Kendall Halterman v. Jason Sawyer and Jeremy Huffman

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

**Injury No.:** 10-059071

**Employee:** Kendall Halterman, deceased

**Claimant:** Kimberly Halterman

**Employers:** Jason Sawyer and Jeremy Huffman

**Insurer:** None

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the parties' briefs, heard the parties' arguments, and considered the whole record. Pursuant to § 286.090 RSMo, we modify and supplement the award and decision of the administrative law judge (ALJ). We adopt the findings, conclusions, decision, and award of the ALJ to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The ALJ heard this matter on January 31, 2018. The employer/insurer did not appear. The Second Injury Fund (SIF) stipulated that:

- Employer was uninsured;

- The Missouri Division of Workers' Compensation (Division) has jurisdiction to hear this matter;

- Employee notified employer of his injury as required by law;

- Employee timely filed a claim for compensation.

The ALJ found the following issues in dispute:

- Whether employee's daughter Kimberly Halterman should be substituted as successor to the employee's rights in this matter;

- Whether employer was operating subject to the Missouri Workers' Compensation Law (Law) on June 2, 2010;

- Whether Kendall Halterman was an employee of employer;

- Whether Kendall Halterman was working subject to the Law in Lexington, Lafayette County, Missouri;

- Whether Kendall Halterman sustained an injury by accident arising out of and in the course of his employment;

- The employee's weekly wage and compensation rates;

- Employer's liability for medical expenses totaling $125,717.87;

- Nature and extent of employee's disability;

- Liability of the SIF for any medical bills awarded to employee.

Imprv No.: 10-059071

Employee: Kendall Halterman, deceased

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The ALJ determined as follows:

- Kimberly Dechell Halterman is employee's daughter and is entitled to employee's benefits as his sole living heir pursuant to § 287.230.1; Ms. Halterman is employee's successor in interest.

- Employee's Exhibit E, transcript of a December 15, 2010, Kansas preliminary hearing, is admissible on the issues in dispute.

- Employee was an employee of the alleged employers Jason Sawyer and Jeremy Huffman.

- Employee was working subject to the Missouri Workers' Compensation Law in Lexington, Lafayette County, Missouri on June 2, 2010.

- Employee sustained an injury by accident while working for employers on June 2, 2010. While cleaning out the back of a dump truck that day at employers' request employee slipped and fell ten to twelve feet, landing on his head and shoulder.

- Employee's average weekly wage was 300.00 and his compensation rate was 200.00 per week.

- Employee was permanently and totally disabled from the date of the injury to the date of his death, due solely to his June 2, 2010, work injury.

- Medical care and bills from June 2, 2010, to June 25, 2012, were reasonable and necessary to cure and relieve employee's June 2, 2010, injury. Employer is not responsible for medical bills employee incurred after June 25, 2012, because these expenses were attributable to a new and intervening injury on that date that was not work related.

- The total amount of medical bills owed by employer to employee for medical expenses related to his June 2, 2010, work injury is 48,288.50.

- The SIF is liable for medical bills in the amount of 48,288.50. Liberty Hospital's alleged charges of 84,476.43 were reduced to 27,199.25 due to Medicaid's payment of that amount.

Employee filed a timely application for review on May 29, 2018, alleging the ALJ's award of past medical incorrectly discounted Liberty Hospital's bill based on a mistaken belief that the bill was reduced by Medicaid payments, and alleging that Liberty Hospital's entire bill remains due and owing.

The SIF also filed an application for review on May 29, 2018, citing the following errors in the ALJ's award:

1. Awarding Kimberly Halterman $48,288.50 for unpaid medical bills accrued by the employee in connection with his alleged injury because unpaid medical bills do not qualify as compensation to which she may be entitled to as a dependent, personal representative, or other person entitled thereto based on the plain language of § 287.230 RSMo.
2. Overruling the SIF's objection to admission of the employee's Kansas prehearing testimony, and relying on this testimony to find essential facts of the claim, in that the Missouri SIF was not a party to the employee's Kansas workers' compensation claim, was not present at the time of the testimony.

Injury No.: 10-059071

Employee: Kendall Halterman, deceased

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and because the Missouri SIF's interest was not in privity with interest of the Kansas SIF for purposes of this testimony.

1. Determining that Kimberly Halterman was employee's proper successor because this determination was completed outside of the guidelines set out in § 473.663 RSMo.¹

For the reasons stated below, we modify the award of the ALJ referable to the SIF's liability for employee's medical bills. In all other respects, we affirm and adopt the award and decision of the ALJ, as supplemented herein.

Discussion

Appointment of Employee's Daughter, Kimberly Halterman, as His Successor

We adopt the ALJ's findings regarding substitution of claimant Kimberly Halterman for the deceased employee in this matter pursuant to § 287.230. We further find that the ALJ properly substituted claimant Kimberly Halterman as the successor to employee's rights in this proceeding pursuant to § 287.580.

The SIF cites no legal authority in support of its suggestion that the Division or the Commission may not substitute Kimberly Halterman as successor to employee Kendall Halterman's rights because Ms. Halterman was not judicially determined to be the employee's sole heir-at-law pursuant to § 473.663.

Section 287.580 provides:

> If any party shall die pending any proceedings under this chapter, the same shall not abate, but on notice to the parties may be revived and proceed in favor of the successor to the rights or against the personal representative of the party liable, in like manner as in civil actions.

In *Elsworth v. Wayne Cty.*, 547 S.W.3d 599 (Mo. App. 2018), the deceased employee's wife filed a motion with the court of appeals, requesting that the court issue an order substituting her as the respondent in the appeal. The court of appeals deferred to the Commission to determine whether the widow was the proper successor to the employee's rights pursuant to § 287.580 RSMo. *Id.*

In *Accident Fund Ins. Co. v. Casey*, 550 S.W.3d 76 (Mo. 2018), the Supreme Court upheld the Commission's substitution of the deceased employee's widow as his successor.

¹ Section 473.663 RSMo provides, in pertinent part, "1. If a person has died leaving property or any interest in property in this state and if no administration has been commenced on the estate of such decedent in this state within one year after the date of decedent's death, and if no written will of such decedent has been presented for probate in this state within the time period provided in subsection 3 of section 473.050, then any person claiming an interest in such property as heir or through an heir may file a petition in the probate division of the circuit court which would be of proper venue for the administration of the estate of such decedent to determine the heirs of the decedent at the date of the decedent's death and their respective interests or interests as heirs in the estate."

MNKOI 0000031167

Injury No.: 10-059071

Employee: Kendall Halterman, deceased

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pursuant to § 287.580 even though the widow had failed to file formal suggestion of the employee's death or a written motion for substitution. The Court held that the widow's filing of an amended claim was a de facto suggestion of death and an oral motion at the outset of the ALJ's hearing was sufficient to properly substitute the widow as the successor to the deceased employee's rights. *Id.* 82-83.

The record in this case includes the following uncontroverted evidence:

- Claimant's attorney Don Taylor's statement that employee had no assets to probate—other than what might be received from the award—and that no estate was open. *Transcript*, 13.

- Kimberly Halterman's testimony that Kendall Halterman is her father, that at the time of Mr. Halterman's death his wife was deceased, and that Ms. Halterman is employee's only child and his heir at law. *Transcript*, 51.

- A copy of Kimberly Halterman's birth certificate. *Transcript*, 558.

- A copy of Kendall Halterman's death certificate. *Transcript*, 559.

- Kimberly Halterman's Notice of Successor alleging she is Kendal Halterman's sole heir-at-law and proper successor, dated November 27, 2017. *Transcript*, 733-735.

- The Circuit Court of Lafayette County's order, dated October 18, 2016, substituting Kimberly Halterman as party plaintiff for deceased plaintiff Kendall Halterman in Case No. 15LF-CV00547, an action against Jason C. Sawyer and Jeremy A. Huffman, d/b/a American General Contracting, et al. *Transcript*, 738.

Based on the statutory authority granted in §§ 287.230 and 287.580, as interpreted by the courts in *Elsworth* and *Casey*, supra, and the above uncontroverted evidence in the record we find that the ALJ properly granted the claimant's substitution motion. We affirm the ALJ's designation of Kimberly Halterman as the successor to the deceased employee Kendall Halterman's rights in this matter.

**Admission of Employee's Exhibit E, Transcript of a December 15, 2010, Preliminary Hearing before the Kansas Division of Workers' Compensation**

The SIF urges that the ALJ erred in admitting employee's Exhibit E, a transcript of the employee's testimony at a December 15, 2010, preliminary hearing before the Kansas Division of Workers' Compensation, and in relying on this testimony "to find the essential facts of the claim." The SIF objects to employee's Exhibit E on the basis that the Missouri SIF was unrepresented and had no opportunity to cross-examine the employee at the hearing. Counsel for the SIF argues that the Missouri and Kansas SIFs did not share a privity of interest in the employee's claim and that the Kansas SIF's cross-examination of employee at the preliminary hearing unfairly favored Missouri SIF liability.

We agree with the ALJ's interpretation of case law discussing admission of a deposition in a case where a party was not present at the deposition and the "privity of interest" exception that allows admission of such evidence under certain circumstances. *Bartlett v. Kansas City*

2 Second Injury Fund's Application for Review, p. 2.

Injury No.: 10-059071

Employee: Kendall Halterman, deceased

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Public Service Co., 349 Mo. 13, 160 S.W. 2d 740, 742-745 (Mo. 1942); Maxwell v. City of Springfield, 705 S.W. 2d 90, 92-93 (Mo. App. 1986). We adopt the ALJ's finding that the Kansas and Missouri SIFs had the same issues and interest at stake in this case because both funds are liable to cover an uninsured worker and that the two funds shared a privity of interest.

The SIF identifies no specific questions that the Kansas SIF's attorney asked or failed to ask at the December 15, 2010, preliminary hearing that prejudiced the Missouri SIF's interest. On direct examination at the preliminary hearing, the employee testified that most of the work he performed for employers was in the state of Kansas. Transcript, 565. Kansas SIF attorney, Ronald Wood, limited his cross-examination of employee relating to the location of his work for employers to verifying that the employee did "some jobs" in Missouri and had purchased asphalt from Missouri vendors with his own money. Transcript, 587-588. As the ALJ noted, the Kansas SIF's attorney "enquired about the situation concerning the employment, the work employee did, the wages paid, the injuries incurred and the medical care received." Award, p. 7; See also Transcript, 578-593. Our review of the prehearing transcript does not convince us that the Kansas SIF's attorney's questioning of the employee at the December 15, 2010, preliminary hearing prejudiced the interest of the Missouri SIF. We further note the Missouri SIF's stipulation at hearing that Missouri had jurisdiction to hear this matter. Transcript, 4.

We further find competent and substantial evidence in the record that supports the ALJ's findings regarding the essential facts of the employee's claim, separate and apart from the employee's Kansas preliminary hearing testimony. Both the employee and the SIF offered the deposition of James Bate, a co-worker of Kendall Halterman and eyewitness to his June 2, 2010, accident, into evidence. Claimant's Exhibit E, Transcript, 560; Second Injury Fund's Exhibit 5, Transcript, 802. The Missouri SIF's attorney was present at Mr. Bate's deposition and had a full opportunity for cross-examination regarding the location and circumstances of the employee's employment by the alleged employers, wages paid, and the June 2, 2010, accident. Mr. Bate's testimony essentially mirrored the testimony the employee gave at the Kansas preliminary hearing. Transcript, 663-664. The SIF's cross-examination of Mr. Bate on October 27, 2017, included no questions that appear designed to challenge Missouri's jurisdiction over the employee's claim.

The Missouri SIF was also present at the May 19, 2016, deposition of alleged employers Jeremy Huffman and Jason Sawyer and examined these witnesses regarding the main location of their work as of June 2, 2010. Transcript, 636, 640, 677, 680. We agree with the ALJ's finding that Mr. Huffman's deposition testimony, in particular, was "rife with inconsistencies and lack of memory." Award, p. 16.

Division records show that the employee filed a Missouri claim for compensation that included a claim against Missouri's SIF on August 2, 2010. Missouri's SIF had nearly five years from the date of the December 15, 2010, preliminary hearing (four years, nine months, and sixteen days, to be exact) to depose employee prior to his death on October 1, 2015. We do not credit its attorney's claim that the Missouri SIF was "never allowed an opportunity to cross-examine Kendall Halterman prior to his death given the fact that there were cases going on in a different state at this time that were being pursued and not really here." Transcript, 41. To allow the SIF to benefit from its own inaction would constitute a

Injury No.: 10-059071

Employee: Kendall Halterman, deceased

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manifest injustice to the administrative process and would violate the Law's stated public policy, which requires us to "weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts." § 287.800 RSMo.

Reimbursement of Employee's Past Medical Bills relating to the June 2, 2010, Accident

The SIF concedes in its brief that the ALJ incorrectly calculated the amount charged for employee's treatment at Liberty Hospital from June 30, 2010 to December 8, 2010, in that Medicaid paid no part of the Liberty Hospital bill.

The SIF further does not dispute the following breakdown of Liberty Hospital's charges during this time frame, set out in the claimant's brief:

The SIF argues that Kimberly Halterman is not entitled to an award for unpaid past medical bills relating to the employee's work injury because she is not qualified as employee's proper successor absent a judicial determination of heirship. As we have found, pursuant to the statutory authority granted by §§ 287.230 and 287.580, the ALJ properly substituted Ms. Halterman as successor to deceased employee Kendall Halterman's rights in this matter.

The SIF next argues that, assuming Ms. Halterman is the employee's appropriate successor, his unpaid medical bills do not qualify as compensation to which she is entitled pursuant to the plain language of § 287.230 and that an award in this case would open Ms. Halterman to a debt instead of compensation.

Section 287.140 requires an employer to provide "In addition to all other compensation paid to the employee under this section ... such medical, surgical, chiropractic, and hospital treatment ... as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury [emphasis added]." The clear language of §287.140 has the effect of classifying medical treatment as compensation and payment on account of the injury. Bryant v. Montgomery Ward, 416 S.W.2d 195, 199 (Mo. App. 1967).

Missouri courts have held that the Workers' Compensation Law is contractual in nature and becomes an integral part of the employee's contract of employment. Sommers v. Hartford Acci. & Indem. Co., 277 S.W.2d 645, 649 (Mo. App. 1955). Ms. Halterman, as the employee's successor, therefore steps into the shoes of the employee for purposes of

Injury No.: 10-059071

Employee: Kendall Halterman, deceased

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pursuing his right to reimbursement for medical care to cure and relieve from the effects of his injury.

We modify the ALJ's award of past medical expenses only with respect to Liberty Hospital's charges for the employee's treatment from June 20, 2010 to December 8, 2010. We find the employers and the SIF responsible for Liberty Hospital's charges during that period in the amount of $85,032.43.

We order the SIF to pay all past medical expenses awarded herein, less an attorney lien in the amount of 25% to Mr. Don Taylor, directly to the employee's health care providers named in the ALJ's award.

**Conclusion**

We modify the award of the administrative law judge as to the issue of past medical expenses.

We order the Second Injury Fund the to pay all medical expenses awarded herein directly to the health care providers named in the ALJ's award, less an attorney's lien of 25% to claimant's attorney Don Taylor.

The award and decision of Administrative Law Judge Emily S. Fowler, dated May 9, 2018, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

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

Given at Jefferson City, State of Missouri, this 4th day of January 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Kendall Halterman (Deceased) Injury No. 10-059071 (Kimberly Halterman substituted as Successor to Rights)

Dependents: N/A

Employers: Jason Sawyer and Jeremy Huffman

Insurers: None

Additional Party: State Treasurer as Custodian of the Second Injury Fund

Hearing Date: January 31, 2018

Checked by: ESF/drl

1. Are any benefits awarded herein?

Yes

1. Was the injury or occupational disease compensable under Chapter 287?

Yes

1. Was there an accident or incident of occupational disease under the Law?

Yes

1. Date of alleged accident or onset of occupational disease:

June 2, 2010

1. State location where accident occurred or occupational disease was contracted: Lexington, Lafayette County, Missouri
2. Was the above Employee in cmploy of above employer at time of alleged accident or occupational disease?

Yes

1. Did alleged employer receive proper notice?

Yes

1. Did injury or occupational disease arise out of and in the course of employment?

Yes

1. Was claim for compensation filed within time required by law?

Yes

1. Was employer insured by above insurer?

Uninsured

1. Describe work Employee was doing and how accident oceurred or occupational disease contracted: While in the course and scope of his employment, Employee was scraping and knocking asphalt out of the bed of a dump truck when he fell from the raised dump truck bed, striking the ground on his head and neck.
2. Did accident or occupational disease cause death?

No

Date of death: N/A

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kendall Halterman

Injury No: 10-059071

1. Part(s) of body injured by accident or occupational disease: Head, neck, back, body as a whole

1. Nature and extent of any permanent disability: Permanent total disability as to the employer

1. Compensation paid to date for temporary disability: None

1. Value necessary medical aid paid to date by employer/insurer? None

1. Value necessary medical aid not furnished by employer/insurer? 125,717.87

1. Employee's average weekly wages: 300.00

1. Compensation rate: $200.00/$200.00

1. Method wages compensation: Evidence

Findings

1. Amount of compensation payable: The employers Jason Sawyer and Jeremy Huffman shall pay to Employee permanent total disability from June 2, 2010 to October 1, 2015 totaling 277 and 2/7 weeks of disability at a rate of 200.00 per week for a sum of 55,457.14 as and for permanent total disability.

1. Amount of past medical bills: The employers Jason Sawyer and Jeremy Huffman shall pay to the Employee the sum of $48,288.50 as and for medical bills. Such amount shall be due and owing from the Second Injury Fund pursuant to Section 287.220.5.

This Court awards to Employee's attorney, Mr. Don Taylor, 25% of all benefits awarded herein.

WV-32-R1 (6-81)

Page 2

On January 31, 2018, the parties appeared for final hearing. The Division had jurisdiction to hear this case pursuant to §287.110. The Employee, Kendall Halterman (deceased) appeared by and through his successor Kimberly Halterman and by Attorney Mr. Don Taylor. The Second Injury Fund appeared by Assistant Attorney General Kim Fournier. The employers, Jason Sawyer and Jeremy Huffman, although having been duly notified, appeared not and is in default.

The parties stipulated that:

1. The date of the alleged injury by accident occurred on June 2, 2010.
2. The alleged Employer was uninsured at the time of the alleged injury date.
3. The Second Injury Fund admits that Missouri has proper jurisdiction to hear this matter.
4. The Employee notified the alleged Employer of the alleged injury as required by law.
5. The Employee's claim was filed within the time allowed by law.

The issues to be resolved in this proceeding are as follows:

1. Whether the Employee has properly substituted the deceased Employee's daughter as a proper party for receipt of compensation herein;
2. Whether the Employer was an employer operating subject to Missouri Workers' Compensation law on June 2, 2010;
3. Whether Kendall Halterman was an employee of the Employer;
4. Whether Kendall Halterman was working subject to the law in Lexington, Lafayette County, Missouri;

WC-32-R1 (6-81)

Page 3

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kendall Halterman

1. Whether Kendall Halterman sustained an injury by accident arising out of and in the course of his employment;
2. A determination of the Employee's average weekly wage as well as compensation rates;
3. Whether the Employer must reimburse the Employee for medical expenses totaling $125,717.87;
4. Whether Employee suffered any disability and, if so, the nature and extent of Employee's disability;
5. Whether the Second Injury Fund is liable to the Employee for any medical bills awarded to Employee.

**EXHIBITS**

The Employee offered the testimony of Kimberly Halterman, Employee's daughter, as well as the testimony of Anne Gall. In addition, the following exhibits were offered and admitted into evidence without objection:

A. Deposition of Dr. Rance McClain, Part 1

B. Deposition of Dr. Rance McClain, Part 2

D. Death Certificate of Kendall Halterman

F. Deposition of Jeremy Huffman

G. Deposition of James Bate

H. Deposition of Jason Sawyer

I. Affidavits of Custodian of Records

N. Employee/Attorney Contract

The following exhibits were offered into evidence under the objection of the Second Injury Fund. Such objections are ruled on by this Court within the body of this award:

C. Birth Certificate of Kimberly Dechell Halterman - objection overruled

E. Kansas Preliminary Hearing Transcript of 12/15/2010 - objection overruled

J. Notice of Successor - objection overruled

K. Motion to Allow Substitution of Plaintiff - objection overruled

L. Order Approving Substitution of Plaintiff - objection overruled

M. RTO Notice Letter of Preliminary Hearing - objection overruled

The Second Injury Fund offered no live testimony but offered the following exhibits, which were admitted into evidence without objection:

SIF-2 Deposition of Jason Sawyer, dated May 19, 2016

SIF-3 Deposition of Jeremy Huffman, dated May 19, 2016

SIF-4 Record in Regards to Jamey Bate, dated August 09, 2017

SIF-5 Deposition of James Bate, dated October 27, 2017

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kendall Halterman

Injury No: 10-059071

SIF-6 State of Missouri Certificate of Fact in Regards to American General Contracting, LLC

SIF-7 Medical Bill Affidavit from Dr. Sidney Cantrell

SIF-8 Medical Bill Affidavit from MAWD Pathology Group, PA

SIF-9 Medical Bill Affidavit from Higginsville Medical Clinic

SIF-10 Medical Bill Affidavit from The Medicine Shoppe

SIF-11 Medical Bill Affidavit from C&C Discount Pharmacy

SIF-12 Medical Bill Affidavit from Dr. Clifford Gall, Neurosurgery, PA

SIF-13 Medical Bill Affidavits from Liberty Hospital with Corresponding Medical Bills

The Second Injury Fund offered the following exhibit, which was objected to by Employee. Such objection is ruled on by this court within the body of this award:

SIF-1 Ray County Affidavit regarding determination of heirship - objection sustained

The Court will first review the objections by the Second Injury Fund to exhibits submitted by the Employee and make rulings herein. The first exhibit which the Second Injury Fund objected to was Employee's Exhibit C, the Birth Certificate of Kimberly Dechell Halterman. The Fund's objection was based upon relevancy of Exhibit C. Employee has submitted this exhibit to show that Ms. Halterman is "a person entitled" to benefits of a deceased employee pursuant to RSMo. 287.230.1 by showing she is an heir of Employee and, as such, would be eligible to receive any benefits which would have accrued to Employee herein. As such, the birth certificate is relevant and shall be admitted.

The next exhibit objected to by the Second Injury Fund is Employee's Exhibit E, which was the Kansas Preliminary Hearing Transcript of December 15, 2010. The Second Injury Fund objected to this exhibit stating that the Fund was not a party to the Kansas Preliminary Hearing and, therefore, was not able to cross-examine the Employee herein. The hearing was held in Kansas on December 15, 2010. Present was the Kansas Workers' Compensation Fund represented by attorney Mr. Ronald Wood. Employee was placed under oath and his testimony was therefore sworn before the Court. This hearing was held before a Kansas Administrative Law Judge. At the time of the hearing, Mr. Wood cross-examined Employee regarding numerous issues which are also present in the case at hand. He cross-examined Employee regarding his employment status, the work done, the wages received, the injuries sustained, and the medical bills incurred. In reviewing the case law, this Court has found cases which discuss the use of depositions in cases where a party was not present at the deposition.

The Missouri supreme court found in Bartlett v. Kansas City Public Service Co., 349 Mo. 13, 160 S.W.2d 740, 742-45 (Mo. 1942) that there are exceptions that would allow a deposition entered into evidence when one party was not in attendance at the deposition. "It is the general rule that a deposition taken in a prior case is inadmissible, Bartlett v. Kansas City Public Service Co., 349 Mo. 13, 160 S.W.2d 740, 742-45 (Mo. 1942), and that a deposition taken prior to joinder of a party to the case is inadmissible against that party. Alvin Bergsieker v. Schnuck Markets, Inc., 849 S.W.2d 156, 160 (Mo. App. 1993). The basis for exclusion of such testimony is that the parties not involved in the prior deposition had no real opportunity to cross-examine the witness. First National Bank of St. Petersburg v. Switzer, 277 S.W.2d 689, 691-92 (WIC-32-R1 (6-81)).

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kendall Halterman

Injury No: 10-059071

(Mo.App.1955). An exception to the general rule of inadmissibility exists when there is a clear identity of issues and of parties. *Bartlett*, 160 S.W.2d at 743-45. The issues in the two proceedings must be the same. *Maxwell v. City of Springfield*, 705 S.W.2d 90, 92-93 (Mo.App.1986). The parties need not be identical, but must be in privity with one another. *Id.* at 93-94. The courts have interpreted parties as being in privity with one another when they have an "identity of interest", or the same interest and motive. *Id.* Privity of parties has been found in situations such as a husband and wife suing separately for damages resulting from wife's injuries sustained in an automobile accident, and an employer and employee both being sued for damages resulting from the negligence of the employee. *See, e.g., Bartlett*, 160 S.W.2d at 745; *Maxwell*, 705 S.W.2d at 94.

In the case at hand, the Kansas Workers Compensation Fund and the Second Injury Fund had the same interest and motive herein. The issues litigated in a hearing before this Court are the same issues which were litigated in the Kansas court.

The Kansas Workers' Compensation Fund liability for covering uninsured employers as set out in the Kansas statutes is as follows:

44-532a. Liability of workers compensation fund for uninsured or insufficiently self-insured insolvent employers; cause of action against such employers. (a) If an employer has no insurance or has an insufficient self-insurance bond or letter of credit to secure the payment of compensation, as provided in subsection (b)(1) and (2) of K.S.A. 44-532, and amendments thereto, and such employer is financially unable to pay compensation to an injured worker as required by the workers compensation act, or such employer cannot be located and required to pay such compensation, the injured worker may apply to the director for an award of the compensation benefits, including medical compensation, to which such injured worker is entitled, to be paid from the workers compensation fund. Whenever a worker files an application under this section, the matter shall be assigned to an administrative law judge for hearing. If the administrative law judge is satisfied as to the existence of the conditions prescribed by this section, the administrative law judge may make an award, or modify an existing award, and prescribe the payments to be made from the workers compensation fund as provided in K.S.A. 44-569, and amendments thereto. The award shall be certified to the commissioner of insurance, and upon receipt thereof, the commissioner of insurance shall cause payment to be made to the worker in accordance therewith.

(b) The commissioner of insurance, acting as administrator of the workers compensation fund, shall have a cause of action against the employer for recovery of any amounts paid from the workers compensation fund pursuant to this section. Such action shall be filed in the district court of the county in which the accident occurred or where the contract of employment was entered into.

In Missouri, the Second Injury Fund is also available to cover expenses incurred by an employee if the employer is uninsured.

287.220.7. 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,

WC-32-9.1 (6-81)

Page 6

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kendall Halterman

Injury No: 10-059071

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.

In reviewing these statutes it appears both the Second Injury Fund and the Kansas Workers Compensation Fund have similar liabilities when an employee is injured in the employ of an uninsured employer. K.S.A. 44-532a (a) clearly states that if an employer is insolvent and uninsured, the State pays the employee's compensation benefits to the employee out of the Fund. *Olds-Carter v. Lakeshore Farms, Inc.*, 45 2d 390, (Kan.App.2d 2012). The Missouri Second Injury Fund is also liable for such benefits as medical bills.

Both entities are liable to cover medical expenses for an injured worker should the injured worker's employer not have the appropriate workers' compensation insurance to cover the injury. In the preliminary hearing the attorney for the Kansas Workers Compensation Fund, Mr. Wood enquired about the situation concerning the employment, the work Employee did, the wages paid, the injuries incurred and the medical care received. The medical bills and records were introduced. Mr. Wood cross-examined Employee on all the pertinent issues before the Court in that hearing. It appears that both the Kansas Workers Compensation Fund and the Missouri Second Injury Fund had the same issues and interests at stake. Therefore, it is clear that both parties had the same interests or motives or "privity of interest" as described by the Bartlett Court. Wherefore the transcript from the Kansas Preliminary Hearing from December 15, 2010 shall be admitted herein.

The Second Injury Fund also objected to Employee's Exhibit J, which is the Notice of Successor. The Fund's objection is that Ms. Halterman is not the appropriate person to be substituted because she has not been determined to be the sole heir-at-law. This objection is not proper as it is within the Court's discretion to determine whether she is the sole heir-at-law based upon the evidence presented. The exhibit is merely a copy of the notice to substitute her as such and not proof thereof. Exhibit J is admitted.

The Fund also objected to Exhibits K and L, which are the Motion to Substitute Plaintiff Ad Litem by his daughter Kimberly Halterman as successor to his right under the law in

This Court also takes note that there is deposition testimony by a co-employee, Mr. Bate, which has been submitted herein by both parties. This testimony, which will be discussed later, parrots almost all the testimony given by Employee in the Kansas Preliminary hearing.

WCV2-R1 (6-81)

Page 7

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kendall Halterman

Injury No: 10-059071

Lafayette County and the Lafayette County's Order determining such. The objection herein is based upon relevancy. The Court Order allowing substitution of Kimberly Halterman as Plaintiff Ad Litem in Lafayette County is relevant as it shows recognition by another Missouri Court that Kimberly Halterman is the proper party to pursue the interests of the deceased Employee. These exhibits therefore are relevant to the issues and shall be admitted. The Second Injury Fund's objections are overruled. Employee's Exhibits K and L are admitted.

The Fund also objected to Employee's Exhibit M, which is the RTO Notice Letter of Kansas Preliminary Hearing, based upon relevancy. This exhibit is offered for the purpose of showing that the alleged employers were duly notified of the pending Preliminary Hearing in the Kansas Workers Compensation case. The transcript of this case has also been offered and admitted by this Court. This Court, therefore, finds that the notice is relevant and overrules the Second Injury Funds objection and admits Employee's Exhibit M.

Having made a determination regarding the Second Injury Fund's objections herein, the Court will now proceed to make its findings of fact based upon the allowed exhibits and testimony.

According to Employee's testimony in the preliminary hearing held before the Kansas Division of Workers Compensation, Employee testified that he was in the employ of Mr. Jason Sawyer and Mr. Jeremy Huffman on June 2, 2010. He testified that the name of the business was American General Contracting. He had worked for them for approximately one year beginning in July of 2009 and he sustained an injury while working for them on June 2, 2010. He stated that he had not worked for anyone since that date. His job duties while working for Mr. Sawyer and Mr. Huffman included asphalt work, tree trimming, raking leaves, and cleaning gutters. He stated that he mainly did asphalt work and tree trimming work. On a typical day he would meet other workers at Mr. Sawyer's residence at 802 Pflumm, Lexington, Missouri. They would get the truck running and go get gas. They would then meet other workers in a parking lot in places like 95th and Nall. On that date they went to 95th and Nall and waited until a job was found. He explained that Mr. Sawyer and Mr. Huffman would go door to door looking for potential customers. When they found a job, they would call the gathered men to come do the job. He noted some days they would sit all day with no work and other days they would work all day. There was an average of five to six employees at any given time, not including Mr. Sawyer or Mr. Huffman. On the days that there was work he was paid $100 cash. He drove a vehicle that he understood as belonging to either Mr. Huffman or Mr. Sawyer. All tools of the trade, as well as customers, were provided by either Mr. Sawyer or Mr. Huffman. He was directed on how to do the work by these gentlemen. He was provided training to do the work that he did for them. Prior to this he had been in floor covering work all his life and did not know anything about asphalt work or tree trimming. He stated he would on average make between 400-500 a week. This included Saturday work as well. The gross average for the approximate 26-week period before he was injured was $300 a week. The tools of trade provided by the alleged employers included a four-door flatbed three-ton dump truck, a boom truck, a trailer, an asphalt roller, chain saws, a drag box, a Bobcat, and hand tools. He testified that on the day he was injured, they had not used all the asphalt out of the back of the truck that he was driving. He was attempting to scrape the unused asphalt out of the back of the dump truck while the others were spraying it down with diesel. The truck bed was tilted up with the top part being 10 to 12 feet high. He had a spade hoe and he was trying to scrape the cold product out of the back of the truck. He was on

WC-32-R1 (6-81)

Page 8

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kendall Halterman

Injury No: 10-059071

the driver's side of the truck, standing on the edge of the bed, holding on with one hand and scraping with the other. The Bobcat operator hit the side of the truck causing his feet to slip out from under him and tumbled over the side of the truck landing on his head and neck. He noted that he laid on the ground for five or ten minutes thinking someone would come help him, but when nobody did, he eventually got up. He went to his pickup truck and drove from Lexington to Richmond, Missouri. When he got there, he called a friend and that friend and a Mr. Mark Huffman made him get in the car and go to a hospital.

At Liberty Hospital he was seen by Dr. Gall who was his main doctor throughout his care. He went into the emergency room and then was hospitalized for three days in the ICU. He then spent another two days in hospital for a total of five days in the hospital. Dr. Gall put him in a neck brace and ultimately suggested surgery which occurred on September 30, 2010. He thought the surgery he was going to have would be a simple procedure but it turned out that he ended up staying in the hospital for about 3 weeks having been discharged October 19, 2010.

On cross-examination, the attorney for the Kansas Workers Compensation Fund, Mr. Wood, asked about how much money he made in 2009, for which he stated less than $4,000. He noted that he was paid cash in 2010 and does not have a record of all the money he was paid. He stated that if he worked he was paid $100 per day, that is, if he was paid at all. There was never a check, it was always in cash. He did not consider himself self-employed. He was not required to go every single day to work. There was never any Social Security paid on his behalf by the alleged employers. He used to have a good phone number for Jason Sawyer but it had been changed, and he did not have one for Mr. Huffman. He noted the other workers that worked with him included: Chris Williams, Josh Smith, and Nathan. He did not have their phone numbers. He was asked about some of the medical reports which stated the injury happened on the third as opposed to the second. He did not know why it was the third because it definitely happened on the second. There was an insurance company mentioned which Employee believed had something to do with Truman Hospital and that it was supposed to give some sort of help for his medical bills but had not paid anything. He had not applied for disability or state assistance except for Medicaid. Mr. Wood reviewed the injury and confirmed that Employee was in the back of the truck when he fell, standing on the side and that it was asphalt in the truck that he was trying to clean out. Employee noted that Mr. Sawyer and two neighbors were present when the injury occurred but he did not know why they did not help him. He has not talked to Mr. Sawyer since the accident and he has not seen him. The police were not called and he stated that the people who were around at the time of the injury simply disappeared that day. He confirmed there was no ambulance called and no police report was filed. There was no insurance on the truck and, in fact, the truck had no legal license plate. He also confirmed that he did not have health insurance.

Employee denied having had any alcohol prior to the accident and that the reason there was alcohol in his system was because he had a couple of beers after the accident before he went to the hospital due to his pain. It is also noted that the hospital records indicated that he was positive for marijuana and opiates but he stated he has not smoked marijuana in 15 years and has no idea why there were opiates in his system. He also denied having a prescription for Oxycodone prior to being admitted to the hospital. He states that when he first got to the emergency room, he was given some medication but he had no idea what it was. He denied talking to Dr. Gall about dependency issues. With regard to the mention of self-employment in

WC-32-R1 (6-81)

Page 9

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kendall Halterman

Injury No: 10-059071

the hospital records, Employee stated that he really did not remember the first two days in the hospital, just bits and pieces of it. He may have stated that he was self-employed but, if he did, it was because he was confused as he had been self-employed for many years prior to this time. He admitted he suffers from anxiety and would get his medications filled if Medicaid would pay for it. He feels he had maybe four beers prior to going to the hospital. He admits that some of the work he did was in Missouri. While they were waiting to be called for a job, they did not have asphalt on the truck. When they would call and say there was a job set up, they would then send him to get the asphalt. He would get the address of the job site and meet them there or follow them to the job. He would get the asphalt generally at one of two places, either Superior Asphalt at 95th and 71 Highway or Hot Shot Asphalt at 85th and Holmes. He noted they did not have accounts but he would be given cash before he left, to pay for the asphalt. He was usually given $400 to pay for the asphalt. He noted on the day of the injury he was not paid. He was supposed to be paid after the truck had been cleaned. He noted that there was no specific time when they would get off work, sometimes they finished work at dark and sometimes 3:00 PM, it just depended on "how bloody their knuckles were from beating on doors." Employee noted that the alleged employers had been on TV for theft by deceit for stealing from little old ladies. They were in the hall of shame. Employee admitted he had a DWI in 1985 but no other criminal occurrences.

On redirect by Mr. Taylor, Employee noted that the parties he worked with also included Chris Meierer and Nathan Meierer who were brothers. There was also a Jamie but he did not know his last name. He noted that the money they were paid was in envelopes and no one knew what the other person was paid. He requested that the Court find he earned an average weekly wage of $300.00.

In reviewing the testimony of Employee at the Kansas hearing, it appears his testimony was consistent throughout as well as consistent with the medical records presented. This Court deems Employee's testimony credible.

Employee also submitted the deposition of James Bate. Mr. Bate testified that he and Employee were employees of American General Contracting. He noted that the proprietors or owners were Jason Sawyer and Jeremy Huffman. This was a business that was run out of Lexington, Missouri. He also noted that there was a Nathan and Chris Meierer as well as other employees that worked alongside them. He was a laborer and Employee was a driver/laborer. He learned asphalt work from Mr. Huffman and Mr. Sawyer. The daily routine was that they came in at eight and started the trucks at Mr. Sawyer's property. They would then wait for Mr. Sawyer to come out. They would also take the trucks out to fill them up with gas. They would sometimes go to a truck wash in Oak Grove called the Blue Beacon. Exhibit 1 of the deposition was a receipt from the Blue Beacon. He stated they would at times go there to wash asphalt and diesel fuel off of the Bobcat. Mr. Bate stated that he was told where to go on each day by either Jason Sawyer or Jeremy Huffman. He noted that Jason Sawyer and Jeremy Huffman located customers for the jobs. The tools of the trade were provided by Jason Sawyer and Jeremy Huffman and these tools included dump trucks, trailers, chippers, bucket trucks, skid steerers, rollers, and drag boxes. He also noted that they would also provide supplies and materials. If equipment needed to be leased for a job, they would lease it. Mr. Sawyer and Mr. Huffman collected payments from customers and paid wages out of that. He noted he was paid between 100-150 a day. He noted that on June 2, 2010, both he and Employee were

WC-32-R1 (6-81)

Page 10

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kendall Halterman

Injury No: 10-059071

working for Mr. Sawyer and Mr. Huffman. As on a typical day, they reported to 95th and Mission Road or possibly someplace in Johnson County. He noted that the work was hit and miss and sometimes they would just sit all day. On that day they did not work an asphalt job but Mr. Sawyer finally got around to calling them to tell them to return to his house. They returned to Mr. Sawyer's house. There was asphalt stuck in the corners of the dump truck from previous jobs and Mr. Sawyer asked them to knock it out. This included himself and Employee. The dump truck had been taken down the road to a property owned by a Johnny Groves. He followed Employee in the skid steer. The bed of the truck was raised and Employee was on the skid steer and was lifted up to the top of the truck. He noted that Employee seemed normal and sober that day. He did not appear to be under the influence of any drugs and was working the same as he always did. It was Mr. Sawyer who suggested using the skid steer to take Employee up into the corner of the truck bed to get the asphalt out. Employee was swinging the spade hoe at the asphalt, he went to swing it and spun around, and that is when he fell injuring his neck and shoulder. He hollered for Mr. Sawyer who came down to him on his four-wheeler to see if Employee was okay. Mr. Bate suggested they call an ambulance, but for some reason no ambulance was called. He noted it was the scariest thing he has ever seen. For him it was like seeing a horror movie the way the Employee fell and landed. It was very traumatic. He has been trying to erase the memory ever since. Mr. Bate confirmed that he voluntarily came in earlier and gave a statement to Employee's attorney.

On cross-examination by the Second Injury Fund, Mr. Bate was trying to remember all the workers who were there that day. He noted that Nathan Meierer and Chris Meierer and Mark Huffman were people that were there that day. He confirmed that Jason Sawyer and Jeremy Huffman paid them approximately 100-150 a day in cash. He confirmed he was never given a check, always cash, and if you did not work that day, you would not get paid. There was no health insurance, vacation time, or sick leave. They were given their job assignments each day. They were told where to go, and were provided transportation. They were told that they were to be at the shop at 7:00 AM. There was no printed schedule and the hours varied depending on the jobs found that day. They were expected to show up Monday through Friday. You never got in trouble if you did not show up. There were never any work reviews. He noted that there was training but that the work was fairly simple. "You work with a drag box and a loader, a skid steer and you just dumped asphalt down and slid the drag box and drag it out. You would then make your driveway and then go around and tamp the sides until they were smooth and then you would get the roller and roll it out." He never signed a contract with Jason Sawyer or Jeremy Huffman and he did come and go as he pleased. He did not bring his own equipment, they provided everything that was needed. You could pick and choose the job you wanted but if you did not work, you did not get paid. Although the work was fairly self-explanatory, he felt that Mr. Sawyer and Mr. Huffman would supervise them. Mr. Sawyer and Mr. Huffman would come and check up on the workers and then go off and get more work. This was to make sure that they were doing it right. He was paid for the work he did that day. He quit working for them after this accident. He did not give a formal termination notice, he just stopped showing up. He stated he knew Jason and Jeremy for years and that that was why it was hard for him to be there at the deposition, but he felt it was the right thing to do. In reviewing the testimony of Mr. Bate, it appears that not only was his testimony consistent with Employee's testimony, but he was uncomfortable testifying against Mr. Sawyer and Mr. Huffman. He was friends with them and had known them for a long time but felt that he should come forward to tell what he knew. This lends credibility to his testimony and this Court finds his testimony to be credible.

W0-32-R1 (6-81)

Page 11

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kendall Halterman

Injury No: 10-059071

Employee also submitted the deposition of Jeremy Huffman. Mr. Huffman stated that he currently worked for a company called Show Me Tree L.L.C. He had recently been released from prison. He stated that he never owned a company called American General Contracting. He has never owned any companies or had an interest in any company. When asked if he had ever heard of a company name American General Contracting, he stated that "it was a group that everybody called American General Contracting. We'd meet up and go to work, but it wasn't actually American General Contracting, you know, it was more or less a bunch of guys from town, they would get together miscellaneously and work." He stated that this was not like a legitimate company, it was just like a bunch of people getting together to make an extra buck to pay the bills. He stated that mostly the work they did was tree trimming and seal coating. He explained that this was an application you do on driveways and parking lots. He said there was nobody who was the boss. The individuals would gather by word of mouth. He admitted he would go door to door to solicit business. There were no vehicles owned by the group. If there was a bigger job they would have to rent the machinery. They would meet at a gas station and sometimes at his house. He stated that he was not a supervisor and there were no formal policies, human resources, manuals, or procedures. There were no formal employment policies, no paperwork stating the dates and time you had work, no training provided. There were no tools provided, you had to bring your own equipment. You had to bring your own tools, such as chainsaws and rakes. He stated he first met Employee when Employee was working for his uncle Jerry Huffman. He was doing trees and driveways as far as he knew. He stated that pay was divided equally between the parties. If a job cost 1500 for tree service and there were five individuals, each would get 300 after material was taken out. He did admit that regarding the name of American General Contracting, he recalled "I remember everybody getting together and bull crapping and saying, well, we'll name that American General Contracting one of these days ..." He stated that if he sold a job, he would discuss with the group what needed to be done. He also stated that he remembered that if his brother sold a job, he probably did the same. He also stated that anybody who sold the work would have briefed the group as to what to do with regard to the job. He denied ever working with Chris or Nathan Meierer, Mark Huffman, Josh Smith, or William Scott. Throughout his deposition Mr. Huffman repeatedly stated that his memory was very foggy as he had been using drugs throughout this time period. Oftentimes his answers were vague and evasive. This Court finds that Mr. Huffman's testimony is less than credible herein.

Employee submitted the deposition of Jason Sawyer. Mr. Sawyer denied ever owning a company called American General Contracting. He stated that there were a number of men who would just join up and partner up to do side jobs. He does not specifically recall any jobs that Employee did. He admitted the side jobs he was talking about were asphalt services and tree services. He admitted that at times he had some type of supervisory duties over Employee such as job specifications. He explained that if a customer wanted something done a certain way he would brief everybody to make sure it was done that way. People would be notified of the work by a call or text. He noted that if someone did not show up, they would not get kicked out of the group. There was no sick leave, paid vacation, specific set schedules, work reviews. There was no formal contract written between the parties. He does not recall any tools that were brought to the group other than chainsaws. He noted that if a job needed a loader, he would lease it. He noted that Employee did have either a class A or B license which allowed him to drive the 3 ton dump truck that was used. The company they used to lease equipment is no longer in business. He does not remember the name of the company. He provided no training to Employee. He

WC-32-R1 (6-81)

Page 12

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kendall Halterman

Injury No: 10-059071

noted that a homeowner would pay for the work done but that would be paid to the job coordinator and then the coordinator would pay the group individually. He does not recall if he ever paid Employee while he was a coordinator for a job. He does not recall if anyone left the group or how long the group lasted. He does not recall whether Employee had a class B license and he never did any background checks on Employee. On the day of the accident, June 2, 2010, he recalls Employee was there and that he had parked his car across the street and walked down with a can of beer in his hand. Mr. Sawyer stated that he was the one in the back of the dump truck, cleaning it, when Employee got on the loader and fell. He noted that after Employee fell he lay there for a minute, got up and then went home. He admitted that they were cleaning stuck asphalt material out of the back of a truck. He does not know who the truck was registered to but it was not registered to him. Cleaning asphalt out of the back of the truck was not something they normally did with this group. He stated there were no rules about people drinking while being around loaders. He stated Employee always smelled of alcohol and that he was always drinking. He said Employee never requested medical treatment or payment of medical expenses.

On cross-examination, Mr. Sawyer explained that he was in the truck and the Employee was on a loader and that James Bate was driving the loader. He states that Employee was being lifted up, but before he even got into the truck, he fell off the loader and landed on his head. He admitted that Employee's job was to drive the dump truck. When questioned about whether or not he hired an attorney to represent Employee for a citation while driving the dump truck, he claimed he did not remember. He did not remember whether the truck they were cleaning on the day of the injury was rented and he does not recall how it got into their possession that day. He did not know who the owner was. He did not recall who John Harris was or that he was the owner of the truck according to the Missouri registration of the vehicle. He does admit that the truck was made available to him on an ongoing basis. He stated he was familiar with the Blue Beacon. He denied having any business relationship with the Blue Beacon or any type of account with them. He does not recall any citations that Employee may have been given while driving the dump truck. When asked about why Mr. Huffman, Mr. Bate, and Employee were present on June 2, 2010, he stated that they had just shown up for no apparent reason. He guessed that Employee was simply joyriding that day and showed up. He did not recall whether Chris or Nathan Meier were part of the group that worked that day. He denied knowing Mark Huffman. He does not recall how the dump truck made it to the location on June 2, 2010, where the injury occurred. He also does not know how the loader got to the property on that date either. He admitted that jobs were found because they were given to either himself or Jeremy Huffman. He stated that generally there were 4 to 5 people who would do the asphalt work. This included himself, Jeremy Huffman, Mr. Bate, the two Mr. Meierers, and Employee. Throughout Mr. Sawyer's testimony, he was vague and quite elusive on a number of questions. His memory was quite faulty with regard to any specifics and his answers were constantly evasive. This Court finds that Mr. Sawyer's testimony herein was not credible.

Employee also submitted the deposition testimony of Dr. Rance McClain. Dr. McClain's testimony centered on review of the medical records and medical bills incurred by Employee. Dr. McClain determined that the injuries Employee suffered consisted of a cervical spine fracture was spondylolisthesis and distal neurologic symptoms, closed head trauma, back and shoulder pain which were all consistent with the mechanism of injury. He noted that the care provided during the acute injury time as well as follow-up care were within reason and were all necessary for the injuries of that nature. He felt that the charges that were in the medical records and the

WC-32-81 (6-81)

Page 13

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kendall Halterman

Injury No: 10-059071

spreadsheet of medical expenses provided seemed reasonable in light of the nature and extent of the claimed injuries. He found they were consistent with the general standards of the Kansas City area.

Employee also submitted the medical records of Dr. Gall. Dr. Gall treated Employee throughout his care. He noted that Employee suffered a cervical fracture at the C-6 level. This was a fairly minimally displaced fracture. He determined to keep the Employee in a collar for three months. Throughout those three months after the injury, Employee continued to have problems. In September of 2010, Dr. Gall performed a cervical fusion at the C6/7 level. The Employee was released from the hospital in a halo vest October 19, 2010. He was to avoid strenuous or rough activities. By October 24 he was out of his halo and they put him in a Philadelphia collar. By October 27 he was again discharged home wearing a collar. In 2011 Dr. Gall noted that there is no more surgery that could help Employee. On June 25, 2012, there is a note that Employee injured himself when he apparently tripped over his own dog and was now complaining of weakness and numbness in his arms and pain in his legs. Dr. Gall could find no explanation for Employee's symptoms. An MRI was performed on June 26, 2012, where there was no severe cervical stenosis or disc herniation found. There was no spinal injury that could be identified, either.

Of note in Dr. Gall's medical records, there is a Physician's Residual Functional Capacity, Form 9. This was dated April 4, 2011, for a time period beginning June 3 of 2010. In this report, Dr. Gall determined that Employee could lift a maximum weight of less than 10 pounds on a frequent and one-time basis. His standing, sitting, and walking were less than 1 hour at a time. He felt that Employee would need to recline during an 8-hour workday at least 4 hours or more a day. He could not use his hands repetitively for fine manipulation or repetitive motion, push or pull arm controls repeatedly, or leg and foot controls repeatedly. He could not perform jobs that would require bilateral manual dexterity. He felt that Employee would never be able to stoop, crouch, crawl, climb, reach, or maintain balance. He felt that Employee would have a severe limitation against unprotected heights and moving machinery. He also believed Employee's complaints of pain and that there was objective evidence demonstrating a condition which could reasonably be expected to give rise to this degree of pain. He felt that Employee's ability to perform activities as noted would be restricted or reduced by the pain and there is objective evidence demonstrating a condition which could reasonably be expected to give rise to that degree of pain. He felt the degree of fatigue Employee suffered would be frequently debilitating. Dr. Gall felt that Employee had both depression and irritability. He felt that Employee's ability to deal with stress in a typically low stress job, such as getting to work on time regularly, having work performance supervised, remaining in the workplace for a full day, and dealing with coworkers and supervisors appropriately, would be poor to none. He felt that Employee's impairments would cause him to be absent from work more than three times a month. He did not feel that Employee had a substance abuse diagnosis. He noted that Employee had been functioning at the level which was described in this form, beginning June 3, 2010 and that the condition would continue at least 12 months. The clinical laboratory findings included that the patient had a cervical subluxation.

The Second Injury Fund submitted an affidavit signed by the Clerk of the Ray County Probate Court regarding determination of heirship. This was signed by a Kim Hook and stated: "In connection with petitions for determination of heirs, the Ray County Probate Court follows

WC-32-R1 (6-81)

Page 14

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kendall Halterman

Injury No: 10-059071

the procedures and requirements of RSMo section 473.663 and other applicable law." Employee objected to this exhibit on relevancy. This document was submitted apparently to bolster the Second Injury Fund's argument that Employee did not follow proper procedure to make a determination of heir in this case. This Court hereby sustains the objection as this Court does not find that a statement by a clerk of the Probate Court of Ray County has any bearing on the proceeding before this Court.

The Second Injury Fund submitted the deposition of Jason Sawyer and Jeremy Huffman, which has previously been discussed. The Second Injury Fund also submitted a state of Missouri Certificate of Fact that shows that American General Contracting LLC was registered as a fictitious name from February 6, 2007 through February 28, 2012, but that neither Jason Sawyer nor Jeremy Huffman were associated with that in any way. The Fund also submitted affidavits with regard to medical bills which were allegedly written off by MAWD Pathology Group, Higginsville Medical Clinic, the Medicine Shoppe, as well as C & C Discount Pharmacy. There was also an affidavit by Anne Gall, apparently made with protest, stating that the medical bills in the amount of $11,541.00 were accrued for the treatment of Kendall Halterman. This related to treatment from June 3, 2010 to May 2, 2013. The affidavit stated they were aware of Employee's death on October 1, 2015 and, although it was typical procedure to write off medical bills of deceased individuals with no estate, they had kept the bills active due to the potential for financial reimbursement as explained by Employee's attorney. Also, as a final exhibit, the Second Injury Fund submitted its objection to Employee's claim as notice of successor.

The first issue which this Court must address is whether the Employee has properly substituted the deceased Employee's daughter as a proper party for receipt of compensation herein. Section 287.230, states:

1. The death of the injured employee shall not affect the liability of the employer to furnish compensation as in this chapter provided, so far as the liability has accrued and become payable at the time of death, and any accrued and unpaid compensation due the employee shall be paid to his dependents without administration, or if there are no dependents, to his personal representative or other persons entitled thereto, but the death shall be deemed to be the termination of the disability.

1. Where an employee is entitled to compensation under this chapter, exclusive of compensation as provided for in section 287.200, for an injury received and death ensues for any cause not resulting from the injury for which the employee was entitled to compensation, payments of the unpaid unaccrued compensation under section 287.190 and no other compensation for the injury shall be paid to the surviving dependents at the time of death."

The Second Injury Fund has objected to the substitution of Employee's daughter by stating that there should have been an estate established or personal representative appointed herein. In their argument they enumerated the procedures under section 473.663 in determining heirship. They state that the proper procedures for determining such heirship were not followed in relation to this matter in that Employee failed to produce any evidence of a filed petition.

WC-32-R1 (6-81)

Page 15

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kendall Halterman

Injury No: 10-059071

hearing publication or certification as to the heir-at-law to the Employee. This Court could find no case law which addresses this issue specifically. However, in looking at the statute under workers compensation section 287.230, it is apparent that at the death of the Employee any accrued and unpaid compensation due the Employee shall be paid to his dependents without administration. If there are no dependents, to his personal representative or other persons entitled thereto. Employee's daughter testified she was Employee's daughter and admitted as evidence her birth certificate which clearly shows that she was born Kimberly Dechell Halterman and her father was Kendall R. Halterman. There is no other evidence submitted which would contradict that Kimberly Halterman is not an actual born daughter of the Employee. She also testified to his death and submitted his death certificate showing his death on October 1, 2015. She also stated there were no other siblings or wife living. Therefore, it is apparent to this Court that she is the sole living heir of the Employee. This Court interprets the statute which states "other persons entitled thereto" to include the heirs of the Employee regardless of whether they had been appointed personal representative. The statute specifically delineates "other persons entitled thereto" leaving this Court with the responsibility of determining who those persons may be. To further bolster her statement and evidence that she is the sole heir, she did show that another court, Lafayette County, has also determined that she is an appropriate party to substitute for Employee during the pendency of litigation. This Court therefore finds that Kimberly Halterman is a proper party to act as successor to the rights of Employee in this matter pursuant to section 287.230 and hereby grants Employee's motion to substitute Kimberly Halterman for the deceased claimant here.

The next issue to be determined is whether the employer was an employer operating subject to Missouri Workers Compensation law on June 2, 2010. The definition of employer is found in section 287.030. Section 1 (1) states: "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 Corp., using the service of another for pay." In looking at the evidence it appears that whether or not American General Contracting was an actual company named by Mr. Sawyer and Mr. Huffman, these gentlemen were using the services of other parties for pay. According to their testimony they would have us believe they were just a group of guys getting together and finding odd jobs. Mr. Huffman's deposition is rife with inconsistencies and lack of memory. He did admit, however, that the parties at one point had actually considered naming the group American General Contracting and that that name was possibly given to customers as they went around trying to get business.

Pursuant to that statute in subsection 1.(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 question here then becomes whether this company is one which requires five or more employees to be considered an employer under the statute or, is the alleged employer, in doing asphalt work, deemed an employer under the construction industry exception. Although there is very little case law regarding whether asphalt work is considered construction work, this Court has found a Labor and Industrial Relations Commission decision from March of 2000, Michael Ross v. W. Scott Floyd D/B/A S&K Hauling 1999 WL 1479750 wherein it states; "we found no case law discussing whether asphalt paving falls under the category of erecting,

WC-32-R1 (6-81)

Page 16

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kendall Halterman

Injury No: 10-059071

demolishing, altering, or repairing improvements for purposes of section 287.030.1(3).

We believe that the asphalt paving performed by S & K Hauling constituted erecting improvements and placed S & K Hauling in the category of a construction industry employer under section 287.030.1(3). This Court too finds that the asphalt work that Mr. Sawyer and Mr. Huffman were doing would place their business within the construction exemption therefor needing only one employee to be required to carry insurance. This Court, therefore, finds that business known as American General Contracting was an employer subject to the provisions of the Missouri Workers Compensation act.

Even if the asphalt work as performed herein would not be qualified as construction work, it is quite apparent that there were a number of other parties working for Mr. Huffman and Mr. Sawyer in their business. Mr. Bate testified there were a number of people who were working together as employees of American General Contracting. This included Chris Meier, Nathan Meier, Kendall Halterman, a Mr. Williams, Scott, as well as Mr. Bate himself. He also mentioned an Employee named Josh and that there were a number of other people that had worked with the group over time. This totals 7 employees. He also stated that there were at least five employees at any given time working under the company name of American General Contracting and for Mr. Sawyer and Mr. Huffman.

After reviewing the evidence herein, the testimony of Employee, Mr. Bate, Mr. Huffman, and Mr. Sawyer, it is apparent to this Court that regardless of what they called themselves, Mr. Huffman and Mr. Sawyer were working in the business of asphalt paving as well as tree service. Whether they called themselves American General Contracting, or otherwise, it is clear that this was a business run by these two gentlemen. Wherefore this Court finds that Mr. Sawyer and Mr. Huffman doing business as American General Contracting or any other entity were in fact an employer which was operating subject to Missouri Workers' Compensation law on June 10, 2010. It is further clear from the testimony of Mr. Huffman and Mr. Sawyer that there was no insurance in place as required by law at the time that Employee was injured.

The next issue to be determined herein is whether Kendall Halterman was an employee of Mr. Sawyer and Mr. Huffman doing business as American General Contracting.

"Missouri's workers' compensation law defines an employee as a person in the service of any employer under any contract of hire, express or implied, oral or written. § 287.020.1. A claimant establishes an employer-employee relationship by showing that he worked in the service of the alleged employer and the employer controlled the services. These factors include: (1) the extent of control, (2) the actual exercise of control, (3) the duration of the employment, (4) the right to discharge, (5) the method of payment, (6) the degree to which the alleged employer furnished equipment, (7) the extent to which the work is the regular business of the alleged employer, and (8) the employment contract. Each factor is relevant to the issue, but no one factor is dispositive. DiMaggio v. Johnson Audio/D&M Sound, 19 S.W. 3d 185 (Mo. App. W.D. 2000). "The pivotal question in determining the existence of an employer-employee relationship is whether the employer had the right to control the means and manner of the service, as distinguished from controlling the ultimate results of the service." Chouteau v. Netco. Const., 132S.W. 3d 328, 332 (Mo. App. W.D. 2004)

W0-32-R1 (6-81)

Page 17

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kendall Halterman

Injury No: 10-059071

Based on Employee's and Mr. Bate's testimony it is clear that Employee's job was to drive the pickup truck which was the dump truck that carried the asphalt to the different jobsites. Employee did not own this truck but drove it at the behest of Mr. Sawyer and Mr. Huffman. The evidence showed that Mr. Huffman and Mr. Sawyer would go around to get customers. They told Mr. Bate and the other men who were working with them where to go and when to go there. They provided tools such as the dump truck, trailers, chippers, bucket trucks, skid steerers, rollers, and drag boxes and they would lease them if necessary. They provided all materials including the asphalt. They collected the money from the customers and they paid the workers individually. It is further noted that Mr. Sawyer and Mr. Huffman would supervise the work by coming by periodically, to check on the progress. Employee's job was to go and obtain the asphalt from the different companies that they bought asphalt from and bring it to the job site. He was paid by Mr. Sawyer and was told where to go and when to go to the job sites. His specific job duty was driving the dump truck as he was the only person of all those working with the Employer who had the proper license to operate the dump truck. He also did manual labor regarding the asphalt work as exemplified by the fact he was cleaning asphalt out of the bed of the dump truck when he was injured. This Court finds that Employee was an employee working for the employer herein.

The next issue to be determined is whether the Employee was working for the employer subject to the law in Lexington, Lafayette County, Missouri on June 2, 2010. This Court has determined that Jason Sawyer and Jeremy Huffman, doing business as American General Contracting was an employer under the law and that Employee was its employee. On June 2, 2010, Employee along with Mr. Bate, Mr. Sawyer, and Mr. Huffman were at Mr. Sawyer's property in Lexington, Missouri. Mr. Bate and Employee were asked by Mr. Sawyer to clean out the back of the dump truck. This is the same truck that had been used exclusively to haul asphalt to the various job sites. At that time Employee climbed up onto the truck and started knocking the excess asphalt out of the dump bed. It was at that time that Employee was injured. Both Employee and Mr. Bate testified that Employee's job duties included driving the dump truck as well as other work that the employer requested of them. Mr. Sawyer had requested that Employee clean out the back of the dump truck which is what they were doing when Employee was injured. Wherefore, this Court finds that Employee, being directed by Mr. Sawyer to do specific job duties related to cleaning of the dump truck, was in fact working subject to the law in Lexington, Lafayette County, Missouri on June 2, 2010.

The next issue to be determined is whether the Employee sustained an injury by accident arising out of and the course of his employment. Employee was cleaning out the back of the dump truck at the request of Mr. Sawyer on June 2, 2010. At that time he slipped and fell about 10 to 12 feet landing on his head and shoulder on the ground. He had immediate pain and was stunned when he fell. He subsequently obtained medical care for his injuries. Based upon the testimony of Mr. Bate and Employee, this Court finds Employee suffered an injury by way of accident arising out of and in the course of his employment on June 2, 2010.

The next issue to be determined by this Court is what the Employee's average weekly wage was at the time of his injury. Mr. Bate and Employee both testified that they were paid cash for the work they did. In his testimony before the Kansas Workers Compensation judge, Employee stated that he made about $400 a week. This correlates with Mr. Bate's testimony as well. However Employee testified at the Kansas preliminary hearing that for the 26 weeks prior

WC-32-R1 (6-81)

Page 18

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kendall Halterman

Injury No: 10-059071

to the accident he averaged $300.00 per week. Further he requested that court to determine his average weekly wage to be $300.00 per week. This Court finds that Employee in fact maintained an average weekly wage of 300.00 a week and therefore had an average compensation rate of 200.00 per week.

The next issue to be determined herein is whether the employer must reimburse Employee for medical expenses of $125,717.87. It is clear from the medical records that Employee suffered an injury by accident on June 2, 2010, when he fell from the truck he was cleaning out and landed on his head on the ground. He received medical care at Liberty Hospital over a period of time from Dr. Gall. Dr. Gall's records show that he had consistent treatment and consistent complaints of injury which ultimately required surgery for his injury. Dr. Gall noted in his medical records that Employee's injury of a cervical vertebrae fracture was consistent with Employee's description of his accident. Employee's injury ultimately required stabilization through a fusion of his cervical vertebrae. The medical records and adjacent bills were reviewed by Dr. Lance McClain. Dr. McClain found that the medical care provided to Employee was usual and necessary to cure or relieve the injuries from which Employee suffered. He also reviewed the medical bills and testified they were fair and reasonable charges for the medical care given to Employee. The Court notes that on June 25, 2012, approximately two years after the injury on June 2, 2010, Employee tripped and fell over his dog which caused additional medical problems. He had an immediate increase of symptoms of pain as well as numbness and tingling in his extremities. After returning to Dr. Gall, it was determined that Employee's fusion was stable. Dr. Gall could not find any objective reasons why Employee had increased or new symptoms. Up to this date he had been fairly stable with regard to the physical problems related to his injury. He had pain in his neck but that had stabilized and had been that way for quite some time. When Employee tripped over his dog he encountered a new and intervening accident which caused a change in his symptoms. The Court finds that this is an intervening accident which had he not had, his medical condition would most likely have remained stable. An intervening accident which causes additional injury should not be the responsibility of the employer. Wherefore, this Court finds that the medical care and medical bills incurred by the Employee up to the point of Employee's new accident of tripping over his dog on June 25, 2012, were reasonable to cure and relieve the injury from which Employee suffered on June 2, 2010, while in the employ of the employer. However, the medical bills incurred thereafter should not be the responsibility of the employer herein.

There are, however, a number of issues with these medical bills. The first issue is that it appears that a number of these bills may have been written off by the medical provider as evidenced by affidavits filed by the Second Injury Fund. The MAWD Pathology Group shows that there is no money due and owing as the $64.00 they charged had been written off by the institution. The affidavit further shows that the institution has not sent bills for collection as an attempt to collect any amounts. Unfortunately, this affidavit does not seem to correspond with the documentation of billing in evidence. There is a similar affidavit from Higginsville Medical Clinic stating that 7,764.00 has accrued for Employee and that 802.00 had been written off and was no longer due and owing. This affidavit shows that it was for treatment between March 5, 2013, through December 12, 2014, which is after the date of the intervening accident. The Medicine Shoppe also filed an affidavit stating that $6,219.48 had accrued for the Employee again from March 5, 2013, through September 14, 2015, and that there was no money due and owing. This is also for a time period after the date of the intervening accident. There is an

WC-32-R1 (6-81)

Page 19

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kendall Halterman

Injury No: 10-059071

affidavit from C & C Discount Pharmacy showing an amount of $762.00 had accrued for Employee but that zero had been written off and that zero is owed. This particular affidavit is confusing as there is no indication if any of the bills were written off as the notation for bills written off is zero. Finally, there is an affidavit from Dr. Gall showing that $11,541.00 had accrued for Employee and that these were related to his injury in June of 2010. However, they had not written any of it off, although it is their normal practice to write off debts for people who have died. They note they were told by Employee's attorney that there may be potential for financial reimbursement and, therefore, this amount was not written off.

Another issue with regard to this matter is the fact that Medicaid paid a number of the bills. With regard to the bills paid by Medicaid, the courts have found that an "Employee whose employer was uninsured for workers compensation was entitled to Second Injury Fund reimbursement for only that portion of his medical expenses that his health care providers accepted from Medicaid as a full settlement payment of the amounts admitted, not the total of his medical costs." *Mann v Varney Construction, 23 S.W. 3d 231 (2000)*. Therefore, regarding those bills paid by Medicaid, only the amount paid by Medicaid shall be awarded to Employee from employer. After reviewing all the bills and medical records presented herein, this Court has made a determination as to what is due and owing by the employer to the Employee. Below is a list of the bills this Court has reviewed and what amounts are owed by the employer to the Employee.

1. Liberty Hospital allegedly charged 84,476.43, Medicaid paid 27,199.25.
2. Dr. Gall charged 11,093.00, of that 857.00 accrued after the June 25, 2012 intervening accident leaving a balance of 10,236.00.
3. Professional Anesthetic, 3,259.00 charged and still owing.
4. MAWD Pathology, 682.40 charged with nothing written off and still owing.
5. Alliance Radiology, 1,817.00 charged and still owing.
6. The Medicine Shoppe, 11,382.19 charged with only 3,864.43 accrued before June 25, 2012.
7. C&C Pharmacy 762.00 charged and still owing.
8. Higginsville Medical Clinic charged 5,307.00 all accrued after June 25, 2012, the date of the intervening accident, so nothing is owed.
9. Ray County Family Practice has bills and medical records that are difficult to decipher. Although the treatment is for neck pain as well as anxiety related to the June 2010 injury, the only dates that this Court can see billed that correlate to dates of treatment shown in the medical records were: August 22, October 6, November 22 of 2011 and February 2, May 6, and June 6 of 2012. These dates show that the provider received 2.00 from the Employee and 76.07 each from Medicaid, making a total of $468.42. Other dates are undeterminable or after the June 2012 intervening injury.

WV-32-R1 (6-81)

Page 20

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kendall Halterman

Injury No: 10-059071

Wherefore the total amount of bills owed by the employer to the Employee are $48,288.50. This Court therefor orders employers James Sawyer and Jeremy Huffman to pay to the Employee the sum of $48,288.50 as and for medical expenses incurred for his injury on June 2, 2010.

The next issue to be resolved herein is whether the Employee suffered any disability and, if so, the nature extent of such disability. It is clear that Employee suffered a serious injury when he fell from the truck bed onto his head causing a fracture of his cervical vertebrae. Although there is not a formal rating report found in the medical records, nor a vocational report, there is a determination of residual functional capacity, which was shown in the Residual Functional Capacity Report as filled out by Employee's treating physician, Dr. Gall, on April 4, 2011. In reviewing this report, it is clear that Dr. Gall felt that Employee was severely disabled by this injury. After reviewing the report from Dr. Gall which was written prior to the intervening accident, it is clear that Employee was permanently totally disabled due to the accident of June 2, 2010. This Court finds that Employee would be unable to obtain gainful employment based upon these restrictions and physical problems as pointed out by his treating physician. Wherefore, this Court finds that Employee was permanently totally disabled from the date of injury, June 2, 2010, to the date of his death October 1, 2015, due solely from his accident of June 2, 2010. This equates to 277 2/7 weeks at a rate of 200.00 per week for a total of 55,457.14 owed by the Employer to the Employee. This Court hereby orders the employers, Jason Sawyer and Jeremy Huffman to pay to Employee the sum of $55,457.14 as and for permanent total disability from June 2, 2010, to the date of Employee's death October 1, 2015.

The last issue to be determined is whether the Second Injury Fund is liable to the Employee for any medical bills awarded to Employee. Section 2870.220.5 requires the Second Injury Fund 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. The medical records and bills were reviewed by Dr. McClain who determined they were fair and reasonable to cure or relieve the Employee's injuries. Further, the evidence shows that Mr. Sawyer and Mr. Huffman were not insured under workers compensation although they were required to be so insured under the law. This Court, having determined that medical bills incurred by Employee in the sum of $48,288.50 were owed to Employee by the employer who was uninsured as required by law, and having ordered the employer herein to pay same determines that the Second Injury Fund is therefore liable to Employee for the sum of $48,288.50 pursuant to section 287.022.5 RSMo.

W0-32-81 (6-81)

Page 21

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kendall Halterman

Injury No: 10-059071

Finally, this Court awards to Employee's attorney, Mr. Don Taylor, 25% of all benefits awarded herein.

I certify that on May 4, 2018 I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By ____________________________


Made by: ____________________________

Emily S. Fowler

Administrative Law Judge

Division of Workers' Compensation

WC-32-R1 (6-81)

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