Claudio Lopez v Taylor Roofing and AMS Staff Leasing
Freestone Ins. Co. in Liquidation
Release date : Oct 3, 2019 (Accident date July 31, 2009)
Venue: Jasper County
Plot Summary: Claimant seeks benefits after falling off a roof for an uninsured employer. The ALJ awarded PPD but denied future medical care and denied past medical based on a Medicaid lien when no one appeared for the state on behalf of the lien. The Commission reversed and awards future medical and awards the Medicaid lien.
Inj. No. 09-111744
https://labor.mo.gov/sites/labor/files/decisions_wc/LopezClaudio09-11174410-03-19.pdf
Cast:
Fisher, ALJ
Carbrera
Carter
Sharp
Pierce
Volarich
Memorable quotes:
"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."
"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."
Comments:
The ALJ found claimant was treated for ORIF to the hip and wrist, incurred $122,923.08 in medical expenses, but denied liability for Medicaid lien when Mo HealthNet was not present at the final hearing, chose not to appear, chose not to introduce evidence at the hearing, or to show what they have paid or that payments are related to the accident. On appeal, the Commission found the ALJ exceeded her statutory authority and 287.266.10 allowed apportionment between employer and employee but no authority to reduce or extinguish the lien.
The ALJ awarded Dr. Volarich's rating of disability of 30% BAW for the pelvis fracture and 35% of the right wrist. No other expert provided evidence on PPD. The ALJ found Dr. Volarich credible that claimant had "some" pain and some diminished motion. Claimant testified by deposition that he had no health problems with the wrist or the hip as a result of the accident.
The commission reversed and awarded future medical despite the absence of any record of treatment for several years leading up the hearing. He has retained hardware which may or may not require removal in the future. Claimant returned to work as a carpenter. He did not speak English. He had not had therapy or a need for prescriptions after 2010. He raised "no specific issues" regarding his hardware.
The Commission rejected the argument that there was no need for future medical because claimant may require treatment in the future, and Dr. Volarich indicated the possible need for pain management in addition to potential removal of the hardware. The commission found this opinion persuasive even though claimant had not "utilized such care thus far." Further, although 287.140.8 provided a right to re-activation if claimant developed problems with the hardware, the commission found 287.140.8 only applied in settlements and did not apply in hearings.
A dissenting commissioner would not have awarded future medical and found the need for future medical speculative.
The ALJ raised potential constitutional barriers to award future medical against the Fund pursuant to 287.220(15) for benefits incurred after July 1, 2012. It is unclear if this issue was raised on appeal.
Claimant's testimony was found credible that he was paid cash of $780 a week.
What's it worth?
wrist ORIF - 35%
pelvis fx ORIF 30%
