Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION FINAL AWARD … · 2019. 10. 3. · We...

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

Employee:

Employer:

Insurer:

Additional Party:

FINAL AWARD ALLOWING COMPENSATION (Modifying Award and Decision of Administrative Law Judge)

Injury No.: 09-111744 Claudio Lopez

Taylor Roofing AMS Staff Leasing

Freestone Insurance Company in Liquidation

Treasurer of Missouri as Custodian of Second Injury Fund

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

Preliminaries The parties asked the administrative law judge to determine the following issues: (1) whether employee was an employee of AMS Staff Leasing; (2) whether employer is obligated to pay for past medical expenses in the amount of $122,923.08; (3) whether employee requires future medical care; (4) the proper compensation rate; (5) temporary total disability from August 1, 2009, through July 31, 201 O; (6) the nature and extent of any permanent disabilities; (7) disfigurement; (8) the liability of the Second Injury Fund; and (9) attorney fees.

The administrative law judge determined as follows: (1) employee was not an employee of AMS Staff Leasing; (2) Taylor Roofing is obligated to pay for past medical expenses in the amount of $1,033.20; (3) employee's claim for future medical care is denied; (4) the proper compensation rate is $520.00 for temporary total disability and $422.97 for permanent partial disability; (5) temporary total disability is allowed from August 1, 2009, through January 26, 2010, in the amount of $13,297.14; (6) employee is awarded $84,329.64 for permanent partial disability; (7) employee is awarded 1 O weeks for disfigurement in the amount of $4,229.70; (8) the Second Injury Fund is liable for past medical expenses in the amount of $1,033.20; and (9) the claim for attorney fees is denied.

Employee filed a timely application for review with the Commission alleging the administrative law judge erred in failing to award past medical expenses in the amount of $122,923.08 and failing to award future medical benefits.

For the reasons stated below, we modify the award and decision of the administrative law judge referable to the issues of past medical expenses and future medical.

Discussion Past Medical Section 287.220.5,1 RSMo, provided, in pertinent part, the Second Injury Fund's liability for medical expenses:

1 The presentMday 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:

10. 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.


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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 lifethreatening 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:

(1) a claim for compensation must have been filed within the time frame of the statute of limitation; (2) the claim for compensation must have been settled; and (3) 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.


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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.

rs!. Given at Jefferson City, State of Missouri, this 3 day of October 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

DISSENTING OPI ION FILED Reid K. Forrester, Member

Attest:

v~~ Secretary


DISSENTING IN PART

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I agree with the Commission majority that the decision of the administrative law judge should be modified as to the issue of past medical.

However, I agree with the administrative law judge and do not believe that the award of future medical benefits is necessary. Any conclusion that employee will need future medical treatment to cure and relieve the effects of the injury is speculative at best.

Based on the facts of this case, I do not find Dr. David Volarich's opinion persuasive regarding the need for future medical care. Dr. Volarich examined employee on September 24, 2012, and opined that:

In order to maintain his current state, he will require ongoing care for his pain syndrome using modalities including[,] but not limited to narcotics and nonnarcotic medications (NSAID's), muscle relaxants, physical therapy, and similar treatments as directed by the current standard of medical practice for symptomatic relief of his complaints.

Tr., pp. 518-19. Dr. Volarich further stated that employee "is advised to follow up with his personal physician for any additional medical care required in the future." Tr., p. 519

However, as of the Final Hearing on October 5, 2017, employee agreed that he had not sought medical care since January 26, 2010. Employee did not indicate that he had been to physical therapy or taken any pain medications since January 26, 2010 to cure or relieve the effects of the injury. Therefore, Dr. Volarich's opinion of the need for future medical care was speculation, erring on the side of precaution "as directed by the current standard of medical practice for symptomatic relief[.]" The reality is that employee has not needed narcotic or other medication. He has not needed physical therapy. He has not needed other treatment to cure and relieve the effects of the injury. I find that employee does not need future medical treatment.

Therefore, I find that an award of future medical benefits is not necessary. Because the Commission majority has decided otherwise, I respectfully dissent on the issue of future medical benefits.

Employee:

Dependents:

Employer:

Claudio Lopez

N/A


AWARD

Additional Party: Second Injury Fund

Insurer: Freestone Insurance Company in Liquidation

Hearing Date: October 5, 2017

Injury No. 09-111744

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Checked by:

FINDINGS OF FACT AND RULINGS OF LAW

I. Are any benefits awarded herein? YES

2. Was the injury compensable under Chapter 287? YES

3. Was there an accident under the Law? YES

4. Date of accident: July 31, 2009

5. Location where accident occurred: WEBB CITY, JASPER COUNTY, MISSOURl

6. Was above employee in employ of above employer at time of alleged accident? YES

7. Did employer receive proper notice? YES

8. Did accident 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? NO

11. Describe work employee was doing and how accident occurred: EMPLOYEE SUSTAINED INJURIES TO HIS PELVIS, RlGHT HAND AND RIGHT WRIST WHEN HE FELL OFF OF A ROOF.

12. Did accident cause death? NO

13. Parts of body injured by accident: PELVIS, RIGHT HAND, AND RIGHT WRIST.

14. Nature and extent of any permanent disability: PERMANENT PARTIAL DISABILITY.

15. Compensation paid to-date for temporary disability: NONE.

16. Value of necessary medical aid paid to date by employer/insurer? NONE.

17. Value necessary medical aid not furnished by employer/insurer? s;J,033.20

l 8. Employee's average v,:eekly wage: $780.00.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Claudio Lopez Injury No.

19. Employee's weekly compensation rate: $520.00 TTD and $422.97 for PPD.

20. Method of wage computation: by agreement.

COMPENSATION PAYABLE

21. Amount of compensation payable:

22.

Unpaid medical expenses:

Permanent Partial Disability:

30% of the body as a whole (pelvis) (.30 x 400 = 120 weeks x $422.97)

35% of the right wrist (.35 x 175 = 61.25 weeks x $422.97)

I 0% loading factor (18.13 weeks x $422.97)

Total PPD

Temporary Total Disability:

(From 8-1-09 through 1-26-10)

Disfigurement:

10 weeks assessed

TOTAL BENEFITS AW ARD ED

Second Injury Fund liability: $1,033.20

$ 1,033.20

$50,756.40

$25,906.91

$ 7,666.33

$84,329.64

$13,297.14

$ 4.229.70

$102,889.68

09-111744

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to Mr. Cabrera shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following firm for necessary legal services rendered to Mr. Cabrera: The Newman Law Firm, LLC.

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Issued by DIVISION OF WORKERS' COMP EN SA TION

Employee: Claudio Lopez Injury No. 09-111744

FINDINGS OF FACT and RULINGS OF LAW:

Employee:

Dependents:

Employer:

Claudio Lopez

N/A


Additional Party: Second Injury Fund

Insurer: Freestone Insurance Company in Liquidation

Hearing Date: October 5, 2017

AWARD

Injury No. 09-ll l 744

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

On October 5, 2017, the Claimant, Claudio Cabrera Lopez, appeared in person with his attorney, Jennifer Newman, for a Final Hearing. Taylor Roofing owned by Richard Scott Taylor was represented at the Hearing by attorney, Greg Carter. AMS Staff Leasing and Freestone Insurance Company in Liquidation were represented by Steven R. Sharp. The Second Injury Fw1d participated in the Hearing and was represented by attorney Kristie Pierce. At the time of the Hearing, the parties agreed on certain Undisputed Facts and have identified Issues in Dispute. These Undisputed Facts and Issues in Dispute, together with the Findings of Fact and Rulings of Law, are set forth below as follows:

UNDISPUTED FACTS/STIPULATIONS OF THE PARTIES

I. On July 31, 2009, Taylor Roofing, owned by Richard Scott Taylor and AMS Staff Leasing were employers operating subject to the Missouri Workers' Compensation Law. AMS Staff Leasing was insured by Freestone Insurance Company in Liquidation at the time of injury.

2. On July 31, 2009, Claimant Lopez was a statutory employee of Taylor Roofing.

3. Claimant Lopez was working subject to Missouri Workers' Compensation Law.

4. On July 31, 2009, Claimant Lopez sustained an accident that arose out of and in the course of his employment.

5. The injury of Claimant Lopez on July 31, 2009, took place in Jasper County, Missouri.

6. The Claimant's contract of employment was made in Missouri.

7. The employer had notice of Claimant Lopez's July 31, 2009, injury.

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8. The claim of Claimant Lopez was filed within the time allowed by law.

9. No benefits, either medical or TTD, have been paid to date on this claim.

10. The accident on July 31, 2009, caused the Claimant's injuries and disability for which benefits are sought.

ISSUES IN DISPUTE

The parties have identified the following as issues in dispute:

1. Whether Claimant Lopez is an employee of AMS Staff Leasing.

2. Whether Claimant Lopez is entitled to an award of the full billed amount of past medical expenses $122,923.08 or only the actual amounts owing/

3. Whether Claimant Lopez is entitled to an award of open future medical for his injuries of July 31, 2009.

4. What is the Claimant's compensation rate?

5. What is the TTD owed to Claimant Lopez? Claimant Lopez is claiming TTD benefits for a total of52 weeks from August 1, 2009, through July 31, 2010.

6. What is the nature and extent of permanent partial disability to be awarded Claimant Lopez?

7. What is tl1e liability of the Second Injury Fund for past and future medical expense If employer Taylor Roofing is found to be uninsured?

8. What disfigurement is to be awarded Claimant Lopez as a result of the July 31, 2009, injury?

9. Whether attorney Carter should be awarded attorney's fees and costs to be paid by AMS Staff Leasing and Freestone Insurance in Liquidation.

DISMISSALS

At the time of the Hearing, attorney Newman on behalf of Claimant Lopez dismissed a number of alleged employers that had been added to the case in the Amended Claim for Compensation. The dismissed employers included CBCS .. Jeff Han1mons, Dallas National Insurance as an employer, Raul Alberto Frias, Highpoint Risk Services, Inc., and Harbor America Brokerage. LTD. Taylor Roofing, Inc. out of Iowa was dismissed as m1 employer prior to the Hearing. Also dismissed at the Hearing was United Fire and Casualty Cornpm1y, the insurer for

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Taylor Roofing, Inc. out of Iowa on July 31, 2009. At the time of the Hearing, attorney Newman dismissed Injury Number 09-070431, a companion claim for the same date of injury of July 31, 2009.

EXHIBITS

The following exhibits were offered and admitted into evidence on behalf of Claimant Lopez:

Exhibit 1: Medical records for Claimant's July 31, 2009, injury.

Exhibit 2: The deposition of Dr. David Volarich, including his CV, report and medical expenses for Claimant Lopez.

Exhibit 3:

Exhibit 4:

Exhibit 5:

Certified notice letter sent to Mr. Aldo Dominguez.

Medical bills sent directly to Claimant Lopez.

Claimant paid out-of-pocket medical expenses.

The following exhibits were offered and admitted into evidence by AMS Staff Leasing:

AMS Staff Exhibit A: Medicaid lien

AMS Staff Exhibit B: The Newton County Ambulance bill

AMS Staff Exhibit C: University of Missouri Healthcare bills

AMS Staff Exhibit D: Order of Liquidation for Freestone Insurance

AMS Staff Exhibit E: Staff Leasing Agreement with Initial List of Leased Employees

AMS Staff Exhibit F: AMS Applications for Employment

AMS Staff Exhibit G: AMS payroll records

AMS Staff Exhibit H: Claimant Lopez's deposition

The following exhibits were offered and admitted into evidence by Taylor Roofing:

Taylor Roofing Exhibit A: A Certificate of Liability insurance

Taylor Roofing Exhibit B: Correspondence dated April 10, 2012, directed to attorney Greg Carter from Heidi Papenthien ofCBCS Claims

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Taylor Roofing Exhibit C: A letter directed to attorney Greg Carter dated April 18, 2012, 'Nritten by Heidi Papenthien of CBCS Claims

Taylor Roofing Exhibit D: Attorney fees of attorney Carter in connection with his representation of Taylor Roofing/Scott Taylor

The Court marked and admitted the following exhibit post trial on October 10, 2017.

Court Exhibit 1 Email copy of Notice of Hearing to Missouri HealthNet received from Linda S. Schroer

FINDINGS OF FACT TESTIMONY OF CLAUDIO LOPEZ

Claimant Claudio Cabrera Lopez did testify at the Hearing. An interpreter was present as Mr. Lopez was born in Guatemala and he indicated he is not able to read or speak English.

Mr. Lopez, hereafter referred to as "Claimant" testified he was born on June 22, 1971, in Guatemala. He first came to the United States in 1997.

The Claimant testified he was injured on July 31, 2009, while working on a Taylor Roofing job site in Webb City, Missouri. A gentleman by the name of Raul Alberto Frias offered him work. The Claimant testified that Taylor Roofing was located in Joplin, Missouri and the owner was named Scott.

Claimant testified his injury on July 31, 2009, occurred around 11:00 a.m. to noon. He was working on roofing at a home on a Taylor Roofing project. He fell from a roof. He injured his right wrist and pelvis. Claimant testified he had no problems to those parts of the body prior to July 31, 2009. Claimant testified that Alberto Frias drove him from the job site to St. John's Medical Center in Joplin, Missouri. He was then taken by ambulance to the University Hospital in Columbia, Missouri.

Claimant testified he was diagnosed with fractures of the right wrist and pelvis. Claimant did undergo a single surgery to the right wrist and pelvis both on August 4, 2009. Claimant testified he was hospitalized for several days at the University Hospital in Columbia, Missouri. Claimant testified he still has hardware in place in both the wrist and the pelvis due to those surgeries.

Claimant testified he was unable to u11dergo physical therapy in 2009 as recommended by the doctors because of insurance issues.

Claimant testified he earned $130.00 a day and worked six days a week from Monday to Saturday. Claima11t testified he was paid in cash. Claimant had no receipts for the wages be was paid.

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Claimant testified he was off work for one year following the July 31, 2009, accident. Claimant remained off work until the end of July of 20 I 0. Claimant testified he did not work because he still suffered from pain and had lack of strength. Claimant testified he received no compensation while he was off work.

Claimant testified he had been mailed copies of medical bills in 2009 and 20 IO from his medical providers. He further reported he had paid medical bills of $125.00 out of pocket (Exhibit 5).

Claimant did not continue to work with Taylor Roofing after his injury. Following his injury, Claimant testified he no longer worked in roofing. Claimant has worked since 2010 in carpentry.

Claimant testified he continues to have problems with his right wrist. Claimant reported some ongoing pain and discomfort in both cold and hot weather. Claimant further testified he has difficulty lifting heavy objects.

Claimant testified he has ongoing pain in his pelvis. Claimant reported he has difficulty walking for long distances or working for long periods of time because of his injury. Claimant reported that he does work but experiences discomfort. Claimant testified he no longer plays soccer as he did prior to the accident.

The Administrative Law Judge viewed Claimant's scarring on his wrist and assessed I 0 weeks of disfigurement.

On cross-examination, Mr. Lopez testified he had no written evidence as to whom his employer was on July 31, 2009. He agreed he was always paid in cash by Alberto Frias when he was working on or around July 31, 2009.

Claimant agreed he had never heard of a company by the name of AMS Staff Leasing. He agreed with his prior deposition testimony that to his knowledge, AMS Staff Leasing had not hired him or employed him on July 31, 2009.

Claimant Lopez agreed he had never completed or signed an Employment Application for AMS Staff Leasing at any time in 2009. He had never received a paycheck or wages from AMS Staff Leasing. He had never received a W2 or any tax documents from AMS Staff Leasing.

Claimant agreed he had one surgery to his pelvic area and one surgery to his right hand following his July 31, 2009, injury. Claimant admitted he was released from medical treatment for his July 31, 2009, injury on January 26, 2010. Claimant had no medical treatment for the July 31, 2009 injury after January 26, 2010. Claimant agreed he was not given any permanent work restrictions by his doctors. Claimant agreed he was not currently taking any pain medication relating to the July 31, 2009 .. injury, including over-the-counter medication. Claimant agreed that he previously testified in his deposition that everything was fine with regard to his right wrist and

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hand. Claimant agreed he had previously testified in his deposition that he was experiencing no pain relating to the July 31, 2009, pelvic injury.

Claimant agreed he had not received any letters requesting payment of medical bills for several years. He was not sure if Medicaid had paid for medical bills relating to his injury.

TESTIMONY OF JENNIFER HAUGER

Ms. Jennifer Hauger appeared and testified on behalf of AMS Staff Leasing and Freestone Insurance in Liquidation. Ms. Hauger testified that she is currently employed at Highpoint Administration. She was previously employed with AMS Staff Leasing and was designated as the custodian of records for AMS Staff Leasing, a prior client of Highpoint Administration.

Claimant testified she was no longer employed with AMS Staff Leasing as AMS Staff Leasing is no longer in business. She testified to her knowledge there were no remaining assets held by AMS Staff Leasing.

Claimant Hauger testified that Freestone Insurance Company was fom1erly known as Dallas National Insurance Company. Ms. Hauger testified that Freestone/Dallas National was foe workers' compensation carrier for AMS Staff Leasing on July 31, 2009. She testified that Freestone Insurance Company had been placed in liquidation in 2013 or 2014.

Ms. Hauger testified that AMS Staff Leasing did have a business relationship with Taylor Roofing of Joplin, Missouri on July 31, 2009. Ms. Hauger, as custodian of records for AMS Staff Leasing, identified the Staff Leasing Agreement, which was marked and admitted into evidence as AMS Staff Exhibit E. Ms. Hauger testified under the terms of the Staff Leasing Agreement, Taylor Roofing of Joplin, Missouri could lease employees through AMS Staff Leasing. Taylor Roofing continued to direct day to day employment activities. AMS Staff Leasing performed the administrative role of providing payroll, taxes, unemployment, and workers' compensation benefits to their leased employees. She testified that under Section 4B of the Staff Leasing Agreement, Taylor Roofing of Joplin, Missouri was required to take steps in order to make an employee oft.l1eirs a leased employee of AMS Staff Leasing.

Ms. Hauger testified under Section 4B of the Staff Leasing Agreement, Taylor Roofing of Joplin, Missouri was required to take action to make an employee of theirs a leased employee of AMS Staff Leasing (AMS Staff Exhibit E). Ms. Hauger testified a11 Application for Employment had to be on file with AMS Staff Leasing for each individual to be considered a leased employee. Further, Taylor Roofing of Joplin, Missouri was to submit payroll to AMS Staff Leasing for processing for each leased employee. !vis. Hauger testified if both those steps had been taken, the injured Claimant would be considered w1der workers' compensation the employee of AMS Staff Leasing.

M_s. Hauger testified Taylor Roofing of Joplin, M.issouri never took any of the steps required under the terms of the Staff Leasing Agreement to make Mr. Lopez a leased employee

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of AMS Staff Leasing. All Applications for Employment from Taylor Roofing submitted to AMS Staff Leasing were marked and admitted into evidence as AMS Staff Exhibit F. Ms. Hauger testified there was no Application for Employment on file at AMS Staff Leasing for Mr. Lopez.

A copy of the payroll records that listed all financial transactions handled by AMS Staff Leasing on behalf of employees of Taylor Roofing of Joplin, Missouri was marked and admitted into evidence as AMS Staff Leasing Exhibit G. Ms. Hauger testified that AMS Staff Leasing never handled any payroll checks or financial transactions on behalf of Claudio Lopez.

Ms. Hauger further testified that AMS never paid taxes or issued any tax documents for Mr. Lopez. Ms. Hauger testified that AMS never directed the Claimant's work activities on or around July 31, 2009. She testified that any payroll checks issued on behalf of a Taylor Roofing employee would have indicated the check was being issued by AMS Staff Leasing. Ms. Hauger further testified that AMS Staff Leasing never paid any leased employee in cash.

On cross-examination, witness Hauger was questioned regarding Taylor Roofing Exhibit A, the Certificate of Insurance produced relating to a specific job performed by Taylor Roofing for the City of Neosho. Witness Hauger stated that the Certificate oflnsurance presented showed that workers' compensation insurance existed for AMS leased employees working on that project for Taylor Roofing. Ms. Hauger testified no additional Certificates of Insurance were available at the Hearing in particular the Certificate of Insurance for the job at which Claimant was injured.

On cross examination, Ms. Hauger testified the Freestone Insurance policy in effect on July 31, 2009, was not available.

Ms. Hauger was questioned with regard to the AMS Staff Leasing Agreement marked as AMS Exhibit F. Ms. Hauger was questioned regarding the meaning of the phrase "dual employment" in the last sentence of provision 4A of the Staff Leasing Agreement, which she could not define. Ms. Hauger agreed that the Staff Leasing Agreement was drafted by AMS Staff Leasing.

TESTIMONY OF CLAIMANT LOPEZ BY DEPOSITION AMS STAFF LEASING -EXHIBITH

Claudio Cabrera Lopez testified by deposition on September 26, 2012, (P. l). Claimant testified on July 31, 2009, he was working for Alberto on a project for Taylor Roofing when he sustained his i11jury (P.8). Claimant fi.uiher testified that Alberto worked for Taylor Roofing and he worked with Albe1io (P.29).

Claimant Lopez testified he was never hired by AMS Staff Leasing (P.27). He never received a paycheck or earnings from AMS Staff Leasing (P.27). Claimant testified he was paid in cash by Albe1io (P.27). Claimant testified that Taylor Roofing paid cash to Albe1io and then Albe1io paid him in cash (P.29).

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Claimant Lopez testified he was taking no prescription or over-the-counter medication as a result of his July 31, 2009, injury at the time of his deposition testimony (P.17-18). Claimant denied he was having health problems to his right wrist or right hip area as a result of his July 31, 2009, incident (P.18) Claimant denied pain or physical limitations with the use of his right wrist stating "everything is fine." (P.19). Claimant denied pain in the right wrist and stated he "can use it well." (P.20)

Claimant testified he was not experiencing any pain relating to his pelvic injury sustained on July 31, 2009 (P.22). Claimant was asked whether he had limited range of motion or whether he limited his walking or climbing as a result of his July 31, 2009, injury (P.22). Claimant responded by testifying his condition at the time of the deposition was the same as he was before the July 31, 2009, injury (P.22).

Claimant Lopez testified at his deposition on September 12, 2012, that he did not feel he needed additional medical treatment for his July 31, 2009, injuries to his right wrist and right pelvis because he felt fine (P.35). He testified he did not feel that he needed to go to physical therapy (P.36).

Claimant Lopez testified at his deposition on September 12, 2012, that he had not received phone calls from medical providers asking him to pay for his treatment (P.37). He was not aware whether any part of his July 31, 2009, medical bills had been reduced or forgiven (P.37). He had no idea the amount of outstanding medical bills still owed to hls healthcare providers on the date of his deposition (P.37).

TESTIMONY OF DR. DAVID VO LARI CH BY DEPOSITION - EXHIBIT 2

Dr. David Volarich MD examined Claimant at the request of his attorney on September 24, 2012, (P.7). Dr. Volarich's deposition was taken on April 18, 2014 and admitted into evidence as Exhibit 2 (P.3).

Dr. Volarich testified employee Lopez was injured on July 31, 2009, when he fell off the edge of a roof and landed on the ground (P. I 0). Claimant injured his right wrist and hip areas (P.10). Claimant was diagnosed with pelvic fractures and also a right wrist fracture (P.11). Claimant did undergo a single open reduction/internal fixation surgery of the pelvic fractures as well as a single open reduction/internal fixation surgery of the right wrist fracture (P.12). Claimant was released from medical treatment following his last examination on January 26, 2010, (P.13).

When asked to detail the Claimant's complaints stemming from the injury of July 31, 2009, Dr. \Iola.rich testified that Claimant did "really pretty well" (P.14). Dr. Volarich testified Claimant reported "little difficulties" from the July 31, 2009, injury (P.15). Claimant reported to Dr. Volarich he had no pain in the pelvis, hips, or right wrist and had good range of motion and strength (P.l 5).

10



Dr. Volarich repo1ied that Claimant told him he continued to play soccer with his friends but acted as the goalie (P.15).

Dr. Volarich testified that Claimant reported that his right wrist had good strength and range of motion and was not painful (P.15). Claimant was working as a carpenter (P.15).

Dr. Volarich testified he found range of motion of the right hip minimally restricted (P.19). Claimant was able to toe walk, heel walk and tandem walk as well as stand on either leg without difficulty (P .17). Claimant was able to squat fully and stand back upright to an erect position without difficulty (P.17). All lower extremity strength at the hip girdles through the calves was normal and strong at 5/5 (P.17).

On exam, Dr. Volarich noted that Claimant had a 10% loss in strength with pronation and supination resistance at the right forearm (P.17). Dr. Volarich testified to some decreased range of motion with normal sensation at the level of the right wrist (P.18).

Dr. Volarich diagnosed pelvic fractures and a right wrist fracture as a result of the July 31, 2009, injury (P.20). Dr. Volarich testified Claimant was at Maximum Medical Improvement and provided permanent partial disability ratings of 30% to the body as a whole rated at the pelvis and 35% of the right wrist arising from the July 31, 2009, injwy (P.21).

Dr. Volarich opined that Claimant would require future, occasional non-steroidal medications for his pain syndrome, possibly muscle relaxants at times or courses of physical therapy (P.21). Dr. Volarich acknowledged Claimant's only medication at the time of his examination was calcium (P.22).

On cross-examination, Dr. Volarich agreed that the Claimant had provided him limited complaints stemming from the July 31, 2009, injury (P.26). Dr. Volarich testified that Claimant's outcome from the injury had been excellent. (P.27).

Dr. Volarich testified the vast majority of his workers' compensation practice is on behalf of the Claimant (P.30).

Dr. Volarich agreed that Claimant received no medical treatment for the July 31, 2009, injwy after January 26, 2010, (P.32). He agreed that Claimant was released on Januaiy 26, 2010, to work without restrictions (P.33). Dr. Volai·ich testified he assigned no permanent work restrictions to Claimant Lopez (P .33 ). Dr. Volarich agreed that as of September of 2012, he would not disagree with Claimai1t' s deposition testimony that additional medical treatment for the work injury was not required (P.36).

SUMMARY OF EXHIBITS MEDICAL RECORDS SUBMITTED BY CLAIMANT- EXHIBIT 1

Claimant's medical records were admitted into evidence as Exhibit I. following the injury, Claimant was initially taken to St. John's Regional lv!edical Center in Joplin, Missouri on

11



July 31, 2009. A history of injury was noted. Claimant was diagnosed with pelvic fractures and a right wrist fracture.

Due to the nature of the injuries, Claimant was transported by Newton County Ambulance to the University of Missouri Medical Center in Columbia, Missouri for further medical treatment.

Claimant was hospitalized at the University of Missouri Medical Center on July 31, 2009, with right pelvis and wrist fractures. On August 4, 2009, the Claimant did undergo open reduction internal fixation procedures as a result of the right pelvic and right wrist fractures. Claimant was later discharged from the University Hospital subsequent to. the surgical procedures.

Claimant had follow-up care with the MU Healthcare Orthopaedic Clinic. Claimant had follow-up appointments on August 21, 2009, September 15, 2009, October 27, 2009, and finally on January 26, 2010.

At the time of Claimant's last examination on January 26, 2010, Claimant was quoted as indicating he had no complaints of pain. Examination of the right upper extremity indicated Claimant had normal 5/5 grip strength. Examination of the right lower extremity revealed full range of motion of the right hip with no pain and nom1al 5/5 strength wit.'1 flexion of the hip. Claimant was said to be doing very well and released to activities with no particular restrictions. X-rays showed healing of the right hip, pelvis and right wrist.

MEDICAL BILLS/EXPENSES SUBMITTED AS PART OF TESTIMONY OF DR. DA YID VO LARI CH - EXHIBIT 2

Claimant submitted uncertified copies of medical bills that were incurred as a result of his July 31, 2009, injUiy and these bills were offered into evidence as part of Claimant's Exhibit 2 subject to hearsay objections by both Second Injury Fund and AMS. The medical bills marked Deposition Exhibit C contained in Claimant's Exhibit 2 showed initial billed amounts from Newton County Ambulance for $2,549.88, St. John's Medical Center for $10,686.95, the University of Missouri Healthcare for $90,415.67, University of Missouri Physicians for $17,997.75, and Walmart Pharmacy for $1,272.83. The full an10unt of medical charges totaled $122,923.08.

Dr. Volarich testified over objections at his deposition these medical charges were reasonable, customary and necessary to cure and relieve Claimant's July 31, 2009, injuries (P.23). Dr. Volarich, however. agreed on cross-examination, he had no idea to what extent the medical bills were outstanding, had been reduced or written off by the healthcare providers (P.38).

CERTIFIED NOTICE SENT TO MR. ALDO DOMINGUEZ- EXHIBIT 3

12



Claimant introduced into evidence a cetiified letter dated September 6, 2017 from attorney Newman to attorney Aldo Dominguez, Claimant's former attorney, notifying him of the October 5, 2017 Final Hearing. Mr. Dominguez had previously asserted an attorney's lien. Mr. Dominguez did not appear at the October 5, 2017 Final Hearing.

COPIES OF MEDICAL BILLS SENT DIRECTLY TO CLAIMANT - EXHIBIT 4

Claimant admitted into evidence copies of medical bills that had been sent directly to him by healthcare providers as Exhibit 4. The Exhibit contains copies of medical bills for services beginning on July 31, 2009, through October 27, 2009, from University of Missouri Healthcare, St. John's Regional Medical Center Department of Radiology, and University Physicians. The statement date of all bills submitted in the Exhibit date back to from August 20, 2009, to most recently on January 12, 2010. The bill from St. John's Regional Medical Center Department of Radiology shows an outstanding balance of$620.95 for x-rays performed on July 31, 2009.

COPIES OF OUT OF POCKET MEDICAL EXPENSES OF CLAIMANT - EXHIBIT 5

Claimant introduced into evidence a statement of out of pocket expenses paid by the Claimant as Exhibit 5. The handwritten document listed Claimant's out of pocket expenses as University of Missouri Healthcare for $75.00, Walmart Pharmacy of $1,272.83, and University Physicians of$50.00. This Exhibit contained no additional supporting documentation.

MEDICAID LIEN - AMS EXHIBIT A

Alleged employer AMS admitted the Medicaid lien into evidence as AMS Exhibit A. That Exhibit indicated Medicaid covered medical bills of $21,795.53 connected to Claimant's July 31, 2009, injury (P.l). Medicaid paid $2.067.51 in medical expenses to St. John's Regional Medical Center for a July 31, 2009, date of service (P.3). Medicaid paid $16,515.49 in medical expenses to the University of Missouri covering dates of service from July 31, 2009 (P.4). Medicaid paid $2,195.24 in medical expenses to University Physicians beginning July 31, 2009, (P.5). Finally, Medicaid paid $1,017.29 in medical expenses to Newton County Ambulance for a July 31, 2009, date of service (P.6).

CERTIFIED NEWTON COUNTY AMBULANCE BILL - AMS EXHIBIT B

Alleged employer AMS admitted a certified copy of the Newton County Ambulance bill of July 31, 2009, as AMS Exhibit B. The Exhibit indicates that Newton County Ambulance District accepted the $1,017.29 Medicaid payment as payment in full. The bill showed a zero balance due (P.3).

CERTIFIED UNIVERSITY OF MISSOURI HEALTHCARE BILL - AMS EXHIBIT C

Alleged employer AMS admitted a certified copy of the University of 11-iissouri Healthcare/University Physicians billing records dated May 22. 2017 as Exhibit C (P. l ). The billing records reflect on page 9 that the University Medical Center accepted $16,5 I 5.49 from

13

Issued by DIVISION OF WORKERS' COMPENSATlON


Medicaid as full payment with a zero balance for the hospitalization charges of Claimant from July 31, 2009, through August 11, 2009.

AMS Exhibit C indicates Claimant received additional medical treatment with University Hospitals and Clinics subsequent to August 11, 2009. These bills 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. Bills for service dates August 21, 2009, September 15, 2009, October 27, 2009, and January 26, 2010, consistently showed zero outstanding balances as a result of discounts, adjustments, write-offs, and out-of-pocket payments (P. l 0-13).

AMS Exhibit C further indicates that medical bills from University Physicians from July 31, 2009, through August 11, 2009, consistently showed outstanding zero balances due from the Claimant but for a 50 cent charge on August I, 2009, a 50 cent charge on August 3, 2009, a 50 cent charge on August 4, 2009, and a 50 cent charge on August 22, 2009. The remainder of the bills were satisfied as a result of a combination of Medicaid payments, Medicaid adjustments, other adjustments, or write-offs (P.14-46).

A review of the medical bills from University Physicians after August 11, 2009, indicated a balance due on September 15, 2009, of$69.00 (P.47); an outstanding charge of$68.75 for an October 27, 2009, charge (P.48); a charge of $95.25 for x-rays performed on January 26, 2010, (P.49); and an outstanding charge of $52.25 for Claimant's office visit of January 26, 2010, (P.50); These outstanding bills totaled $287.25.

ORDER OF LIQUIDATION - FREESTONE INSURANCE AMS EXHIBIT D

Alleged Employer AMS admitted into evidence as AMS Exhibit D a copy of the Order of Liquidation from the Court of Chancey of the State of Delaware dated July 18, 2014 placing Freestone Insurance Company into liquidation. Pl. The court concluded based on the evidence that Freestone, the insurer for AMS Staff Leasing on July 31, 2009, was insolvent, that further efforts to rehabilitate Freestone would be useless, and that an Order of Liquidation was appropriate (P.2). A Receiver was to take possession of the property and assets of Freestone (P.3).

Al\1S STAFF LEASING AGREEMENT WITH INITIALLY COVERED ROSTER OF LEASED EMPLOYEES SUBMlTTED BY TAYLOR ROOFING -AMS EXHIBIT E

Alleged Employer AMS admitted into evidence as AMS Exhibit E a copy of the Staff Leasing Agreement in effect between AMS Staffing Leasing and Taylor Roofing of Joplin, Missouri on July 31, 2009. The Staff Leasing Agreement is dated March 16, 2009 (P.3). In provision IA, AMS agreed to process the payroll for the staffing provided by the client company Taylor Roofing. In provision lB, Alv[S Staff Leasing agreed to provide workers' compensation coverage "for the staffing provided by AMS lo client company.'' (P. l) Provision 2 of the agreement indicated that AM:S would pay all federal, state or local taxes assessed upon labor furnished under the Staff Leasing Agreement (P. l ).

14



The Staffing Agreement at provision 4B imposed upon Taylor Roofing the requirement that all hiring paperwork prior to the start of any new staff or uninsured subcontractor be submitted to AMS (P.l). Provision 4B clearly indicates if the required paperwork was not provided prior to the worker's starting date that individual would not become an employee of AMS and would not be covered by workers' compensation insurance coverage provided by AMS Staff Leasing (P.l).

Provision 4A of the Staff Leasing Agreement provided that if the client company failed to provide accurate time records for any worker or uninsured subcontractor to AMS, that worker was to be considered the sole employee of the client company and not AMS Staff Leasing (P .1 ). Provision 4A goes on to indicate in that situation, co-employment was destroyed, dual employment was created, and insurance coverage through AMS Staff Leasing was voided (P .1).

At page 3 of AMS Exhibit E the Agreement indicated that AMS assumed responsibility for payment of wages only to leased employees of the client company.

AMS Exhibit E also contained the Initially Covered Workers Roster submitted by Taylor Roofing to AMS Staff Leasing on March 16, 2009 (P .9). The Roster included the names of the Taylor Roofing workers to be submitted as leased employees for AMS Staff at that time (P .9). The names of Claimant Lopez and Raul Alberto Frias were not included in the Initially Covered Workers' Roster submitted by Taylor Roofing on March 16, 2009, (P.9-10).

The Initially Covered \1/orker's Roster completed by Taylor Roofing on March 16, 2009, stated that for workers' compensation coverage through AMS Staff Leasing to occur, completed AMS Staff Leasing Employee Applications had to be received and each leased employee's total gross payroll was to be reported to AMS (P.9). The Roster then stated that workers' compensation was not to be extended to any employee who was not paid through AMS Staff Leasing (P.9). Finally, the Roster completed by Taylor Roofing indicated that workers' compensation coverage for employees through AMS was not effective until a complete AMS Staff Leasing Application for Employment had been received (P.9).

AMS APPLICATIONS FOR EMPLOYMENT RECEIVED FROM TAYLOR ROOFING - AMS EXHIBIT F

AMS Staff Leasing admitted into evidence Exhibit F, a copy of all Employee Applications submitted by Taylor Roofing to AMS in 2009. Taylor Roofing was required by the Staff Leasing Agreement to submit to AMS a written Application of Employment to make each of their workers a leased employee of AMS and to be covered under the AMS workers' compensation policy Exhibit E, page I. Exhibit F indicates that although Taylor Roofing submitted Applications of Employment for a number of their direct employees to AMS, no Employment Application was received for Claimant Mr. Lopez or Mr. Frias.

An examination of the AMS Staff Leasing Applications for Employment contained in the exhibit indicates that each Application was initialed. signed, and dated by the Taylor Roofing

15


Employee: Claudio Lopez Injury No. 09-1 ll 744

worker in question. No signed written Application for Claimant Lopez or Mr. Frias was placed into evidence by any party.

AMS PAYROLL RECORDS FOR TAYLOR ROOFING \VORKERS-AMS EXHIBIT G

AMS Staff Leasing admitted into evidence Exhibit G, a copy of all AMS payroll records concerning workers of Taylor Roofing. The exhibit indicates that AMS never handled or issued payroll checks, paid taxes, or handled any financial transaction relating to Claimant Lopez at any time.

CERTIFICATE OF LIABLITY INSURANCE - TAYLOR ROOFING EXHIBIT A

Taylor Roofing admitted Exhibit A, a Certificate of Insurance produced by AMS relating to a specific job performed by Taylor Roofing for the City of Neosho. The insured is listed as AMS, 1, c, f, a term meaning labor contractor for Taylor Roofing, the client company. The Certificate of Insurance further stated that "coverage is not provided for any employee for which the client is not reporting wages to AMS" (P.l). The certificate stated that coverage applied to "100% of the employees of AMS leased to Taylor Roofing effective 6-20-2009" (P.l). Finally, the certificate stated workers' compensation was provided Taylor Roofing "under the policy for employees leased from AMS" (P.l).

CORRESPONDENCE DATED APRIL 10, 2012, FROM HEIDI PAPENTHIEN OF CBCS CLAIMS - TAYLOR ROOFING EXHIBIT B

Taylor Roofing admitted Exhibit B, a letter dated April 10, 2012, written by Heidi Papenthien of CBCS Claims and directed to attorney Greg Carter, their attorney of record. In her conespondence, Ms. Papenthien stated that AMS and Dallas National Insurance Company took the position that Claimant was never under lease by AMS Staff Leasing and therefore not a covered employee for workers' compensation insurance under AMS Staff Leasing's policy with Dallas National Insurance Company (P.l).

CORRESPONDENCE DATED APRIL 18, 2012, FROM HEIDI PAPENTHIEN OF CBCS CLAIMS-TAYLOR ROOFING EXHIBIT C

Taylor Roofing admitted Exhibit C, a letter dated April 18, 2012, written by Heidi Papenthien of CBCS Claims and directed to attorney Greg Carter, their attorney of record. In her conespondence, Ms. Papenthien repeated the position of AMS that Claimant was not an AMS Staff Leasing employee on the date of injury and therefore not eligible for workers' compensation coverage under AlV1S Staff Leasing's policy with Dallas National Insurance Company (P.l). M0s. Papenthien stated a copy of the Dallas National Insurance Company workers' compensation policy would be provided pursuant to subpoena (P.I).

ATTOR.l\'EY FEES OF ATTORNEY CARTER IN CONNECTION \VITH HIS REPRESENTATION OF TAYLOR ROOFING/SCOTT TAYLOR-TAYLOR ROOFING

EXHIBIT D

16


Employee: Claudio Lopez lnjw-y No. 09-111744

Attorney Carter, counsel for Taylor Roofing/Scott Taylor, submitted his itemized legal bill for attorney fees and costs totaling $8,164.80 in connection with his request that his fees/costs be awarded against AMS Staff Leasing/Freestone Insurance Company in Liquidation (formerly Dallas National Insurance Company).

CONCLUSIONS OF LAW ISSUE 1- WHETHER CLAIMANT WAS AN EMPLOYEE OF AMS ON JULY 31, 2009

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 thtough AMS Staff Leasing. Taylor Roofing continued to direct day-today 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. l. Then, Section 4A stated Taylor Roofing was to submit payroll to AMS Staff Leasing for processing for each leased employee (Exhibit E, P.l). 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 Alvl.S 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. Al\1S Exhibit F contained many Applications for Employment submitted by Taylor Roofing but none was submitted to AMS for Claimant.

17



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 tenns 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 argmnent. 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 AlvtS 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. Alv[S 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


Employee: Claudio Lopez lnjwy 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, coemployment 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 Hanunons 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 (I) 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 fi.nther states the following also at AMS Exhibit E, P. 9:

REMEMBER ...

!i Employees CANNOT BE PAID WITHOUT A CO!vfPLETED APPLICATION aJ1d workers' compensation coverage is NOT extended to aJ1y employee who was not paid thrnugh AMS Staff Leasing.

j 9


Employee: Claudio Lopez Injury No. 09-111 744

1111 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 ,vorkers' 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. l.

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. JV,r. 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 01\ly 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. \Iola.rich, 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

20


Employee: Claudio Lopez InjuryNo. 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 WalMart 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 t.'iat 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). Alvi.S Exhibit A, the Medicaid lien, confirms Medicaid paid $16,515.49 in medical expenses covering dates of service from July 3 L 2009, (p4).

AM_S Exhibit C reveals additional bills from University Hospital for service dates August 2i, 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, T,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.

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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 an October 27, 2009, visit (P.48); a balance of $95.25 for x•rays take 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 ce1tified 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 an10unt of $1,397.83. Exhibit C shows the out-of-pocket payments to the University of Missouri Healthcare as OTC cash payments in the an10unt of $75.00 and to University Physicians as personal payments in the amount of $75.00. No evidence was admitted which showed out-ofpocket 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. l\1issouri 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 1\/iissouri 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.

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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. \lolarich 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,

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Employee: Claudio Lopez Injwy 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 TOT AL DISABILITY

Claimant seeks an award of temporary total disability for I 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 oflost 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 repmied he had no complaints of pain. Exhibit 1. Claimant was said to be doing well. Exhibit 1. M:ore impmiantly, Claimant's physician released him at that time without any particular work restrictions. Exhibit 1. Dr. Volarich admitted in his deposition that Clamant was released on January 26, 2010, without restrictions. Exhibit 2, P. 33. Dr. Vo la.rich offered no testimony suppon:ing a finding that Claimant's period of temporary total disability extended past January 26, 2010. Exhibit 2. P. 33. Based 011 the evidence. Claimant's award of temporary total disability is limited to that time period ending on January 26, 2010.

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Employee: Claudio Lopez lnjwy 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 hls 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 caunot 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, whlch does not require running up and dovm 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, 20 I 2, 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 '/4 crepitus with circumduction of the right wrist. Claimant also had some discomfo1t 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.

\Vith regard lo 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

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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 stiffuess 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 IO weeks for disfigurement. I order Taylor Roofing to pay $4,229.70 to Claimant.

ISSUE 8 - LIABLITY 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 v,·ith 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 statue, 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 ofan injured employee in the employ ofan uninsured employer. I find

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that as a result of the employer, Taylor Roofing, having failed to comply with the tenns 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 Statue 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 faith 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 Claima11t Lopez a11d failed to take them. Taylor Roofing as an entity was not insured through Dailas 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

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''


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 Fim1, LLC fill attorneys' fee of 25% of all amounts awarded herein, which shall constitute a lien upon this award.

lo@Mlfythe\911 [},,:J.(,p~/9 ., I delivered ~ CCJPY of \ha forcgolng ew.rd to the p~r\les lo \hri ca~&,. /\ complete record of the method of delivery and dale of service upon eac:h party is retained with the executed award in the Division's case file.

Made by

Administrative Law Judge Division of Workers' Compensation

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