Frank Pierce v. Bedrock Inc., d/b/a/ Tri State Motor Transit Co.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Reversing Award and Decision of Administrative Law Judge)

**Injury No.:** 09-072827

**Employee:** Frank E. Pierce

**Employer:** Bedrock Inc., d/b/a/ Tri State Motor Transit Co.

**Insurer:** Zurich American Insurance Co.

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 briefs, heard the parties' arguments, and considered the whole record. Pursuant to § 286.090 RSMo, we reverse the award and decision of the administrative law judge (ALJ).

At hearing, the ALJ identified the following issues in dispute:

- Whether the employee's claim can be reactivated pursuant to § 287.140.8.

- Whether the employer/insurer is liable to the employee for future medical care in order to cure and relieve the effects of his September 14, 2009, injury.

- Whether the employer/insurer is liable for future temporary total disability, should the employee receive future medical care relating to this injury and be unemployable in the open labor market.

In her Award dated September 9, 2017, the ALJ denied the employee's claim for reactivation pursuant to § 287.140.8. She found that the employee failed to demonstrate "good cause" to reactivate his claim because the evidence and his physical condition had not changed since he entered into a compromise settlement of his claim on May 4, 2012; he "specifically settled" his claim in lieu of trying the matter of future medical; and because the employee "received the treatment he willingly negotiated for in 2012." The ALJ further found that the evidence did not support an award for additional treatment in the form of a knee replacement (TKR) because Dr. Prem Parmar's opinion attributing the need for a TKR to the employee's preexisting arthritis was more persuasive than Dr. James Stuckmeyer's opinion that a TKR is needed to cure and relieve symptoms that flowed from the employee's September 14, 2009, accident.

The employee filed a timely application for review alleging the ALJ erred in denying employee's claim for additional medical treatment pursuant to § 287.140.8 because

- The employee provided sufficient competent evidence of good cause to reactivate his claim in that he sustained a significant decrease in his earnings capacity because without a total knee replacement he could

1 Award, p. 7.

Injury No.: 09-072827

Employee:

Frank E. Pierce

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no longer drive over the road trucks on a continuous basis for a living and was thereby denied access to those jobs in the open labor market.

- The ALJ denied reactivation on the grounds that the claimant previously agreed to a settlement of his claim and thereby waived the opportunity to raise the reactivation issue, thereby ignoring the mandate of the Western District Court of Appeals in *Pierce v. Zurich American Insurance Co.*, 441 SW3d 208 (Mo.App. 2014).

For the reasons set forth herein, we reverse the administrative law judge's award and decision.

The employee injured his right knee at work on September 14, 2009. He entered into a Stipulation for Compromise Settlement with employer/insurer on May 4, 2012, for a lump sum of $17,933.93. The settlement provided "Medical remains open for 1 (one) year from the date this stip. is approved." It further specifically stated that by entering into the settlement the employee would forever close out his claim *except as provided by $287.140.8* (emphasis added).[^2]

In June 2012, the month following the settlement, the employee demanded that employer approve knee replacement surgery on the basis that the surgery was covered by the provision that medical was to remain open for one year following the date the settlement was approved.[^3] In response, employer referred employee to Dr. Parmar, who treated him with cortisone and Marcaine injections. On July 12, 2012, Dr. Parmar advised the employee that future arthroplasty, although worthy of consideration, would be "preexisting and not work-related."[^4]

The employee filed a petition in the circuit court demanding, *inter alia*, specific performance of the settlement agreement. The circuit court granted employer/insurer's motion to dismiss the employee's petition on the basis that it lacked subject matter jurisdiction.[^5] In *Pierce v. Zurich American Insurance Co.*, 441 SW3d 208 (Mo. App. 2014) the Western District Court of Appeals reversed the trial court's dismissal of the employee's petition. The appellate court found the trial court did not lack subject matter jurisdiction but rather lacked the statutory right to proceed in the case because the "reactivation provision" of $287.140.8 covered the relief employee sought.[^6]

On October 28, 2014, in compliance with the court of appeals' remand, the circuit court entered an order stating, in pertinent part, "Plaintiff shall be allowed to pursue his claim under the Reactivation Provision of the Missouri Workers' Compensation Law."[^7]

[^2]: Claimant's Exhibit D, Transcript, 411.

[^3]: *Pierce v. Zurich Am. Ins. Co.*, 441 S.W.3d 208, 210.

[^4]: Transcript, 438.

[^5]: Id. 442.

[^6]: *Pierce*, *supra* at 214.

[^7]: Employer/Insurer's Exhibit 1, Transcript, 444.

Injury No.: 09-072827

Employee: Frank E. Pierce

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The Division received Employee's Motion to Reactivate the Claim Pursuant to Section 287.140.8 RSMo on November 4, 2014. On November 7, 2014, the employer/insurer filed an Objection to Claimant's Motion to Reactivate. Employer/insurer asserted that the Administrative Law Judge had no jurisdiction to review the May 4, 2012, settlement in that the settlement was a final award and not subject to change or modification after the lapse of twenty days, pursuant to 8 CSR 20-3.010.8 In the alternative, employer/insurer argued that the employee failed to show good cause for reactivation of his claim as required by a September 24, 2014, Division of Workers' Compensation memoranda enacted pursuant to § 287.140.8.9

Findings of Fact

We find that the September 14, 2009, accident was the prevailing factor causing a change in the pathology of employee's right knee resulting in an immediate onset of symptoms of pain and an increased level of disability which necessitated medical care, including two authorized surgical procedures.

These reasonable and necessary surgical procedures were clearly calculated to cure and relieve symptoms of pain and/or instability caused by employee's September 14, 2009 accident. For example, in Dr. Parmer's notes of May 11, 2010 (prior to the second surgery he performed on June 15, 2010) he recommended surgery because it would be "unreasonable" for the employee to continue to live with his symptoms.10 We further note Dr. Jones' September 28, 2010, report regarding his consult on May 10, 2010, wherein he observes employee's pain is "not uncommon" with a combination of anterior cruciate reconstruction and grade 4 articular injuries. He further indicates that a partial joint replacement may be the only way to resolve some of the employee's symptoms.11

There is no evidence that leading up to September 14, 2009, the employee had symptoms or disability referable to his right knee that warranted surgical intervention. We find the employee's September 14, 2009, work injury to be the prevailing factor causing a change in pathology in the employee's right knee and a permanent increase in the level of disabling symptoms referable to the right knee. We further find the two subsequent surgical procedures performed by Dr. Parmer were reasonable and necessary to cure and relieve these symptoms of pain and/or instability but, unfortunately, have not proven entirely successful.

The medical evidence persuades us that a knee replacement procedure is at this point a reasonable and necessary option to cure and relieve continued symptoms of pain caused by the September 14, 2009, work injury and/or related to surgical procedures necessitated thereby.

8 8 CSR.20-3.010(2)(C) provides: "An administrative law judge shall not have any authority to change or modify a final award issued by an administrative law judge after the lapse of twenty (20) days from the date of issuance of an award or after an application for review (see 8 CSR 20-3.030) has been filed with the commission in connection with any final award, order or decision of an administrative law judge."

9 Employer/Insurer's Exhibit 2, Transcript, 445.

10 Claimant's Exhibit A, Transcript, 264.

11 Id. 326-327. Dr. Jones' report notes that Dr. Parmar's surgery on December 15, 2009, included an ACL reconstruction.

Improvee:

Frank E. Pierce

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Section 287.140.8 provides:

The employer may be required by the division or the commission to furnish an injured employee with artificial legs, arms, hands, surgical orthopedic joints, or eyes, or braces, as needed, for life whenever the division or the commission shall find that the injured employee may be partially or wholly relieved of the effects of a permanent injury by the use thereof. The director of the division shall establish a procedure whereby a claim for compensation may be reactivated after settlement of such claim is completed. The claim shall be reactivated only after the claimant can show good cause for the reactivation of this claim and the claim shall be made only for the payment of medical procedures involving life-threatening surgical procedures or if the claimant requires the use of a new, or the modification, alteration or exchange of an existing, prosthetic device. For the purpose of this subsection, "life threatening" shall mean a situation or condition which, if not treated immediately, will likely result in the death of the injured worker.

Pursuant to § 287.140.8 the employer may be required to furnish a surgical orthopedic joint after settlement of the employee's claim is completed only after the employee shows "good cause" to reactivate his claim.

The Missouri Workers' Compensation Law does not include a definition of "good cause." However, *Pharmflex v. Division of Employment Sec.*, 964 S.W.2d 825 (Mo.App. 1997) describes good cause as "a cause or reason sufficient in law; one that is based on equity or justice or that would motivate a reasonable man under all of the circumstances." *Id.* citing *State v. Davis*, 469 S.W.2d 1, 4-5. (Mo. 1971).

As we have found, the employee's need for a TKR flows from the September 14, 2009, work injury. As noted in *Tillotson v. St. Joseph Medical Center*, 347 S.W.3d 511, 519 (Mo. App. 2011):

> [I]t is immaterial that the treatment may have been required because of the complication of pre-existing conditions, or that the treatment will benefit both the compensable injury and a pre-existing condition. *Bowers v. Hiland Dairy Co.*, 188 S.W.3d 79, 83 (Mo. App. S.D. 2006). Rather, once it is determined that there has been a compensable accident, a claimant need only prove that the need for treatment and medication flow from the work injury. *Id.* The fact that the medication or treatment may also benefit a non-compensable or earlier injury or condition is irrelevant. *Id.* (emphasis added).

Injury No.: 09-072827

Employee: Frank E. Pierce

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We conclude that the employee in this case has shown good cause to reactivate his claim, based on principles of equity and justice, by demonstrating that his September 14, 2009, injury is the prevailing factor in causing his current medical condition and resulting need for a TKR, pursuant to § 287.020.3(1)¹² and *Tillotson, supra*. We find employer/insurer liable therefor.

The compromise settlement in this case, approved on May 4, 2012, specifically provided "medical remains open for 1 (one) year from the date this stip, is approved."¹³ In June 2012, the month following the settlement, the employee sent a demand to employer for approval of knee replacement surgery. Empl