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:
- 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.
- 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.
- 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