menech is responsible to provide for and pay for the medical treatment administered to Claimant in the sum of $51,183.42. I further find that Employer, Michael Menech, is responsible to provide such future medical treatment to the Claimant as may be necessary to cure and relieve the Claimant of the effects of the injury.

Employer, Michael Menech, is hereby ordered to provide to Claimant such medical treatment in the future as may be necessary to cure and relieve Claimant of the effects of the injury with such physician or physicians which may be selected by the Claimant for an indeterminate amount of time.

Employee: Billy Hood

Injury No. 12-107135

Employer, Michael Menech is hereby ordered to reimburse Claimant in the sum of $51,183.42, as and for medical expense incurred by Claimant, which was the responsibility of Employer, Michael Menech.

I find these issues in favor of Claimant.

**What is the proper rate?**

The Claimant testified that he worked full time on the project where he was injured and that he was started out at $12.50 per hour. The Claimant stated that Employer, Menech, set the hours for each day and that the hours ranged from 20 hours to 50 hours per week. Claimant worked as many hours as Employer Menech dictated. After a review of all the evidence adduced at the hearing, both oral and written, I find that there is substantial and competent evidence that Claimant was hired to work on a full time basis at the rate of $12.50 per hour. I further find that a proper average weekly wage should be calculated on the basis of 40 hours per week since Claimant was hired to work full time and the hours in any given week varied. I find that Claimant's average weekly wage was 500.00 per week, sufficient to establish a compensation rate of 333.33 per week for temporary total disability, permanent total disability, and permanent partial disability.

**Whether temporary total benefits are owed to the Claimant?**

Claimant testified that he did not work from the date of injury up to the time that he received a cornea transplant in February 2016. Since that date, he has had some work, but his vision continues to be impaired. Claimant seeks temporary total disability benefits from August 20, 2012, through February 8, 2016.

Employee: Billy Hood

Injury No. 12-107135

After a review of all the evidence adduced at the hearing, both oral and written, and based on the record as a whole, I find there is substantial and competent evidence that Claimant was not available on the open labor market because of his injury from August 20, 2012, until February 8, 2016, a period of 181 weeks. The compensation rate, as set out above is $333.33 per week.

Employer, Michael Menech, is hereby ordered to pay to Claimant the sum of 60,332.73 (181 weeks x 333.33 = $60,332.73) as and for temporary total disability benefits from August 20, 2012, up to and including February 8, 2016.

I find this issue in favor of Claimant.

**The nature and extent of any permanent disabilities?**

Claimant testified that he was blind in his left eye from August 20, 2012, until his corneal transplant on February 8, 2016. He stated that now he is beginning to get some vision returning since the transplant. He indicated that brightness from the sun gives him pain in his left eye and that the discomfort in his eye is every day, but some days are worse than others.

After a review of all the evidence adduced at the hearing, both oral and written, and based on the record as a whole, I find that Claimant has suffered a 50% disability referable to the left eye. Claimant’s compensation rate is 333.33 per week. I find that Claimant is entitled to the sum of 23,333.10 (50% x 140 = 70 weeks x $333.33 = $23,333.10) as and for permanent partial disability to the left eye.

Employer, Michael Menech, is hereby ordered to pay to Claimant the sum of $23,333.10 as and for permanent partial disability.

I find this issue in favor of Claimant.

Claimant testified that no employer has paid any of his medical expenses prior to the date of this hearing. Employer, Michael Menech, admitted that he did not carry workers' compensation insurance.

Based on the findings and rulings set out above, I find that there is substantial and competent evidence that Claimant has incurred medical expenses of $\ 51,183.42, in order to cure and relieve the effects of this injury, which expenses should have been paid by Employer, Michael Menech. I further find that none of the aforementioned medical expenses which were the responsibility of Employer, Michael Menech, have been paid. I further find that, based on the findings and rulings set out above, that Claimant is entitled to future medical care to cure and relieve the effects of the injury of August 20, 2012, which are the responsibility of the Employer, Michael Menech.

I find that Employer, Michael Menech, was uninsured at the time of Claimant's injury.

Therefore, is hereby ordered that the Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, reimburse Claimant for reasonable medical expenses incurred as a result of the injury of August 20, 2012, in the sum of $\ 51,183.42. I further order the Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, to provide to Claimant such future medical treatment as may be necessary to cure and relieve the effects of the injury, as may be recommended from time to time by the physician or physicians selected by Claimant.

I find this issue in favor of Claimant.

Employee: Billy Hood Injury No. 12-107135

Claimant's attorney has requested approval of an attorney fee of 25 % of the amount of any award. Claimant's attorney's fee request is hereby approved. Claimant's attorney is hereby awarded an attorney fee of 25 % of the amount of this award. Claimant's attorney is awarded a lien on the proceeds of this policy unless and until the attorney fee shall have been paid in full.

Made by: $\qquad$

David L. Zerrer

Administrative Law Judge

Division of Workers' Compensation