A central issue in this case is whether Claimant Lopez was a leased employee of AMS Staff Leasing on July 31, 2009, or whether Taylor Roofing as his statutory employer is liable for workers' compensation benefits.
The evidence of record demonstrates a business relationship existed between Taylor Roofing in Joplin, Missouri and AMS Staff Leasing on July 31, 2009, the date of injury. The Staff Leasing Agreement, signed by the parties on March 16, 2009, helped define that business relationship. Ms. Hauger identified the Staff Leasing Agreement, which was marked and admitted as AMS Exhibit E. Under the terms of the Staff Leasing Agreement, Taylor Roofing could lease employees through AMS Staff Leasing. Taylor Roofing continued to direct day-to-day employment activities of its leased employees. AMS Staff Leasing performed the administrative role of providing payroll, taxes, and workers' compensation benefits for its leased employees. Ms. Hauger testified that pursuant to the terms of the Staff Leasing Agreement, Taylor Roofing was required to take steps in order to make their workers leased employers of AMS Staff Leasing and eligible for workers' compensation coverage under the AMS workers' compensation policy with Dallas National/Freestone at the time.
Under Section 4B of the Staff Leasing Agreement, Taylor Roofing was required to take action to make their workers leased employees of AMS Staff Leasing. Pursuant to Section 4B, an Application for Employment had to be on file with AMS Staff Leasing for each individual to be considered an AMS leased employee. Exhibit E, P.1. Then, Section 4A stated Taylor Roofing was to submit payroll to AMS Staff Leasing for processing for each leased employee (Exhibit E, P.1). If both those steps had been taken, the injured employee pursuant to the Staff Leasing Agreement would be considered under workers' compensation the employee of AMS Staff Leasing and eligible for workers' compensation coverage under the AMS workers' compensation policy with Dallas National/Freestone at the time. Conversely, the Staff Leasing Agreement provided that unless Taylor Roofing satisfied both Sections 4A and 4B, the worker was not considered an AMS Staffing leased employee and not eligible for workers' compensation coverage under the AMS workers' compensation policy with Dallas National/Freestone. Exhibit E, P.1.
Ms. Hauger testified Taylor Roofing never took any steps required under the Staff Leasing Agreement to make the Claimant a leased employee of AMS Staff Leasing. Taylor Roofing never submitted an Application for Employment to AMS Staff Leasing for the Claimant. AMS Exhibit F contained many Applications for Employment submitted by Taylor Roofing but none was submitted to AMS for Claimant.
17
Issued by DIVISION OF WORKERS' COMPENSATION
Employee: Claudio Lopez
Injury No. 09-111744
Ms. Hauger testified AMS Staff Leasing never provided payroll, paid taxes, or was engaged in any financial transaction involving the Claimant at any time. AMS Exhibit G contained a listing of all AMS financial transactions involving Taylor Roofing workers in 2009. Exhibit G establishes AMS was engaged in no financial transactions involving the Claimant or Mr. Frias.
Ms. Hauger testified AMS Staff Leasing never directed Claimant's activities at any time in 2009. Under the terms of the Staff Leasing Agreement, Claimant was not an employee of AMS Staff Leasing on July 31, 2009. In fact, Taylor Roofing has stipulated that they are the statutory employer of Claimant.
Claimant's testimony fails to support the argument he was a leased employee of AMS Staff Leasing on July 31, 2009. Claimant admitted at Hearing he was not familiar with AMS Staff Leasing. He did not believe he had ever been hired by AMS. He never completed or had knowledge of an AMS Staff Leasing Application for Employment. He had no contact with AMS prior to the date of the injury. He never received either a W2 or a paycheck issued by AMS. To the contrary, Claimant testified in 2009 he was always paid in cash by Alberto Frias. Claimant testified in his deposition that Taylor Roofing paid cash to Alberto, who then paid him in cash (Exhibit H, P.29).
Mr. Scott Taylor, the owner of Taylor Roofing was present at the Hearing but failed to provide testimony. Mr. Taylor failed to provide evidence that Taylor Roofing submitted an Application for Employment to AMS for Claimant or to rebut Claimant's testimony that Alberto paid him cash that was received from Taylor Roofing for work performed on their projects. (Exhibit H, P.29) As such, the evidence of record is clear Taylor Roofing failed to take any necessary steps to make Claimant a leased employee of AMS Staff Leasing and eligible for coverage under the AMS workers' compensation policy with Dallas National/Freestone at the time.
Confronted with the evidence that it made no effort to make the Claimant a leased employee of AMS Staff Leasing in 2009, Taylor Roofing argues that the terms of the Staff Leasing Agreement are so significantly ambiguous that they must be construed against AMS as the drafting party. Taylor Roofing contends for that reason AMS Staff Leasing and Freestone in Liquidation rather than Taylor Roofing are liable for benefits in this case.
Review of the Staff Leasing Agreement, Exhibit E, defeats this argument. Provision 4B clearly and unambiguously states that Taylor Roofing as the client company was to provide the required hiring paperwork in the form of the AMS Application for Employment prior to the start of any new staff or uninsured subcontractor (emphasis added). Exhibit E, P.1. Absent that, Provision 4B states the individual in question would not be a leased employee covered by workers' compensation insurance. AMS Exhibit E, P.1. Violation of that straightforward provision alone suffices to defeat the allegation Claimant was a leased employee of AMS on July 31, 2009. As previously noted, the evidence is clear no Application for AMS Employment was completed by the Claimant and submitted for him by Taylor Roofing at any time in 2009.
18
Issued by DIVISION OF WORKERS' COMPENSATION
Employee: Claudio Lopez
Injury No. 09-111744
Taylor Roofing points to Provision 4A of the Staff Leasing Agreement contained in AMS Exhibit E in support of their argument. That provision states the client company (Taylor Roofing) must submit each listed (currently leased) employee's gross payroll to AMS on a timely basis so that payroll checks for leased employees can be issued. Provision 4A states if gross payroll for leased employees was not timely furnished to AMS, that worker was the sole employee of the client company (Taylor Roofing) for the time not properly reported, co-employment was destroyed, dual employment was created, and insurance coverage was voided. AMS Exhibit E, P.1. While it may be confusing that a provision referring only to currently leased employees appears in the contract prior to the provision describing how to properly lease employees (Provision 4B), this does not make the contract internally inconsistent. It is clear that Provision 4A only applies to employees currently leased to AMS and Claimant was not currently leased to AMS. As a result, it is unnecessary to ascertain the meaning of co-employment versus dual employment and, therefore, the argument that these words are ambiguous and the contract is internally inconsistent fails.
However, if Taylor Roofing argues that it does apply regardless of the proper lease relationship being established, then AMS can argue that this provision may be inartfully drafted, but nevertheless clearly indicates that the client company must submit gross payroll to AMS on a timely basis or there is no workers' compensation coverage for the individual in question. As noted, Taylor Roofing at no time submitted gross payroll for Claimant Lopez through AMS Staff Leasing despite the clear requirement imposed under Provision Claimant 4A. Instead, Taylor Roofing paid the Claimant with cash indirectly through Alberto Frias according to Claimant's uncontroverted deposition testimony.
Taylor Roofing cannot seriously contend they misunderstood Provision 4A of the Staff Leasing Agreement. In addition to the Staff Leasing Agreement, AMS Exhibit E contains the Initially Covered Workers' Roster stating the initial list of names of Taylor Roofing workers to be submitted as leased employees for AMS on March 16, 2009. This document was completed and signed by Jay Hammons for Taylor Roofing on March 16, 2009, Exhibit E, P.9-11. The Initially Covered Workers' Roster again contained in AMS Exhibit E, specifically and unambiguously states that workers' compensation coverage for leased employees occurs only if (1) AMS Staff Leasing receives completed AMS Staff Leasing Employee Applications for each leased employee and (emphasis added) the total gross payroll for each leased employee must be reported to AMS Exhibit E, P. 9. The document then further states the following also at AMS Exhibit E, P. 9:
REMEMBER...
Employees CANNOT BE PAID WITHOUT A COMPLETED APPLICATION and workers' compensation coverage is NOT extended to any employee who was not paid through AMS Staff Leasing.
19
Issued by DIVISION OF WORKERS' COMPENSATION
Employee: Claudio Lopez
Injury No. 09-111744
- Workers' compensation coverage for employees, NOT included on this roster, and for new employees, is not effective until a complete AMS Staff Leasing Application for Employment is received by the HABL payroll department.
Similarly, Taylor Roofing Exhibit A, the Certificate of Liability Insurance, specifically states at page 1 that workers' compensation "coverage is not provided for any employee for which the client is not reporting wages to AMS. "The Certificate of Liability coverage limits workers' compensation coverage to 100% of the employees of AMS leased to Taylor Roofing." The insured was listed as AMS 1/c/f, labor contractor for Taylor Roofing, the client company, Taylor Roofing Exhibit A, P.1.
Taylor Roofing appears to be taking the position that any individual working on a Taylor Roofing project on July 31, 2009 was entitled to workers' compensation coverage through AMS Staff Leasing/Dallas National/Freestone Insurance in Liquidation. The argument appears to be that Taylor Roofing as an entity was insured notwithstanding that no Application for Employment or payroll for claimant Lopez was submitted to AMS Staff Leasing at any time. Taylor Roofing agues the failure to submit the Dallas National/Freestone workers' compensation policy at Hearing entitles them to an inference in support of this argument.
Taylor Roofing itself provided no evidence whatsoever that it was an entity insured through Dallas National/Freestone on July 31, 2009. Mr. Taylor, who was present, provided no testimony or produced no written evidence Taylor Roofing was directly insured as an entity by Dallas National/Freestone in Liquidation on July 31, 2009. As we stipulated, Dallas National/Freestone insured AMS Staff Leasing on July 31, 2009. The entire purpose of the Staff Leasing Agreement was for Taylor Roofing to lease employees through AMS Staff Leasing. Those AMS leased employees only were then covered employees for workers' compensation insurance under AMS Staff Leasing's policy with Dallas National Insurance Company/Freestone.
Taylor Roofing leased employees from AMS Staff Leasing (AMS Exhibit E) and the leased employees only were covered under AMS Staff Leasing's workers' compensation policy with Dallas National Insurance Company/Freestone Insurance Company on July 31, 2009. Taylor Roofing never took the necessary steps pursuant to the Staff Leasing Agreement to lease claimant Lopez from AMS Staff Leasing. As such, claimant Lopez was never a leased employee of AMS Staff Leasing on July 31, 2009 and not covered by the AMS workers' compensation policy with Dallas National/Freestone Insurance Company. Taylor Roofing was aware of and complied with the requirements of the AMS Staff Leasing Agreement for numerous direct employees in 2009 but not for subcontractor Lopez for whatever reason. I find substantial and competent evidence to find Taylor Roofing was the employer of Claimant Lopez on the date of accident. As such, liability rests with Taylor Roofing as an uninsured entity on July 31, 2009.
ISSUE 2 - PAST MEDICAL
Claimant admitted into evidence Claimant's Exhibit 2, the deposition of Dr. Volarich, which contains in part Deposition Exhibit C, uncertified copies of all medical bills incurred due to his injury of July 31, 2009, subject to the hearsay objections offered at that time. At the
Issued by DIVISION OF WORKERS' COMPENSATION
Employee: Claudio Lopez
Injury No. 09-111744
deposition of Dr. Volarich the Assistant Attorney General representing the Second Injury Fund and the attorney for AMS Staff Leasing objected as hearsay to the attachment of Deposition Exhibit C, uncertified medical bills, sent to the claimant. Those objections are hereby sustained. Therefore, the Deposition Exhibit C contained in Claimant's Exhibit 2 will not be admitted as evidence.
Claimant asserts in Claimant's Exhibit 5 an out-of-pocket expense of $1,272.83 to Wal-Mart Pharmacy. As employee failed to offer the bill from Wal-Mart Pharmacy at the hearing and it was not admitted as part of Claimant's Exhibit 2, the amount for this out of pocket as represented in Claimant's Exhibit 5 will not be awarded.
Claimant Lopez is not entitled to an award of $122,923.08 (the full amount of all medical billed) in past medical expenses. Missouri case law is clear that Claimant Lopez is entitled to a past medical award that reflects only his current actual liability. Claimant Lopez is not entitled under the law to recover full-price medical bills representing a windfall in excess of his current actual liability for medical care. *Farmer-Cummings v. Personnel Pool of Platte County*, 110 SW3d 818,821 (Mo. 2003). Missouri courts have held that an employee is not entitled to compensation for healthcare provider write-offs *Mann v. Varney Construction*, 23 SW3d 231, 233(Mo App. 2000). In *Lenzini v. Columbia Foods*, 829 SW2d 482, 487(Mo. App. 1992), the Court determined the employee was not entitled to compensation for Medicaid write-off amounts when the total amount submitted to Medicaid would never be sought from Claimant.
Claimant's Exhibit 4 establishes that St. John's Department of Radiology has an outstanding balance of $620.95 for services on 7/31/2009. Nowhere in AMS Exhibit A does it show payment for any of these charges, therefore the amount owing is $620.95 as reflected on the bill. As no evidence was offered to dispute the amount showed as owing on this particular bill, this amount is found to still be owing.
AMS Exhibit B, the certified Newton County Ambulance bill, indicates that Newton County Ambulance District accepted a 1,017.29 Medicaid payment as payment in full for the 2,549.88 originally billed. Exhibit B shows a zero balance due Newton County Ambulance District.
AMS Exhibit C, the certified copy of the University of Missouri Healthcare/University Physicians billing records, dated May 22, 2017, indicates the University Medical Center accepted $16,515.49 from Medicaid as full payment with a zero balance on the initial charges of $90,415.67 for the hospitalization charges of Claimant from July 31, 2009, through August 11, 2009, (P.9). AMS Exhibit A, the Medicaid lien, confirms Medicaid paid $16,515.49 in medical expenses covering dates of service from July 31, 2009, (p4).
AMS Exhibit C reveals additional bills from University Hospital for service dates August 21, 2009; September 15, 2009; October 27, 2009; and January 26, 2010. They show OTC cash payments to University Hospital and Clinics September 5, 2009, 25.00; October 27, 2009, 25.00; and January 26, 2010, 25.00. These bills all show zero outstanding balances as a result of discounts, adjustments, write-offs (P. 10-13); and out-of-pocket payments.
21
Issued by DIVISION OF WORKERS' COMPENSATION
Employee: Claudio Lopez
Injury No. 09-111744
AMS Exhibit C indicates medical bills from University Physicians from July 31, 2009 - January 26, 2010. This exhibit shows two personal payments to University Physicians October 27, 2009, 25.00 and January 26, 2010, 25.00, representing out-of-pocket payments by claimant. These bills consistently showed outstanding zero balance due from the Claimant. These bills were satisfied as a result of Medicaid payments, Medicaid adjustments, other adjustments, write-offs, and out-of-pocket payments (P.14-46).
The medical bills submitted at hearing by both AMS and Claimant show outstanding balances due from the Claimant. These are charges from University Physicians for a 50 cent charge on August 1, 2009, (P.20); a 50 cent charge on August 3, 2009, (P.33); a 50 cent charge on August 4, 2009, (P.28); a 50 charge on August 22, 2009, (P.34); a balance of 69.00 for September 15, 2009, (P. 47); a balance of 68.75 for October 27, 2009, visit (P.48); a balance of 95.25 for x-rays taken on January 26, 2010, (P.49); and a balance of 52.25 for an office visit on January 26, 2010, (P.50). Additionally, the St. John's Department of Radiology bill shows a balance of 620.95 for x-rays performed on July 31, 2009. These outstanding bills amount to 908.20. There was no evidence offered to dispute this outstanding charge.
Claimant submitted Exhibit 4, copies of medical bills sent to him in 2009 and January 2010 in an attempt to argue that he is still actually liable for the total amount of the initially charged bills of $122,923.08. Claimant, however, admitted on cross-examination that he had not been contacted seeking payment for related medical bills for at least several years. Claimant's argument also is contrary to the evidence that the recent certified healthcare bills offered by AMS in AMS Exhibits B and C show zero balances as a result of Medicaid payments, Medicare adjustments, other adjustments, write-offs, and out-of-pocket but for the small outstanding balances totaling $908.20.
Claimant admitted Exhibit 5, a handwritten statement of his out of pocket expenses in the amount of $1,397.83. Exhibit C shows the out-of-pocket payments to the University of Missouri Healthcare as OTC cash payments in the amount of 75.00 and to University Physicians as personal payments in the amount of 75.00. No evidence was admitted which showed out-of-pocket payments to Walmart Pharmacy.
Missouri HealthNet has asserted a lien in the amount of $21,795.53 for what it has paid in the past for Claimant's treatment. Despite receiving notice of the hearing (Court Exhibit 1 admitted by agreement post trial October 10, 2017), Missouri HealthNet was not present for the Final Hearing on October 5, 2017. Missouri HealthNet chose not to appear and introduce any evidence at this hearing with regard to the services that resulted in the payments that they have made. Missouri HealthNet has failed to meet their burden of proving that the employers/alleged employers/insurer are responsible for the medical expenses that Missouri HealthNet alleges were related to Claimant's work injury of July 31, 2009. Therefore, I find and conclude that there is not substantial and competent evidence to support Missouri HealthNet's claim for reimbursement of what they have paid in this claim. I further find and conclude that there is competent and substantial evidence to extinguish Missouri Health Net's Medicaid lien in the amount of $21,795.53.
22
Issued by DIVISION OF WORKERS' COMPENSATION
Employee: Claudio Lopez
Injury No. 09-111744
Claimant has only met his burden of proving actual liability for medical bills totaling $1,033.20 the amount of outstanding charges owed University Physicians, University Hospital, and St. John's Department of Radiology (908.20) and his out-of-pocket payments (125.00). Claimant is awarded past medical expenses of 1,033.20. I find employer, Taylor Roofing liable for Claimant's past medical of 1,033.20.
ISSUE 3 - FUTURE MEDICAL
Claimant Lopez seeks an award of open future medical treatment for his right pelvis and wrist injuries sustained on July 31, 2009. For the reasons listed below, the claim for open future medical treatment is denied.
Claimant testified to some ongoing right wrist and pelvic complaints at the Final Hearing. That testimony, however, is at odds with his prior deposition testimony and the history of his current complaints recorded by Dr. Volarich, his evaluating physician. At his deposition on September 26, 2012, Claimant denied pain or physical limitations with the use of his right wrist stating "everything is fine." Exhibit H, P.19. Claimant testified he could use his right wrist well. Exhibit H, p. 20.
At his deposition, Claimant denied pain relating to his right pelvic injury sustained on July 31, 2009. Exhibit H, P. 22. Claimant testified at his deposition his pelvic/hip condition was the same as it was prior to the July 31, 2009, injury. Exhibit H, P. 22.
Claimant testified at Hearing he had not sought medical treatment of any kind since he was last seen by his physician in Columbia, Missouri on January 26, 2010, almost eight years earlier. Claimant testified he has taken no prescription or over-the-counter medication for some time in connection with his July 31, 2009, injury. That testimony is consistent with his September 26, 2012, deposition testimony in which Claimant also indicated he was taking no medications for his injury at that time as well.
Claimant Lopez testified at his September 26, 2012, deposition that he did not feel he needed additional medical treatment for his July 31, 2009, injuries because he felt fine. Exhibit H, P. 35. Claimant specifically testified at his deposition he did not feel he needed to go to physical therapy. Exhibit H, P. 36. Claimant did not contradict this deposition testimony at the Final Hearing.
Dr. Volarich testified in his deposition that Claimant could require occasional future pain medications and physical therapy related to his July 31, 2009, injury. Exhibit 2, P. 21. Dr. Volarich, however, acknowledged Claimant showed no need for those medications or physical therapy at the time of his examination and had sought no related medical care at all since January 26, 2010. Exhibit 2, P. 33.
Dr. Volarich testified that Claimant retained hardware for both the right pelvis and right wrist in connection with the surgeries performed following his July 31, 2009, injury. Exhibit 2, P. 21. Claimant had sought no related medical care at all since January 26, 2010. Exhibit 2, P. 33.
Issued by DIVISION OF WORKERS' COMPENSATION
Employee: Claudio Lopez
Injury No. 09-111744
P. 22. Dr. Volarich testified hardware may have to be removed or replaced at times but specifically opined that the prospective need for surgical modification or removal of the pelvis or right wrist hardware in this case was very low. Exhibit 2, P. 29. Dr. Volarich specifically testified Claimant expressed no problems or issues with hardware at the time of his examination. Exhibit 2, P. 29. Claimant raised no specific issues with his retained hardware at the Final Hearing, which took place over eight years subsequent to his August 4, 2009, surgery.
For these reasons, the claim for open future medical is denied.
ISSUE 4 - COMPENSATION RATE
The only evidence on the issue of Claimant's compensation rate is the testimony of Mr. Lopez. At the hearing, Claimant testified he earned $130.00 a day and worked six days a week. Claimant produced no written wage information or receipts. Although Claimant produced no tax documents in support of his testimony, I find Claimant's testimony credible. Claimant's testimony results in an average weekly wage of 780.00 and rates of 520.00 for temporary total disability and the maximum permanent partial disability rate of $422.97.
AMS Staff Leasing has no evidence to offer on the issue of the compensation rate. AMS never issued payroll or was involved in any financial transactions of any kind involving the Claimant.
Taylor Roofing offered no evidence on the issue of the compensation rate. Claimant testified in his deposition that he was paid in cash by Alberto Frias, who received the cash from Taylor Roofing, Exhibit H, P. 27, P. 29. Taylor Roofing was in the best position to offer definitive evidence on the issue of the compensation rate but failed to do so.
ISSUE 5 - TEMPORARY TOTAL DISABILITY
Claimant seeks an award of temporary total disability for 1 year, or 52 weeks of lost time benefits from August 1, 2009, through July 31, 2010. While Claimant is entitled to a temporary total disability award, the evidence fails to support Claimant's position he is entitled to 52 weeks of lost time benefits.
Claimant remained under active medical treatment for his July 31, 2009, injury until January 26, 2010. Exhibit 1. At no time subsequent to January 26, 2010, did Claimant undergo additional medical treatment related to the July 31, 2009, injury. At the time of his January 26, 2010 examination, Claimant reported he had no complaints of pain. Exhibit 1. Claimant was said to be doing well. Exhibit 1. More importantly, Claimant's physician released him at that time without any particular work restrictions. Exhibit 1. Dr. Volarich admitted in his deposition that Claimant was released on January 26, 2010, without restrictions. Exhibit 2, P. 33. Dr. Volarich offered no testimony supporting a finding that Claimant's period of temporary total disability extended past January 26, 2010. Exhibit 2, P. 33. Based on the evidence, Claimant's award of temporary total disability is limited to that time period ending on January 26, 2010.
24
Issued by DIVISION OF WORKERS' COMPENSATION
Employee: Claudio Lopez
Injury No. 09-111744
There is substantial and competent evidence to find that the Claimant was unable to return to work from August 1, 2009, through January 26, 2010. I find that Claimant is owed TTD benefits for the time period covering August 1, 2009, through January 26, 2010, (25 weeks and 4 days). At the Claimant's TTD rate of 520.00, the Claimant is owed 13,297.14 in TTD benefits. The employer has not paid any TTD benefits. Therefore, the employer, Taylor Roofing, is ordered to pay Claimant $13,297.14 in back owed TTD benefits.
ISSUE 6 - NATURE AND EXTENT OF PERMANENT PARTIAL DISABILITY
After his injury, Claimant moved to Hyattsville, Maryland, where he currently resides with his family. Claimant was not able to return to roofing work. He now performs carpentry work. However, because of the continuing problems he has with his pelvis and right wrist, Claimant is only able to pick up trash on the carpentry job sites.
Claimant continues to experience ongoing difficulties as a result of his work injuries of July 31, 2009. He is no longer able to lift heavy things as he did prior to July 31, 2009. Claimant continues to experience pain in his right wrist, which is exacerbated with hot and cold weather.
Claimant also continues to experience difficulties because of his pelvis injury. Claimant has increased pain in his pelvis after working. When Claimant walks a lot, he experiences increased pain in his pelvis. Claimant testified he only works approximately Two (2) to Three (3) hours a day because he is not able to physically walk more than that amount of time because of the 20 screws that are in his pelvis. Wearing a belt is bothersome to Claimant after his pelvis injury. Claimant cannot keep coins or keys in his pants pocket as he did prior to July 31, 2009, because of the sensation it causes on his pelvis. Claimant is not able to run as he did prior to July 31, 2009. Claimant enjoyed playing soccer prior to July 31, 2009, but is no longer able to play most positions since he can no longer run. The only position Claimant can play in soccer is goalie, which does not require running up and down the field. Prior to July 31, 2009, Claimant did not have any problems with or receive any medical treatment for his pelvis and right wrist.
Dr. David Volarich evaluated Mr. Cabrera on September 24, 2012. At the evaluation on September 24, 2012, Dr. Volarich recorded that Claimant experienced some pain in his right hip with some of the testing he performed. Claimant had less flexion, extension, radial, and ulnar deviation than normal with range of motion in his right wrist. Upon examination, Claimant had 1/4 crepitus with circumduction of the right wrist. Claimant also had some discomfort when palpating the radiocarpal joint in his right hand. Claimant was restricted on range of motion in all planes with regard to his right hip. Claimant is restricted with full flexion and full external rotation in his right hip.
With regard to the injuries Claimant sustained in his fall of July 31, 2009, Dr. Volarich diagnosed Claimant with (1) comminuted hemipelvis fractures including the right iliac, comminuted acetabular pubis, and ischial fractures status post open reduction of both columns.
Issued by DIVISION OF WORKERS' COMPENSATION
Employee: Claudio Lopez
Injury No. 09-111744
for acetabular fracture and (2) right distal radius comminuted intraarticular fracture with ulnar styloid fracture status post open reduction and internal fixation of the radius fracture.
Dr. Volarich assigned disability ratings of 30% of the body as a whole rated at the pelvis and 35% of the right wrist to the Claimant for the injuries that Claimant sustained on July 31, 2009. These ratings accounted for pain and discomfort with weather changes on both the pelvis and right wrist, and stiffness and lost motion in the right wrist. Dr. Volarich opined that the combination of Claimant's disabilities from the injuries of July 31, 2009, created a substantially greater disability than the simple sum or total of each separate injury/illness and opined a loading factor should be added.
I observed Claimant at the hearing and find Claimant's testimony with regard to his current medical condition credible. I also find Dr. Volarich's testimony credible. There were no other expert opinions in evidence other than Dr. David Volarich. I find that there is competent and substantial evidence to find that the Claimant has sustained permanent partial disability of 30% of the body as a whole rated at the pelvis and 35% of the right wrist for the injuries that Claimant sustained on July 31, 2009. I also find that there is competent and substantial evidence to find that a loading factor of 10% should be added.
At the Claimant's maximum compensation rate of $422.97, 30% of the body as a whole for the pelvis injury (120 weeks x $422.97 = $50,756.40), 35% of the right wrist (61.25 weeks x $422.97 = $25,906.91) and a Ten Percent (10%) loading factor (18.13 weeks x $422.97 = 7,666.33) totals 84,329.64. I hereby find and conclude that the employer, Taylor Roofing, owes and is ordered to pay the Claimant $84,329.64 for permanent partial disability resulting from the July 31, 2009, injuries.
ISSUE 7 - DISFIGUREMENT
The Claimant was physically present at the hearing on October 5, 2017. The Claimant has significant scarring that extends from his right wrist to his right forearm resulting from the work injury and surgery. I viewed the Claimant's right arm at the hearing on October 5, 2017, and assessed disfigurement. I find and conclude that the Claimant has scarring sufficient to entitle him to receive compensation in the amount of 10 weeks for disfigurement. I order Taylor Roofing to pay $4,229.70 to Claimant.
ISSUE 8 - LIABILITY OF THE SECOND INJURY FUND
Claimant's injury occurred on July 31, 2009. Therefore, this claim is under the law that was in effect prior to the changes in the Missouri Workers' Compensation law with regard to uninsured claims that took effect in January, 2014. Missouri Revised Statute Section 287.220(5) that was in effect at the time of the Claimant's work injury provided that if an employer fails to insure or self-insure as required by statute, funds may be withdrawn from the Second Injury Fund to cover the fair, reasonable, customary, and necessary expenses to cure and relieve the effects of a work injury or disability of an injured employee in the employ of an uninsured employer. I find
26
Issued by DIVISION OF WORKERS' COMPENSATION
Employee: Claudio Lopez
Injury No. 09-111744
that as a result of the employer, Taylor Roofing, having failed to comply with the terms of AMS Staffing leasing agreement and stipulating they were the statutory employer of the Claimant, Taylor Roofing is an uninsured employer. Therefore, the Second Injury Fund under the provisions of 287.220(5) is liable for the payment of the outstanding and out-of-pocket medical ordered herein, I hereby order the Second Injury Fund to pay directly to Claimant the amount $1,033.20.
As future medical is not awarded, the issue of whether it is unconstitutional pursuant RSMo. 287.220(15) wherein the Second Injury Fund is not liable for any medical benefits incurred after July 1, 2012, when benefits have previously accrued is moot.
ISSUE 9 - REQUEST FOR ATTORNEY FEES BY ATTORNEY CARTER FOR TAYLOR ROOFING
Taylor Roofing admitted Taylor Roofing Exhibit D, a statement of attorney fees and costs of attorney Carter incurred in the defense of Taylor Roofing in this case. Exhibit D contains a total statement of $8,164.80 in attorney fees and costs. Taylor Roofing requests that the Division of Workers' Compensation assess the total amount of attorney Carter's attorney fees/costs against AMS Staff Leasing/Freestone in Liquidation.
Generally, each party pays only their own attorney's fees. The Missouri Workers' Compensation Statute provides some exceptions to the general rule. First, in the situation that an employer has provided and terminated compensation, MO Revised Statute Section 287.203 provides a mechanism for a Temporary Hardship Hearing. In the event a Temporary Hearing is necessitated, under 287.203, the Division may assess the whole cost of the proceedings upon the party who brought, prosecuted, or defended the case without reasonable grounds. This case does not involve a situation where compensation was terminated necessitating a Temporary Hearing. As a result, Section 287.203 is not applicable.
MO Revised Statute Section 287.560 states if the Division or Commission determines any proceedings have been brought, prosecuted or defended without reasonable grounds, it may assess the whole cost of the proceedings upon the party who so brought, prosecuted or defended them. Taylor Roofing seeks an award of attorney fees/costs apparently pursuant to Section 287.560.
AMS contends the claim has been defended with reasonable grounds. Taylor Roofing never took the necessary steps to lease Claimant Lopez from AMS Staff Leasing as set forth in the Staff Leasing Agreement contained in Exhibit E. As such, Claimant Lopez was not entitled to workers' compensation coverage under the AMS policy with Freestone/Dallas National for the July 31, 2009, injury. Taylor Roofing was fully aware of the steps necessary to lease Claimant Lopez and failed to take them. Taylor Roofing as an entity was not insured through Dallas National/Freestone. Only leased AMS employees working with Taylor Roofing were entitled to workers' compensation benefits pursuant to the Dallas National/Freestone policy as was
27
Issued by DIVISION OF WORKERS' COMPENSATION
Employee: Claudio Lopez
Injury No. 09-111744
indicated in the Staff Leasing Agreement and virtually all correspondence between AMS Staff Leasing and Taylor Roofing also admitted into evidence.
As is evidenced by the long proceedings prior and subsequent to the commencement of the Hearing on October 5, 2017, this is a very complex matter further complicated by the eventual termination of AMS business activities and the liquidation proceedings involving Dallas National/Freestone Insurance Company in Liquidation in 2013 and 2014 that contributed to discovery difficulties and delays. Nevertheless, this claim was defended by AMS on valid and reasonable grounds and the request for attorney fees pursuant to Section 287.560 is denied.
There was a second claim, Injury number 09-070431, with regard to Mr. Claudio Lopez involving the same injury of July 31, 2009 that Aldo Dominguez, Claimant's prior attorney, filed. Mr. Dominguez filed a lien in the amount of $1,220.72. Mr. Dominguez was provided with certified notice of the Final Hearing scheduled for 9:00 a.m. on October 5, 2017 (See Claimant's Exhibit 3). Mr. Dominguez personally signed the certified mail receipt stamped September 7, 2017 (See Claimant's Exhibit 3). Mr. Dominguez did not appear for the hearing on October 5, 2017. Claimant dismissed the claim for Injury number 09-070431 at the hearing on October 5, 2017, as a result Mr. Dominguez' lien was extinguished.
I allow The Newman Law Firm, LLC an attorneys' fee of 25% of all amounts awarded herein, which shall constitute a lien upon this award.
I certify that on 2-26-18 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 __________________________
Karen Wells Fisher
Administrative Law Judge
Division of Workers' Compensation
By __________________________