Section 287.220.5, RSMo, provided, in pertinent part, the Second Injury Fund's liability for medical expenses:
1 The present-day version of this statute is now § 287.220.7, RSMo.
Injury No.: 09-111744
Employee: Claudio Lopez
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If an employer fails to insure or self-insure as required in section 287.280, funds from the second injury fund may be withdrawn to cover the fair, reasonable, and necessary expenses to cure and relieve the effects of the injury or disability of an injured employee in the employ of an uninsured employer, or in the case of death of an employee in the employ of an uninsured employer, funds from the second injury fund may be withdrawn to cover fair, reasonable, and necessary expenses in the manner required in sections 287.240 and 287.241. In defense of claims arising under this subsection, the treasurer of the state of Missouri, as custodian of the second injury fund, shall have the same defenses to such claims as would the uninsured employer.
At the hearing, AMS provided medical billing records that showed zero balances for almost all of employee's medical bills. The remaining amount actually paid by employee amounted to 1,033.20. The Second Injury Fund agrees that employee's actual liability was 1,033.20.
However, on August 16, 2016, Mo HealthNet sent a letter to employee's attorney and to the attorney for Taylor Roofing notifying them of a lien in the amount of $21,795.53 for medical expenses paid by Mo HealthNet for employee due to the work injury. The administrative law judge did not include the lien amount as part of employee's liability, but "extinguished" that lien in her Award because no one from Mo HealthNet appeared at the hearing to prove that the medical expenses were related to employee's work injury and that employee was responsible for repaying the lien amount. We find that an administrative law judge does not have the authority to extinguish or lessen the lien amount.
Medicaid, or Mo HealthNet, a Division of the Department of Social Services, is established through § 208.201, RSMo. Payments for medical services by Mo HealthNet are set forth in § 208.152, RSMo. Section 287.266, RSMo, allows Mo HealthNet to establish a lien against the parties in a Workers' Compensation action for "[p]ayments made to or on behalf of a person eligible for public assistance as the result of any compensable injury, occupational disease or disability as defined by this chapter[.]" § 287.266.2, RSMo. Section 287.266.10, RSMo, provides:
- The administrative law judge, pursuant to authority granted under section 287.610, shall apportion the debt due the state between the injured worker and the injured worker's employer or their designated representatives when an agreement cannot be reached regarding the respective liability for money expended by the department of social services on behalf of the injured employee, but in no case shall the debt due the state be reduced.
(emphasis added). Therefore, an administrative law judge can apportion the Mo HealthNet debt between the parties, but cannot reduce the amount of the lien or extinguish the lien. We conclude that employee is still liable for $21,795.53 paid by Mo HealthNet on behalf of employee for medical expenses due to the work injury. This amount is in addition to the $1,033.20 employee already paid for past medical expenses.
This case is similar to Mann v. Varney Constr., 23 S.W.3d 231 (Mo. App. 2000), in which the court held that the Second Injury Fund was liable for employee's actual expenses pursuant to § 287.220.5, RSMo, including $19,547.50 paid by Medicaid, and for which Medicaid had a lien.
Injury No.: 09-111744
Employee: Claudio Lopez
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Applying the Mann decision and § 287.266, RSMo, we conclude that the Second Injury Fund is liable for the lien amount of 21,795.53 in addition to the 1,033.20 already paid by employee for past medical expenses. The Second Injury Fund is therefore liable for past medical expenses in the total amount of $22,828.73.
**Future Medical Treatment**
The administrative law judge denied future medical because she was persuaded that it was not necessary. Employee argues that the administrative law judge should have awarded future medical because Dr. David Volarich indicated that future medical would be necessary. Dr. Volarich testified that employee would require future pain medications and physical therapy, but agreed that employee did not show any need for such future care at the time of his examination. Dr. Volarich opined that employee may need surgical modification or removal of hardware at some point. There was no competing expert testimony stating that employee would not require future medical.
Instead, the Second Injury Fund argues that should employee require surgical modification or removal of the hardware at some future point, then employee could utilize the reactivation provision of § 287.140.8, RSMo, which provides:
> The employer may be required by the division or the commission to furnish an injured employee with artificial legs, arms, hands, surgical orthopedic joints, or eyes, or braces, as needed, for life whenever the division or the commission shall find that the injured employee may be partially or wholly relieved of the effects of a permanent injury by the use thereof. The director of the division shall establish a procedure whereby a claim for compensation may be reactivated after settlement of such claim is completed. The claim shall be reactivated only after the claimant can show good cause for the reactivation of this claim and the claim shall be made only for the payment of medical procedures involving life-threatening surgical procedures or if the claimant requires the use of a new, or the modification, alteration or exchange of an existing, prosthetic device. For the purpose of this subsection, "life threatening" shall mean a situation or condition which, if not treated immediately, will likely result in the death of the injured worker.
However, we do not agree that employee is able to avail himself of the reactivation procedure in this matter because this matter was never settled. Pursuant to case law, there are three requirements for utilizing the reactivation provision:
- a claim for compensation must have been filed within the time frame of the statute of limitation;
- the claim for compensation must have been settled; and
- good cause must be shown for the reactivation of the claim.
*Pierce v. Zurich Am. Ins. Co.,* 441 S.W.3d 208, 213-14 (Mo. App. 2014) (quoting *Clanton v. Teledyne Neosho,* 960 S.W.2d 532, 534 (Mo. App. S.D. 1998)).
As this matter did not involve a settlement, employee would not be able to reactivate his claim in case he needs surgical modification or removal of the hardware. We find persuasive Dr. Volarich's opinion that employee will need future medical care, even though employee has not utilized such care thus far. Therefore, it is necessary to keep future medical open and to hold the Second Injury Fund liable for such future medical care.
Injury No.: 09-111744
Employee: Claudio Lopez
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**Conclusion**
We modify the award of the administrative law judge as to the issues of past medical expenses and future medical treatment.
Employee is entitled to, and the Second Injury Fund is hereby ordered to pay, past medical expenses in the amount of $22,828.73.
Employee is entitled to, and the Second Injury Fund is hereby ordered "to provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury." § 287.140.1, RSMo.
The award and decision of Administrative Law Judge Karen Wells Fisher is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.
The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.
Any past due compensation shall bear interest as provided by law.
Given at Jefferson City, State of Missouri, this 3rd day of October 2019.
LABOR AND INDUSTRIAL RELATIONS COMMISSION
Robert W. Cornejo, Chairman
DISSENTING OPINION FILED
Reid K. Forrester, Member
Curtis E. Chick, Jr., Member
Attest:
Secretary
Injury No.: 09-111744
Employee: Claudio Lopez