Billy Hood v. Vandalia Area Historical Society

Employee: Billy Hood

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Here is the sequence of events:

- July 31, 2014: Claimant files a claim for compensation against VAHS and Mr. Menech with the Division of Workers Compensation in injury number 12-107135.

- September 15, 2014: Claimant files an amended claim for compensation, adding the Second Injury Fund as an additional party in injury number 12-107135.

- August 9, 2016: The administrative law judge issues a final award in injury number 12-107135.

- March 29, 2017: Claimant files civil lawsuit against VAHS and Paul Ray.

- July 19, 2017: The commission modifies the administrative law judge's award and issues a temporary award.

- January 21, 2018: Claimant files an amended petition adding Mr. Menech.

- September 24, 2018: Claimant executes a settlement agreement with Mr. Menech and VAHS, releasing them of all claims.

- October 5, 2018: Claimant dismisses the civil lawsuit with prejudice.

- January 8, 2019: Claimant accepts payment from the Second Injury Fund for $\ 23,226.27 for past medical expenses.

Section 287.220 .7 states, in pertinent part:

If an employer fails to insure or self-insure as required in section 287.280, funds from the Second Injury Fund may be withdrawn to cover the fair, reasonable, and necessary expenses incurred relating to claims for injuries occurring prior to January 1, 2014, to cure and relieve the effects of the injury or disability of an injured employee in the employ of an uninsured employer consistent with subsection 3 of section 287.140 .... In defense of claims arising under this subsection... the Second Injury Fund, shall have the same defenses to such claims as would the uninsured employer. Any funds received by the employee $\ldots$ through civil or other action, must go towards reimbursement of the second injury fund, for all payments made to the employee... from the Second Injury Fund pursuant to this subsection.

The election of remedies doctrine provides that "if there are two or more inconsistent remedies available, the election to pursue the one is a bar to any suit based upon the other."1 The purpose of the doctrine is to prevent double redress for a single wrong. ${ }^{2}$ "Where a party has a right to pursue one of two inconsistent remedies, makes his election, institutes suit and

[^0]

[^0]: ${ }^{1} Lewis v. Gilmore. 366 S.W.3d 522,525 (Mo. banc 2012) (citation omitted).

{ }^{2}$ Stromberg v. Moore, 170 S.W.3d 26, 30 (Mo. App. 2005).

Imployee: Billy Hood

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prosecutes it to final judgment, or receives something of value on the claim, he cannot thereafter pursue another and inconsistent remedy."3 In a claim for uninsured medical benefits from the Second Injury Fund, the Second Injury Fund has all the same defenses as would the uninsured employer. ${ }^{4}$

Missouri courts have addressed the election of remedies doctrine and its relation to workers' compensation claims. In Bailey v. McClelland, ${ }^{5}$ an employee was killed in a motor vehicle accident while driving a commercial truck. The decedent's wife filed a wrongful death suit against the employer in the circuit court, ending in a judgment in favor of the plaintiffs. ${ }^{6}$ The decedent's wife subsequently filed a claim against the Second Injury Fund, alleging that employer was uninsured at the time of the accident. ${ }^{7}$ The claim was denied by the Commission "because claimants elected to proceed in the circuit court to judgment before continuing to prosecute the workers' compensation claim." ${ }^{8}$

The court noted that the Second Injury Fund has all the same defenses as the employer in a claim for medical expenses under $\S 287.220 .7$. The court held that, "[a]s the alleged employer was not insured ... under $\S 287.280$, RSMo Supp. 1982, appellants could 'elect' to file a workers' compensation claim or could bring suit in the circuit court," and, therefore, the Commission's denial of benefits was affirmed. ${ }^{9}

In Lewis v. Gilmore, { }^{10}$ Lewis was killed in a motor vehicle accident while riding as a passenger in a truck driven by Gilmore, but owned by Freeman. Freeman, who was uninsured, was operating pursuant to a contract with DOT Transportation (DOT), which was insured. Lewis's widow filed a workers' compensation claim against Freeman and DOT, and filed a wrongful death claim against Gilmore and Freeman in circuit court.

The Supreme Court stated that:

When an employer does not carry workers' compensation insurance, the injured employee or his dependents "may elect" one of three options. First, the employee or his dependents may elect to file a civil action against ... the employer that fails to carry legally required workers' compensation insurance. Second, the employee or his dependents may elect to "recover under this chapter" and pursue a workers' compensation claim. Third, the employee or his dependents may elect to seek payment from the second injury fund. ${ }^{11}$

The Supreme Court found that Lewis's claim against Freeman and Gilmore was not barred, because she recovered workers' compensation benefits from DOT as the statutory employer, and then "elected to file a civil suit against Freeman due to his failure to carry workers' compensation insurance."12 Because Lewis took different action against each employer, the election of remedies did not apply. ${ }^{13}$

[^0]

[^0]: ${ }^{3} Alexander v. Link's Landing, Inc., 814 S.W.2d 614, 620 (Mo. App. 1991).

{ }^{4} Section 287.220.7.

{ }^{5} 848 S.W.2d 46 (Mo. App. 1993).

{ }^{6} Bailey, 848 S.W.2d at 46-47.

{ }^{7} Id.

{ }^{8} Id. at 47.

{ }^{9} Id.

{ }^{10} 366 S.W.3d 522 (Mo. banc 2012).

{ }^{11} Lewis, 366 S.W.3d at 525.

{ }^{12} Lewis, 366 S.W.3d at 526.

{ }^{13} \mathrm{Id}$.

We find that the election of remedies doctrine does apply to employee's case, and that it barred him from recovering the Second Injury Fund funds he received in 2019, due to his 2018 settlement of his civil law suit.

Employee's arguments appear to be focused on the timing of each of the events, whereas the Second Injury Fund's arguments are focused more on the aspect of employee receiving a financial windfall from receiving an award from his workers' compensation claim and his civil lawsuit.

We believe that the Second Injury Fund's arguments are more in line with the current case law regarding the remedies doctrine. Employee's employer (Menech) and VAHS were listed as parties in employee's workers' compensation claim and the civil suit. Since employee settled his civil suit against VAHS and Menech, we believe employee, under our interpretation of Bailey, Lewis, and $\S 287.280$, would receive a "double recovery" from the settlement of his civil suit, and the $\ 23,226.27 from the commission's July 19, 2017, temporary award.

Although employee pursued his workers' compensation claim before he filed his civil lawsuit, employee did not receive the Second Injury Fund award until 2019, which was after employee's civil lawsuit had been settled. Employee acknowledged receipt of the settlement funds on October 1, 2018, but did not receive the $\ 23,226.27 from the Second Injury Fund until January 2019.

After employee received the remedy (the $\ 53,000 from the 2018 settlement), employee was barred by the election of remedies doctrine from accepting the $\ 23,226.27. Furthermore, we believe that the Second Injury Fund can raise the election of remedies as a defense to the workers' compensation claim under $\S 287.220 .7$ because of the 2018 settlement, and because employee pursued its workers' compensation claim against the Second Injury Fund on the basis of employee being uninsured. Employee, therefore, must pay back the funds it received from the Second Injury Fund.

Employee's case can primarily be distinguished from Lewis because the claimant in Lewis filed a workers' compensation claim against an uninsured employer and an insured employer, and took different actions against each employer. Therefore, the election of remedies did not apply in Lewis.

In Bailey, the elections of remedies did apply since the employee in that case pursued claims against an employer and the Second Injury Fund. Likewise, the election of remedies applies in the present case since employee pursued a workers compensation claim against VAHS, Mr. Menech, and the Second Injury Fund; and pursued a civil claim against VAHS and Mr. Menech. Employee may elect a single remedy under $\S 287.220 .7$. Employee sought the same remedy in the civil claim and the workers' compensation suit, which is why the remedies doctrine applies to employee's case.

We also would like to point out that employee argued in his brief that workers' compensation statutes are to be construed liberally by resolving all doubts in favor of compensation. ${ }^{14} This has not been the law since August 28, 2005. { }^{15}$

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[^0]: ${ }^{14} Thomas v. Hollister, Inc., 17 S.W.3d 124, 126 (Mo. App. W.D. 1999).

{ }^{15} See \S 287.800$.

We affirm and adopt the award of the administrative law judge as supplemented herein. The award and decision of Administrative Law Judge Bruce Farmer is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this 25th day of January, 2022.


Attest:

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Reid K. Forrester, Member

Shalonn K. Curls, Member

Shalonn K. Curls, Member

Employee: Billy Hood

Invoice No.: 12-107135

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Department of Missouri

Jefferson City, Missouri

1. Are benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: August 20, 2012
5. State location where accident occurred or occupational disease was contracted: Audrain County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Claimant was an employee of Michael Menech. Claimant was not an employee of the Vandalia Area Historical Society.
7. Did employer receive proper notice? Employer Menech received proper notice.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Neither alleged employer carried workers' compensation insurance.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant injured his left eye while using a saw to cut boards for employer Menech.
12. Did accident or occupational disease cause death? No. Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Left eye
14. Nature and extent of any permanent disability: None
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer: None

1. Value necessary medical aid not furnished by employer/insurer? $\ 23,226.27 paid by the Second Injury Fund
2. Employee's average weekly wages: $\ 571.70
3. Weekly compensation rate: $\ 381.13
4. Method wages computation: award

1. Amount of compensation payable: None
2. Second Injury Fund liability: None

Claimant is hereby ordered to reimburse the Second Injury Fund in the amount of $\ 23,226.27 referable to past medical treatment and expenses.

1. Future requirements awarded: None

On December 9, 2020, the parties appeared for a final hearing in Columbia, Missouri. Billy Hood (Claimant) appeared personally and by attorney Anthony Laramore. The Vandalia Area Historical Society (alleged employer) appeared by attorney Heather Williams. Michael Menech (alleged employer) was unrepresented and appeared pro se. The Second Injury Fund appeared by counsel, Erica Schiff, Assistant Attorney General.

The parties stipulated to the following facts:

1. On or about August 20, 2012, Claimant sustained an accident that arose out of the course and scope of employment.
2. The accident occurred in Audrain County and venue is proper in Boone County.
3. Temporary disability benefits were not paid prior to the date of the temporary award.
4. The alleged employers did not pay medical benefits to Claimant.
5. Neither alleged employer was insured for workers' compensation benefits.
6. The Second Injury Fund paid $\ 23,226.27 in unpaid medical expenses.
7. Claimant is at maximum medical improvement.

The issues to be resolved are as follows:

1. Whether Claimant's claim is barred by the doctrine of election of remedies with the settlement of his civil case prior to the final award hearing.
2. Whether Claimant was an employee or statutory employee of either alleged employer on the date of injury.
3. Whether Claimant is entitled to future medical benefits.
4. Whether Claimant is entitled to past medical expenses.
5. Whether Claimant is entitled to temporary total benefits.
6. The nature and extent of Claimant's permanent partial disability.
7. The compensation rate for temporary total and permanent partial disability benefits.
8. Whether the Second Injury Fund is liable for uninsured medical expenses.
9. Whether the Second Injury Fund is entitled to reimbursement from the third-party settlement.
10. Whether the Vandalia Area Historical Society is entitled to attorney's fees and costs.

Claimant testified at the hearing in support of his claim. The following witnesses testified: Paul Ray, Carl Morningstar, and Lori Shaw. Michael Menech also testified. I take administrative notice of the division's files related to Claimant. Claimant offered the following exhibits, which were admitted without objection:

1. Ray deposition
2. Menech deposition

Issued by DIVISION OF WORKERS' COMPENSATION

2a. Transcript temporary hearing

1. SIF answer

1. Claim for Compensation

1. Amended Claim

1. VAHS answer

1. Letter from VAHS counsel to AG's office

1. Mid-Missouri Anesthesiologists bill

1. Dr. Gualberto bill

1. University of Missouri bill 11/23/12 - 12/4/12

1. University of Missouri bill 11/30/12 - 12/9/15

1. University of Missouri bill 11/20/12

1. University of Missouri bill 8/20/12 - 1/11/13

1. University of Missouri bill 8/20/12 - 1/11/13

1. University of Missouri bill 8/20/12 - 1/11/13

1. University of Missouri bill 11/23/12 - 1/11/13

1. University of Missouri records 11/23/12 - 11/19/15

1. University of Missouri records 8/20/12 - 8/21/12

1. Register report of VAHS 12/14/11 - 7/29/13

19a. Check from Menech to Hood 10/5/12

19b. Hood payment records 6/6/12 - 9/17/12

1. Hood affidavit 8/20/12

1. University Hospitals bill 2/8/16 - 3/22/16

1. University of Missouri records 2/8/16 - 4/26/16

1. Dr. Bobrow report 7/26/18

23a. Notice of Intent Dr. Bobrow report

23b. Dr. Bobrow deposition

1. Dr. Bobrow bill 7/26/18

1. Dr. Bobrow correspondence

1. Hannibal Regional records 12/17/17 - 3/18/19

1. Medical cost summary

1. Dr. Bobrow CV

1. LIRC temporary award 7/19/17

1. SIF application for review

1. Order of dismissal of Menech application for review

1. Menech application for review

1. Judge Zerrer award 9/9/16

1. Amended petition for damages

1. Petition for damages

1. SIF temporary award payments 1/8/19

The Vandalia Area Historical Society (VAHS) offered the following exhibits:

A. VAHS 501(c)(3) certification

B. Ray deposition

C. Menech deposition

D. Attorney time report

Claimant's objection to Exhibit D is overruled. All other exhibits admitted without objection.

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The Second Injury Fund offered the following exhibits:

I. Struemph affidavit with attachments

II. Petition for Damages

III. Amended Petition

IV. Acknowledgement and Receipt of Settlement Funds

V. Settlement Agreement and Release of All Claims

Claimant's objection to Exhibit V is overruled. All other exhibits admitted without objection. Mr. Menech did not offer any additional exhibits.

Claimant was 47 years old at the time of the final hearing. On August 20, 2012, Claimant was using a power saw to cut reclaimed lumber when something struck his left eye, causing an injury. (Exhibit 2a, Page 25). Claimant reported his injury to Mr. Menech the same day. (Exhibit 2a, Page 26). He subsequently underwent extensive treatment to the left eye on his own. Neither Mr. Menech nor the VAHS carried workers' compensation insurance. (Exhibit B, Page 59; Exhibit C, Page 29-30).

The Vandalia Area Historical Society (VAHS) is a Missouri 501(c)(3) non-profit organization that operates a local museum offering free admission to the public. (Exhibit A). The VAHS operates on a volunteer basis and has no employees. (Exhibit B, Pages 8 and 59). The VAHS has a Board consisting of five positions including President, Vice President, Secretary, Treasurer, and Reporter. The Board Members are volunteers who are not paid by the VAHS. (Exhibit B, Pages 6-7 and 67-68).

In 2012, the VAHS was engaged in the Cornerstone Project which consisted of expanding the existing museum into two neighboring properties. (Exhibit B, Pages 8-10; Exhibit C, Page 11). This was the first construction project undertaken by the VAHS. (Exhibit B, Pages 35 and 65). The project was initially performed using volunteer labor only. However, it became apparent that the VAHS would need construction expertise to perform work to finish the project. (Exhibit B, Page 12). The VAHS hired Michael Menech to find workers to complete the project and supervise their day-to-day work. (Exhibit B, Pages 16-18, 30-31, 60-64; Exhibit C, Pages 7, 34-35). Mr. Menech hired Claimant to work on the project as a carpenter. (Exhibit C, Page 21 and 25). At the time of Claimant's injury, there were three types of workers on the project. Mr. Menech was responsible for supervising the paid workers who performed carpentry/construction work. He was not responsible for the volunteer workers or the contractors performing HVAC, concrete, and/or roofing work. (Exhibit C, Pages 41-42 and 52-53).

Claimant worked for Mr. Menech for more than a year prior to his injury. Claimant was paid by the hour and his wage was not negotiable. The method, amount, and date of pay was determined by Mr. Menech, and Mr. Menech would, at times, pay Claimant from his own personal account (Exhibit 19a). Claimant's hours were set by Mr. Menech, and the instrumentalities of his work, and the day-to-day details of his work were controlled by Mr. Menech. Mr. Menech had the authority to hire and fire Claimant and the other employees on the job site.

Laurie Shaw and Carl Morningstar both worked with Claimant at the time of his injury and testified that Mr. Menech controlled the hours, details, instrumentalities and amount of pay for the

work performed, and hired and fired employees at the worksite. Mr. Menech had more than five employees on the job site. Additionally, there was no written or other agreement between Mr. Menech and Claimant. Construction or "handyman" services was Mr. Menech's normal business, which he provided to anyone who would request his services.

Paul C. Ray was the President of VAHS on the date of injury. (Page 6). During his deposition, Mr. Ray testified that the VAHS did not have any employees on August 20, 2012. (Page 8). The officers of VAHS were not paid but instead volunteered their time. (Pages 67 and 68). The renovation project being done on August 20, 2012 was to expand the existing VAHS museum from 112 S. Main into the neighboring properties at 108 and 110 S. Main in Vandalia, Missouri. (Pages 8-10). This was the first construction project undertaken by the VAHS and the first time the VAHS had hired contractors. (Pages 35 and 65). The paid workers brought some of their own tools. Mr. Menech also supplied some tools. (Page 20). The VAHS purchased materials for the project and provided safety goggles. (Pages 20, 36-38, 64). Mr. Menech purchased materials on behalf of the VAHS. He would either purchase the materials using a VAHS account, or he would purchase the materials and be reimbursed by the VAHS at a later date. (Page 20).

Mr. Ray testified that Mr. Menech was a member of the VAHS and did general labor work and remodeling prior to the Cornerstone Project. Mr. Menech had previously done occasional handyman work for the VAHS on an as-needed basis. He was paid occasionally for this work, and other times he volunteered. (Pages 11-14). There was no written contract between Mr. Menech and the VAHS to work on the project. (Pages 12 and 48). Rather, they had a verbal agreement with Mr. Menech to find workers to work on the project and monitor the day-to-day work they did. (Pages 14-16, 18, 30, 60-64).

Mr. Ray handled the contracts for the HVAC, roofing, and cement work being done. (Page 16). This work was separate from the construction work being supervised by Mr. Menech. Mr. Menech was responsible only for the paid workers that he hired. (Page 16). He kept track of how many hours each worker worked per week, and he used pre-signed checks that were provided by the VAHS to pay the workers. The workers would then sign a form confirming the hours they had worked. Mr. Menech filled in the checks with the amount owed to each worker and then later submitted the signed forms to the VAHS. (Pages 16, 24-25, 60). Mr. Menech was solely responsible for hiring workers, and he was the only person on site on a daily basis with the authority to hire or fire workers. (Pages 17-30). He was responsible for supervising the day-today work on the project. (Pages 18, 30, 60-64). Mr. Menech received a 1099 for his work on the project. (Page 29). 1099's were generated for each of the paid workers on the project. (Pages 2729).

Mr. Ray visited the project site once every other week to view the progress, but, otherwise, Mr. Menech was the person responsible for inspecting the work done by the paid workers. (Pages 18-19 and 73-75). Mr. Menech determined whether workers were qualified to work on the project and how much they would be paid per hour based on those qualifications. (Pages 32 and 73). Mr. Menech decided when work began and ended each day and assigned tasks to individual workers. (Pages 31 and 50). There was no contractual agreement between the VAHS and any of the workers who were hired by Mr. Menech. (Pages 26 and 49).

Mr. Ray's testimony at the final hearing was consistent with his 2015 deposition testimony.

Claimant was initially seen by Dr. Gualberto in Vandalia on the date of injury. Dr. Gualberto advised Claimant to go to the hospital. (Exhibit 9; Exhibit 2a, Page 26). Claimant went to the University Hospital Mason Eye Clinic the same day. He was diagnosed with a full-thickness left eye corneal laceration. Surgery was recommended. On 08/21/2012, Claimant underwent an open globe repair of the left eye. The post-operative diagnoses were an open globe injury and left eye corneal perforation. Claimant followed up at the Mason Eye Clinic post-operatively and continued to report left eye complaints. (Exhibits 10-15).

On 11/23/2012, Claimant presented to the University Hospital Emergency Department after having fallen down the stairs at home after having too much to drink. His BCL was dislodged, and reported multiple complaints, including loss of vision in the left eye. (Exhibits 16 and 17). Claimant continued to follow up through the beginning of 2013, at which time there was a gap in his treatment.

On 11/17/2015, Claimant presented to the University Hospital Emergency Department complaining of exposure to bleach fumes while cleaning at home that morning that caused bilateral eye burning. (Exhibit 17). Two days later, he was diagnosed with a left eye corneal scar and traumatic cataract. Surgery was recommended, specifically a corneal transplant and cataract surgery. However, Claimant did not have insurance at that time. (Exhibit 17).

Claimant did not undergo additional surgery on his left eye until 02/08/2016, at which time he underwent a penetrating keratoplasty of the left eye, conjunctival excisional biopsy of the left eye. (Exhibits 21 and 22). The post-operative diagnoses were a left eye corneal scar, conjunctival neoplasm of the left eye, and retro-corneal membrane. Claimant continued to follow up at the Mason Eye Clinic through 04/26/2016. (Exhibits 21 and 22). There was then another gap in his treatment until he was seen by Dr. Wood at the Hannibal Regional Medical Group on 01/30/2018. He complained of poor vision, intermittent redness, and exotropia that had developed since the date of injury. He was diagnosed with an eroded corneal suture, exotropia of the left eye, and corneal laceration of the left eye. (Exhibit 26). Claimant treated there until March 14, 2018, when he reported improvement in his vision. Dr. Wood's diagnoses on that date were corneal laceration of the left eye with history of cornea transplant, stable, and exotropia of the left eye, also stable. (Exhibit 26).

Claimant was examined by Dr. Bobrow on July 26, 2018 at the request of his attorney. Dr. Bobrow examined Claimant's vision and completed the Missouri Department of Labor and Industrial Relations Physician's Report on Eye Injuries. (Exhibit 23). Dr. Bobrow opined that Claimant was at maximum medical improvement for the August 20, 2012 injury. (Exhibit 23). However, Dr. Bobrow felt that Claimant may need strabismus surgery in the future to correct his exotropia and was also at risk of rejecting the corneal transplant which would potentially cause glaucoma, retinal detachment, and traumatic cataract and require a repeat corneal transplant and cataract surgery. (Exhibit 23). Dr. Bobrow opined that these surgeries would cost an estimated $24,000.00 in 2018 dollars. (Exhibit 23). Regardless of whether Claimant undergoes additional surgery, Dr. Bobrow felt that he would require semi-annual monitoring of the left eye for his remaining life expectancy, which the doctor estimated would cost $10,000.00. (Exhibit 23).

WC-32A

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Dr. Bobrow was deposed on November 11, 2020, at which time he testified that the accident on August 20, 2012 was the prevailing factor in causing Claimant's left eye injury and need for medical treatment. (Exhibit 23b, Pages 11 and 17). Dr. Bobrow testified that he did not believe Claimant had sustained any additional injuries to the left eye on November 23, 2012, when he fell down the stairs or on November 17, 2015 when he was seen for exposure to bleach fumes. (Exhibit 23b, Pages 14-15). Dr. Bobrow testified that it was his opinion that the charges for medical treatment received by Claimant that were submitted by Mr. Laramore as exhibits at trial were reasonable. (Exhibit 23b, Pages 18-19). The doctor testified that Claimant reached maximum medical improvement for this injury sometime after the secondary corneal transplant that was performed in 2016, likely sometime in 2017 or early 2018. (Exhibit 23b, Page 20). Dr. Bobrow also testified that it would be reasonable for Claimant to be placed on work restrictions through the date that he reached maximum medical improvement. (Exhibit 23b, Page 20-22). Dr. Bobrow opined that the Claimant had sustained 70 % permanent partial disability to the left eye as the result of the August 20, 2012 date of injury. (Exhibit 23b, Page 23).

On March 29, 2017, Claimant filed a civil suit in the Circuit Court of Audrain County, case number 17AU-CC00025. Ex. II. The suit, filed against VAHS and Mr. Ray, alleged that Claimant suffered injury to his eye while working for Mr. Menech on the premises of VAHS. Id. at 2-3. Claimant alleged that on August 20, 2012, he was using a circular saw to cut used lumber when the blade struck a portion of a screw, which was catapulted into Claimant's eye causing severe and permanent injury. Id. at 3. Claimant specifically alleged that VAHS was not his employer at the time of the injury. Id. at 2. Claimant alleged negligence on the part of VAHS and Mr. Ray in allowing a dangerous condition to exist on defendants' premises, failing to warn of the danger posed by use of used lumber, hiring and retaining individuals with limited or no construction experience to oversee construction of the Cornerstone Project, and the use of used lumber in the project. Id. at 3-6. Claimant alleged damages in the form of pain and suffering, permanent damage to his eye, medical and hospital debt in excess of $\ 60,000.00, future medical costs, and lost time and earnings. Id. at 5 .

On January 21, 2018, Claimant filed an amended petition which additionally named Mr. Menech, Kambrin Hartsell, and a John Doe supervisor or co-employee as defendants, alleging negligence by all defendants. Ex. III, 4-13. The amended petition alleged that Mr. Menech was a co-employee of Claimant at the time of the work injury. Id. at 2. In his testimony, Claimant admitted that case number 17AU-CC00025 centered solely on his work injury of August 20, 2012.

On September 24, 2018, Claimant executed a settlement agreement ("Agreement") resolving all claims against all named defendants in suit number 17AU-CC00025. Ex. V, 8. The Agreement released liability as follows:

The undersigned Plaintiff, for the total consideration of Fifty-Three Thousand and 00/100 Dollars ( $\ 53,000.00 ), does hereby ...release, acquit, and forever discharge Defendants and their insurers, and each of their employees, agents...(hereinafter collectively referred to as the "Released Parties"), of and from any and all claims, counterclaims, cross-claims, actions, claims for contribution, claims for indemnification, causes of action, demands, rights, damages, or costs, including but not limited to, any claim(s) based upon or seeking recovery for the Claim, the Lawsuit,

the alleged accident of August 20, 2012, willful and wanton conduct, prima facie tort, negligent and intentional torts, any violation of any...statute, ordinance or administrative regulation, past medical expenses, future medical expenses, past lost income, future lost income, attorney's fees, punitive damages, or compensation of any kind whatsoever, which the Plaintiff now has or which Plaintiff may hereinafter accrue, arising out of any act, event, omission, or occurrence which was done by, or at the direction of any of the Released Parties... and including, but not limited to, any claim arising out of the Claim and for any other claim which was asserted or could have been asserted in a potential lawsuit/cause of action arising from the Claim.

Id. at 2 (emphasis added). The Agreement states that "[n]otwithstanding the above, this Agreement does not apply to Plaintiff's claims involving the Second Injury Fund in Workers Compensation." Id.

With regard to the purpose of the settlement, the Agreement states:

[Claimant] understands and agrees that all of his medical bills and/or healthcare provider bills must be paid by him from the settlement amount mentioned above, and there will be no other or further payment of any medical bills by any of the Released Parties for any of [Claimant]'s past or future medical treatment for any injuries Plaintiff claimed as damages against Defendants in the Lawsuit or could have claimed arising from the Claim. [Claimant] agrees to pay any medical liens, Medicare liens, Medicaid liens and/or Workers' Compensation liens, if any, and/or property damage liens filed against the proceeds of any claim released by this Agreement.

Id. at 5 .

On October 1, 2018, Claimant filed an Acknowledgment and Receipt of Settlement Funds and a Stipulation for Dismissal in case number 17AU-CC00025. Ex. IV. At the final hearing, Claimant testified that he received his settlement funds from this claim, and made personal use of the funds. Claimant testified that he did not use the settlement funds to pay any medical bills and, to his knowledge, no part of the settlement funds were used to pay any medical bills.

The election of remedies doctrine provides that "if there are two or more inconsistent remedies available, the election to pursue the one is a bar to any suit based upon the other." Lewis v. Gilmore, 366 S.W.3d 522, 525 (Mo. banc 2012) (citation omitted). The purpose of the doctrine is to prevent double redress for a single wrong. Stromberg v. Moore, 170 S.W.3d 26, 30 (Mo. App. 2005). "Where a party has a right to pursue one of two inconsistent remedies, makes his election, institutes suit and prosecutes it to final judgment, or receives something of value on the claim, he cannot thereafter pursue another and inconsistent remedy." Alexander v. Link's Landing, Inc., 814 S.W.2d 614, 620 (Mo. App. 1991). In a claim for uninsured medical benefits from the Fund, the Fund has all the same defenses as would the uninsured employer. Section 287.220.7.

Claimant initially filed a workers compensation claim against VAHS, Mr. Menech, and the Second Injury Fund. On August 9, 2016, Judge Zerrer issued an award against Mr. Menech and the Fund. The parties construed this as a final award. On July 19, 2017, the Commission modified the award and issued a temporary award because no physician had placed Claimant at MMI. On March 29, 2017, before issuance of the temporary award, Claimant filed suit in the Audrain County Circuit Court, seeking damages for permanent damage to his eye, lost wages, and medical expenses. Claimant testified that the civil action filed in the circuit court related to the same accident, and the damages he received were from the same injury for which he now seeks workers' compensation benefits. Ex. V, 2. The named defendants were the VAHS and Paul Ray.

Claimant elected to proceed with his civil lawsuit in circuit court. On January 21, 2018, Claimant filed an amended petition adding Mr. Menech as a defendant. Ex. III. On September 24, 2018, Claimant executed a Settlement Agreement and Release of All Claims. Ex. V. On October 1, 2018, Claimant filed a stipulation to dismiss the civil lawsuit and, October 5, 2018, the court entered a dismissal with prejudice. Thereafter, on January 8, 2019, Claimant accepted payment from the Fund for $\ 23,226.27 for past medical expenses.

Missouri courts have addressed the election of remedies doctrine and its relation to workers' compensation claims. In Bailey v. McClelland, 848 S.W.2d 46 (Mo. App. 1993), an employee was killed in a motor vehicle accident while driving a commercial truck. The decedent's wife filed a wrongful death suit against the employer in the circuit court, ending in a judgment in favor of the plaintiffs. 848 S.W.2d at 46-47. The decedent's wife subsequently filed a claim against the Fund, alleging that employer was uninsured at the time of the accident. Id. The claim was denied by the Commission "because claimants elected to proceed in the circuit court to judgment before continuing to prosecute the workers' compensation claim." Id. at 47. The court noted that the Fund has all the same defenses as employer in a claim for medical expenses under $\S 287.220 .7$. The court held that, "[a]s the alleged employer was not insured...under § 287.280, RSMo Supp.1982, appellants could 'elect' to file a workers' compensation claim or could bring suit in the circuit court," and, therefore, the Commission's denial of benefits was affirmed. Id.

In Lewis v. Gilmore, 366 S.W.3d 522 (Mo. banc 2012), Lewis was killed in a motor vehicle accident while riding as a passenger in a truck driven by Gilmore, but owned by Freeman. Freeman, who was uninsured, was operating pursuant to a contract with DOT Transportation ("DOT"), which was insured. Lewis's widow filed a workers' compensation claim against Freeman and DOT, and filed a wrongful death claim against Gilmore and Freeman in circuit court.

The Supreme Court stated that:

When an employer does not carry workers' compensation insurance, the injured employee or his dependents "may elect" one of three options. First, the employee or his dependents may elect to file a civil action against...the employer that fails to carry legally required workers' compensation insurance. Second, the employee or his dependents may elect to "recover under this chapter" and pursue a workers' compensation claim. Third, the employee or his dependents may elect to seek payment from the second injury fund.

Lewis, 366 S.W.3d at 525.The Supreme Court found that Lewis's claim against Freeman and Gilmore was not barred, because she recovered workers' compensation benefits from DOT as the

statutory employer, and then "elected to file a civil suit against Freeman due to his failure to carry workers' compensation insurance." Id. at 526. Because Lewis took different action against each employer, the election of remedies did not apply. Id.

Here, unlike Lewis, Claimant did not take different actions against each employer. Like Bailey, Claimant pursued a workers' compensation claim against both alleged employers and also pursued a civil lawsuit against both alleged employers.

The sequence of events is instructive;

Before the workers' compensation claim was concluded, Claimant elected to pursue a civil action against VAHS and Mr. Menech that resulted in a settlement of $53,000.00. Claimant then demonstrated that his claims were completely resolved by releasing both alleged employers from all liability relating to the August 20, 2012, work injury, including liability for the past and future medical expenses and lost wages. Claimant specifically released all claims he could possibly pursue against the alleged employers.

Therefore, I find that the election of remedies doctrine bars Claimant's workers' compensation claims against both alleged employers.

I also find that the doctrine bars Claimant's claims against the Fund for past and future medical expenses. In a claim for uninsured medical benefits from the Fund, the Fund has all the same defenses as would the uninsured employer. Section 287.220.7. The Settlement Agreement's clause stating that it "does not apply to Plaintiff's claims involving the Second Injury Fund" is not relevant as it does not supersede the Fund's rights under the statute and the Fund was not a party to the agreement. Claimant elected to proceed against both alleged uninsured employers and released his claims against both alleged uninsured employers. Claimant has therefore recovered for his past and future medical treatment. He cannot now demand the Fund pay these expenses again.

Issued by DIVISION OF WORKERS' COMPENSATION

It is concerning that Claimant chose not to notify the Fund of his recovery in the civil suit. Claimant elected to litigate the civil lawsuit to a final conclusion while the workers' compensation claim was pending. With the civil settlement, Claimant elected to resolve all claims including past and future medical treatment. Claimant then chose to keep this information from the Fund and three months after the civil settlement accepted payment of $23,226.27 for past medical expenses from the Fund.

Claimant's continued pursuit of workers' compensation benefits from both alleged employers and the Fund for medical expenses already compensated under the civil action would constitute a windfall. The purpose of the doctrine of election of remedies is to prevent such a double recovery. Because Claimant elected his remedy by pursuing a civil action to its conclusion and executing an Agreement releasing all claims relating to the work injury of August 20, 2012, Claimant's claim for uninsured medical benefits is barred by the doctrine of election of remedies.

Reimbursement to the Fund

Pursuant to Section 287.220.7, "[a]ny funds received by the employee... through civil or other action, must go towards reimbursement of the second injury fund, for all payments made to the employee... from the second injury fund pursuant to this subsection." Claimant filed a claim against the Fund for payment of uninsured medical expenses. In its temporary award of July 19, 2017, the Commission found that Claimant's employer, Mr. Menech, was required to insure or self-insure, but failed to do so. Ex. I-A, 12. The Commission therefore ordered that the Fund pay $23,226.27 to cover Claimant's outstanding medical expenses. Cindy Struemph, Manager of the Second Injury Fund Unit, issued payment on January 8, 2019. Ex. I, 2.

Claimant testified that he received these funds, though he did not apply them towards any outstanding medical debt. Claimant executed a settlement agreement on September 24, 2018, which provided for payment of $53,000.00 to resolve all claims relating to the injury that occurred on August 20, 2012. Ex. V. Pursuant to the terms of the settlement, all of Claimant's medical bills were to be paid by him from the settlement funds. Id. at 5.

The Fund is entitled to reimbursement for its payment of $23,226.27, paid pursuant to the Commission's temporary award. Claimant received more than $23,226.27 from his settlement of the civil action relating to the work injury. Pursuant to Section 287.220.7, I find that Claimant must reimburse the Fund for its payment of $23,226.27 in past medical expenses.

Employment Status

The findings of fact and rulings of law set forth above resolve most of the remaining issues. To complete the record, I will enter additional findings and conclusions based on the evidence submitted at the hearing and the record in this case.

To establish an employer-employee relationship, a claimant must demonstrate that "he worked in the service of the alleged employer and the employer controlled the services." Hayes v. Ginger C, LLC, 582 S.W.3d 140, 148 (Mo. App. 2019) citing Chouteau v. Netco Constr., 132 S.W.3d 328, 332 (Mo. App. 2004).

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"An independent contractor is 'one who contracts to perform work according to his own methods without being subject to the control of his employer except as to the result of his work.'" *State ex rel. MW Builders, Inc. v. Midkiff*, 222 S.W.3d 267, 270 (Mo. banc 2007); quoting *Horner v. Hammons*, 916 S.W.2d 810, 816 (Mo. App. 1996).

Key to the determination of whether a workers' compensation claimant is an employee or an independent contractor is the amount of control exercised by the alleged employer. *Id.* at 148; citing *DiMaggio v. Johnston Audio/D & M Sound*, 19 S.W.3d 185, 188 (Mo. App. 2000). This includes 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." *DiMaggio*, 19 S.W.3d 185, 188.

The undisputed evidence demonstrates that Claimant was the employee of Mr. Menech pursuant to section 287.030. The Vandalia Area Historical Society was not the employer of Claimant. The undisputed evidence indicates that Mr. Menech controlled the day-to-day aspects of Claimant's work. Although the checks for Claimant's pay were deducted from an account of the VAHS, the evidence is undisputed that the payments were under the control of Mr. Menech. Moreover, evidence was adduced that Claimant was indeed paid directly by Mr. Menech for work performed during the time period of his injury (Claimant's Exhibit 19a). Construction or "handyman" services was Mr. Menech's normal business, which he provided to anyone who would request his services. Based upon these facts, Mr. Menech was Claimant's employer pursuant to section 287.030 on August 20, 2012.

In addition, Missouri courts have held that with a sufficient amount of control over the actions of the employee, an employer-employee relationship for the purposes of workers' compensation liability can exist even in the absence of any obligation to pay. *Fielder v. Production Credit Ass'n*, 429 S.W.2d 307, 315 (Mo. App. 1968); *Busby v. D.C. Cycle Ltd.*, 292 S.W.3d 546 (Mo. App. 2009); *Talir v. Mid-West Area Agency of Aging*, 848 S.W.2d 517 (Mo. App. 1993) (even an unpaid volunteer may qualify as an employee for purposes of worker's compensation liability with a sufficient amount of control).

There is no question that Mr. Menech controlled the actions of Claimant. Claimant's hours were set by Mr. Menech, and the instrumentalities of his work, and the day to day details of his work were controlled by Mr. Menech. Mr. Menech had the authority to hire and fire Claimant and the other employees on the job site. Laurie Shaw and Carl Morningstar, who both worked with Claimant at the time of his injury, credibly testified that Mr. Menech controlled the hours, details, instrumentalities and amount of pay for the work performed, and hired and fired the employees of the worksite. Based on the facts adduced at hearing, Mr. Menech, not the VAHS, was Claimant's employer under section 287.030.

All parties except Mr. Menech stipulated to an average weekly wage of 571.70 and a compensation rate of 381.13 for temporary total and permanent partial disability. Mr. Menech, however, did not present any evidence at the hearing to dispute these numbers. Therefore, I find that these numbers are correct.

The VAHS requests an award of attorney fees and costs for the unreasonable prosecution of this claim against the VAHS. The VAHS points to the facts pled in Claimant's petition and amended petition that the VAHS was not the Claimant's employer on August 20, 2012. The VAHS argues that, in addition to repeatedly pleading to the Circuit Court of Audrain County that a negligence claim was appropriate because the VAHS was not Claimant's employer, the deposition testimony and witness testimony from the hardship earing in 2016 also established that none of the parties involved actually believed that the VAHS was Claimant's employer.

Section 287.560 states, in part that "if the division or the commission determines that any proceedings have been brought, prosecuted or defended without reasonable ground, it may assess the whole cost of the proceedings upon the party who so brought, prosecuted or defended them." An award of attorney's fees and costs is only warranted if the offense is "egregious" and where the issue is "clear." Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 250 (Mo. banc 2003); Wilson v. C.C. Southern, Inc., 140 S.W.3d 115, 120 (Mo. App. 2004).

Claimant argues that he was justified in continuing to prosecute his claim because the LIRC's July 19, 2017 temporary award stated that the evidence as to Claimant's employment status with regard to the VAHS or Mr. Menech was not adequately addressed in the ALJ's opinion. After the temporary award, however, Claimant filed an amended petition in his civil lawsuit reiterating his allegation that the VAHS was not his employer. He thereafter litigated the civil case to a final conclusion, executing a Settlement Agreement and Release of All Claims on September 24, 2018.

While this is a close question, I decline to award the VAHS attorney's fees and costs. I give Claimant the benefit of the doubt. Faced with two potential employers, both uninsured, Claimant understandably was reluctant to dismiss one potential employer. Perhaps this was overly cautious under the circumstances of this case but I decline to find it was sufficiently egregious to support an award of fees and costs.

Claimant is hereby ordered to reimburse the Second Injury Fund in the amount of $\ 23,226.27 referable to past medical treatment and expenses. All other claims are barred by the doctrine of election of remedies.

The VAHS's request for attorney's fees and costs is hereby denied.