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

- 2 -

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

- 3 -

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

- 4 -

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

- 5 -

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. Employee's demand for future medical treatment was well within the settlement's stipulated one-year "open" period.

In the case of *State ex rel. ISP Minerals, Inc. v. Labor and Indus. Rels. Comm'n*, 465 S.W.3d 471 (Mo. 2015), the parties entered into a compromise settlement that included an agreement to leave future related pulmonary medical care open. The Supreme Court found that the Commission retained jurisdiction to determine the employee's "open" claim regarding the extent of the employer's liability for future medical benefits consistent with 287.801, which provides that "only administrative law judges, the commission and the appellate courts of this state shall have the power to review claims filed under this chapter." *Id.* 476. The Court decided *ISP* the year after the Western District court directed this employee to enforce his demand for future medical treatment by filing a request for reactivation pursuant to § 287.140.8. See *Pierce v. Zurich American Insurance Co, supra*.

Based on the Supreme Court's holding in *ISP Minerals*, we conclude we have jurisdiction to determine employer's liability to provide future medical care to employee independent of the reactivation provisions of § 287.140.8 RSMo.

We reverse the award of the administrative law judge. Employer/insurer shall provide to employee future medical care reasonable and necessary to cure and relieve employee of the effects of his injury consisting of a total knee replacement.

This award is subject to a lien in favor of Jerry Kenter Attorney at Law, in the amount of 25% for necessary legal services rendered.

¹² 287.020.3(1) RSMo provides "In this chapter the term 'injury' is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. 'The prevailing factor' is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability."

¹³ Claimant's Exhibit D, *Transcript*, 411.

Any past due compensation shall bear interest as provided by law.

The award and decision of Administrative Law Judge Lisa Pottenger, issued September 19, 2017, is attached solely for reference.

Given at Jefferson City, State of Missouri, this $\qquad$ 14th day of June 2018.

LÄBOR AND INDUSTRIAL RELATIONS COMMISSION


John J. Larsen, Jr., Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member


Attest:


Injury No.: 09-072827

Employee: Frank E. Pierce

I did not participate in the February 28, 2018, oral argument in this matter, held prior to my appointment to the Commission. However, I have reviewed the evidence, read the briefs of the parties, listened to an audio recording of the oral argument, and considered the whole record. 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 Worker's Compensation Law, I believe the decision of the administrative law judge should be affirmed.

As the administrative law judge notes in her September 19, 2017, Final Award on Reactivation:

> Claimant knew and understood the terms of the [May 4, 2012] agreement and voluntarily agreed to the settlement. Although the Employer provided treatment pursuant to the Compromise Settlement in the form of injections, the Employee now seeks to reactivate the claim when the evidence used to reach the original agreement has not changed, nor has his symptoms (emphasis added). I find Claimant received the treatment he willingly negotiated in 2012. Indeed, he had the opportunity to try this matter of future medical, yet specifically settled and negotiated to leave medical open for one year based on Dr. Parmar and Dr. Stuckmeyer's opinions. The totality of the circumstances lead me to find insufficient and unreasonable cause to reactive the claim. As such, I do not find good cause exists to reactivate the claim pursuant to § 287.140.8 RSMo.

Furthermore, the evidence, in any event, does not support an award for additional treatment in the form of a knee replacement. Claimant has the same symptoms at the time of the settlement and reactivation hearing as he had in 2002 as evidenced by a report by Dr. Prostic (emphasis added). Indeed, on August 26, 2002, an IME reveals the patient continues with ache where "he points anteromedially and anterolaterally the right knee. He continues the painful popping, intermittent swelling, and giving way. . . . He has increased difficulty on stairs, squatting kneeling, and twisting." (See Dr. Prostic report, Ex. A, page 283.1)

1 Dr. Prostic's report is Bates stamped 00283. However, the report is located on page 331 of the July 17, 2017, hearing transcript.

2 Award, p. 8.

Injury No.: 09-072827

Employee: Frank E. Pierce

- 2 -

I agree with the employer/insurer's November 7, 2014, Objection to Claimant's Motion to Reactivate, in particular employer/insurer's observation that "The only basis for this motion [to reactivate] referenced by employee is he didn't get the medical treatment he wanted, not that he did not get the medical treatment that was negotiated for and provided in the one year period [provided in the May 4, 2012, Stipulation for Compromise Settlement]."

As Dr. Parmar, orthopedic surgeon and the employee's treating physician, affirmed in office notes documenting his physical exam of the employee on July 12, 2012, although arthroplasty might be appropriately considered to treat the employee's ongoing symptoms of discomfort, "this is preexisting and not work related (emphasis added)."

For the reasons stated above, I adopt the decision of the administrative law judge, in its entirety, as my decision in this matter.

Because the Commission majority has decided otherwise, I respectfully dissent.

Reid K. Forrester, Member

---

3 Employer/insurer's Exhibit 2, Transcript, 445.

4 Employer/insurer's Exhibit 5, Id. 531.

Employee: Frank E. Pierce

Injury No. 09-072827

Dependants: N/A

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

Insurer: Zurich American Insurance Co.

Additional Party: N/A

Hearing Date: July 17, 2017

Checked by: LP/drl

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease? September 14, 2009
5. State location where accident occurred or occupational disease was contracted: Springfield, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was Claim for Compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee slipped off a step and fell to ground
12. Did accident or occupational disease cause death? No
13. Part(s) of the body injured by accident or occupational disease: Right knee.
14. Nature and extent of any permanent disability: Not at issue.

Issued by: DIVISION OF JRKERS' COMPENSATION

Employee: Frank E. Pierce

Injury No.: 09-072827

1. Compensation paid to date for temporary disability: $37,174.08

1. Value necessary medical aid paid to date by employer/insurer? $53,300.43

1. Value necessary medical aid not furnished by employer/insurer? N/A

1. Employee's average weekly wages: Not at issue

1. Weekly compensation rate: Not at issue

1. Method wages computation: Not at issue

COMPENSATION PAYABLE

1. Amount of compensation payable:

Weeks of permanent partial disability from Employer: Not at issue

Amount of award against Employer: 0

1. Second Injury Fund liability: Not at issue.

TOTAL: 0

1. Is Reactivation Appropriate:

The employee has not demonstrated "good cause" to Reactivate his claim pursuant to R.S. MO 287.140.8. His stipulation provided for additional medical for one year and the Employer provided Claimant with treatment by Dr. Parmar pursuant to the compromise settlement.

1. Future Medical Benefits:

The employee is not entitled to an award of future medical for the reason that any future medical, specifically including a total (right) knee replacement, is not reasonably related to the September 14, 2009 accident.

Page 2

Issued by: DIVISION OF JRKERS' COMPENSATION

Employee: Frank E. Pierce

Injury No.: 09-072827

Employee: Frank E. Pierce

Injury No. 09-072827

Dependents: N/A

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

Insurer: Zurich American Insurance Co.

Additional Party: N/A

Hearing Date: July 17, 2017

Checked by: LP/drl

On July 17, 2017, the Employee and the Employer appeared for a hearing regarding reactivation of a claim pursuant to 287.140.8 RSMo. The Employee, Mr. Frank Pierce, appeared in person with counsel, Jerry Kenter. The Employer/Insurer appeared through their attorney, Julie Sample. The Second Injury Fund was not a party to the case.

The parties stipulated that:

1. The Employer, Bedrock Inc., d/b/a Tri State Motors was an Employer operating subject to the provisions of the Missouri Workers' Compensation Act and was fully insured by Zurich American Insurance Company;
2. That Frank Pierce was their employee and working subject to the law in Springfield, Missouri;
3. That Frank Pierce notified the Employer of his injury and filed his claim within the time allowed by law;
4. By agreement of the parties, venue is transferred from Springfield to Kansas City, Jackson County, Missouri;
5. The Insurance Company has provided medical care costing $53,300.43 in temporary total disability for 58 6/7 weeks in the amount of $37,174.08;
6. That the parties settled their underlying case for approximately 26 percent of the right knee in the amount of $17,933.93 along with medical to be left open for a period of one year from the date of settlement which was approved by Administrative Law Judge on May 4, 2012;

Page 3

Issued by: DIVISION OF JRKERS' COMPENSATION

Employee: Frank E. Pierce

Injury No.: 09-072827

ISSUES

The parties requested the Division to determine:

1. Whether the Employee's claim should be reactivated pursuant to RSMo 287.140.8 for good cause; and

1. Whether the Employer and Insurer are liable for the future medical care in the form of a total knee replacement to cure and relieve the effects of the injury sustained in the accident of September 14, 2009 and, along with the temporary total disability payments, should he undergo surgery and be unable to work in the open labor market.

FINDINGS OF FACT

The background and procedural status of this case is as follows:

The Employee, claimant, sustained a compensable injury on September 14, 2009. He suffered an ACL disruption as a result of this accident. Treatment was provided by the Employer/Insurance and ultimately he was found to be at MMI. The parties entered into a written Stipulation for Compromise Settlement on May 4, 2012 which was approved by Chief Administrative Law Judge Paula McKeon.

The terms of the Stipulation provided for a lump sum payment of $17,933.93 as well as handwritten in the Stipulation that the medical remains open for a period of (1) one year from the date this Stipulation is approved. Shortly after Judge McKeon approved the settlement, the Employee sought additional treatment. Pursuant to the Compromise Settlement, the Employer sent Claimant to Dr. Prem Parmar for treatment on July 12, 2012. Dr. Parmar provided a cortisone injection of Claimant's right knee. Dr. Parmar again advised Claimant he needed a total knee replacement based on the pre-existing levels of arthritis. (See Ex. F, depo Ex. 2)

Dr. Parmar was the authorized surgeon who had treated Mr. Pierce's ACL disruption as a result of the September 14, 2009 accident. Prior to the compromise settlement Dr. Parmar concluded Mr. Pierce will need a total knee replacement due to the grade 3/4 arthritic condition. Rather, the need for the knee replacement is the result of a longstanding preexisting arthritic process and, as a result, the total knee replacement was denied since the procedure would not cure/relieve the symptoms stemming from the September 2009 accident.

The Employee in May of 2013 filed a lawsuit in Circuit Court of Jackson County, Missouri seeking declaratory relief and specific performance of the contract. The lawsuit was dismissed for lack of subject matter jurisdiction and the Circuit Court determined that the Division of Workers' Compensation had exclusive jurisdiction over any claim for future medical benefits. The Employee argued that the Division had lost jurisdiction to make any determination regarding the Employee's need for future medical.

Page 4

Issued by: DIVISION OF ...JRKERS' COMPENSATION

Employee: Frank E. Pierce

Injury No.: 09-072827

The Employee appealed that Circuit Court decision to the Western District Court of Appeals. On September 9, 2014 the Western District issued its opinion, reversing and remanding the Circuit Court's decision. The Western District determined that the trial court erred in its dismissal as it believed 1) the trial court did not have subject matter jurisdiction to try the issue; and 2) the trial court should have entered judgment on the pleadings in favor of Respondent because the relief requested is contemplated by the Division's Reactivation Provision under RSMo §287.140.8. The case was remanded back to the trial court who dismissed the lawsuit, which compelled Employee to return to the Division of Workers' Compensation, requesting reactivation.

The Employee filed a Motion to Reactivate his claim on November 3, 2014, and an objection to the Motion was filed by the Employer/Insurer. The Employee then requested a hearing on the issue of whether there was good cause to reactivate this claim under §287.140.8 and, if so, whether or not the Employer is liable to the Employee for future medical care pursuant to their Independent Medical Examination of Dr. Stuckmeyer.

Mr. Pierce has a significant history of right knee problems and surgical procedures. In July of 1996 Mr. Pierce underwent an arthroscopic partial meniscectomy and ACL reconstruction to his right knee. In January of 1999, he then had a debridement and repair of his medial meniscus in that same knee. In August 2001 he had another arthroscopic debridement and fixation of chrondral fracture with screws installed. Dr. Dugan in 2001 recommended that the Employee find a more sedentary job as the heavier type of activities would cause "wear and tear" of his right knee. Dr. Dugan's records identify an arthritic process in the right knee at least in 2001 and even since that time, the employee had fluid drained from that knee due to ongoing complaints of pain. In 2002, Dr. Edward Prostic records revealed Claimant continued with anterior pain of the right knee and recommended a quadriceps realignment.

As it relates to this accident, Dr. Parmar began treating Mr. Pierce on October 27, 2009. After some diagnostic tests, he concluded that Mr. Pierce required surgery to repair his right anterior cruciate ligament. During the surgery, Dr. Parmar found grade III chondromalacia of the patellofemoral joint and grade IV chondromalacia of the medial compartment. Dr. Parmar testified he treated (the ACL disruption) the injury sustained by the September 2009 injury without the need for a knee replacement. (Ex. F, pg. 11 - 14). When Mr. Pierce continued to complain of pain, Dr. Parmar performed a second procedure, repairing an allograft plug to the femoral condyle. Thereafter, Dr. Parmar concluded the Employee was at MMI and discharged him from treatment. A rating was rendered and the parties thereafter entered into the Stipulation.

The parties presented several medical expert opinions. At his attorney's request, Dr. Stuckmeyer performed two separate examinations and provided two written reports as to both Mr. Pierce's disability and the likelihood of him needing additional treatment in the future, particularly a TKR. According to Dr. Stuckmeyer, a TKH is needed to "cure and relieve the

Issued by: DIVISION OF JRKERS' COMPENSATION

Employee: Frank E. Pierce

Injury No.: 09-072827

symptoms that flowed from the most recent industrially-related accident occurring on September 14, 2009. (Stuckmeyer report, December 18, 2015. P. 5). He has maintained that opinion from the first time he examined Mr. Pierce. Dr. Stuckmeyer acknowledges that Mr. Pierce had "ongoing symptoms of achiness in the right knee" after the three medical procedures he had in the 1990's - 2001. (Id.). Rather, he was retained to examine the Employee and the medical records (including photos of the interior knee taken during the surgery) and render an opinion as to the need for future treatment.

Dr. Parmar became Mr. Pierce's treating physician just after the September 14, 2009 accident. While performing the first surgical procedure, within a month of his accident, Dr. Parmar had an opportunity to see inside Mr. Pierce's knee and observed Grade III and Grade IV arthritic deterioration in Mr. Pierce's knee that predated the September 14, 2009 accident. Dr. Parmar has testified that he is "150%" certain that the arthritis he saw in this man's knee was there prior to his work injury of September 14, 2009. (Ex. F, Parmar deposition, p. 11). It was his opinion that Mr. Pierce requires a TKR due to his long-standing arthritic process in his knee. To be clear, he has opined that the need for the TKR is not reasonably related to the injury in September of 2009. (Id.). The September 2009 accident caused damage to Mr. Pierce's ACL. Dr. Parmar repaired that torn ACL. Mr. Pierce did not need a knee replacement for that injury other than the arthroscopic ACL repair as a result of the injury. (Id. at 12).

Regarding the issue of reactivation, the Division of Workers' Compensation issued a directive on September 24, 2014 which provided a framework to determine if and when claims should be reactivated. The Directive provides as follows:

If an employee or an employee's attorney makes contact with the Division of Workers' Compensation requesting the procedure to reactivate a Claim for Compensation, please inform the requesting party to prepare a written "Motion to Reactivate a Claim for Compensation, pursuant to §287.140.8, RSMo," and submit it to the Division's Central Office, in Jefferson City, for filing.

If the employee's attorney inquires whether a Memorandum of Law (MOL) should accompany said Motion, inform the attorney that, if he/she believes that it would be beneficial or would support the motion, such as explain the requirement of "good cause" for the reactivation of the Claim, then he/she may submit a Memorandum of Law in support of said Motion.

The Division's Central Office will forward the Motion and the MOL to the appropriate adjudication office to be set on the docket. If an Evidentiary Hearing is held, the Administrative Law Judge assigned to the case will enter an Award either granting or denying compensation after making Findings of

Page 6

Issued by: DIVISION OF JRKERS' COMPENSATION

Employee: Frank E. Pierce

Injury No.: 09-072827

Fact and Conclusions of Law specifying whether good cause exists to reactivate the Claim. Any party aggrieved by the Award may file an Application for Review with the Labor and Industrial Relations Commission, pursuant to §287.480, RSMo.

If the Division receives an Amended Claim for Compensation clearly indicating that the claimant is seeking the reactivation of a previously settled Claim, pursuant to §287.480.8, RSMo, it will be forwarded to the appropriate adjudication office to be set on the docket.

The requirements Missouri courts have specified are "(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." Clayton v. Teledyne Neosho, 960 S.W.2d 532, 534 (Mo.App. S.D. 1998) (internal citation omitted). "On the face of the pleadings, the relief requested by Appellant falls within those parameters." Frank Pierce v Zurich American Insurance Company (WD 77095, 2014)

While Mr. Pierce met the requirements of one and two, I do not find the explanation provided by the Claimant constitutes good cause, which is a third requirement to reactivate this case under the plain language of §287.140.8. I find in this case with these particular set of facts, the request unreasonable. The evidence relied on to reactivate the claim is identical to the reports relied on to enter into a compromise settlement. Claimant shortly thereafter reaching a Compromise Settlement in 2012, requested treatment and, pursuant to the Compromise Settlement, the Employer provided treatment in the form of injections.

I do not find there was a new physical condition or evidence to reactivate this claim when Claimant voluntarily entered into the settlement. Claimant's physical condition of his right knee at the time of the settlement is the same at the time of hearing to reactivate this claim. Claimant's expert, Dr. Stuckmeyer's opinion is the same at the time of hearing as it was at the time of the settlement in 2012. Dr. Parmar's, the Employer's expert, opinion has not changed from the time of the settlement. Indeed, the physical symptoms and the medical opinions that were admitted at hearing are the same evidence the parties used to reach a voluntary Compromise Settlement.

Claimant knew and understood the terms of the agreement and voluntarily agreed to the settlement. Although the Employer provided treatment pursuant to the Compromise Settlement in the form of injections, the Employee now seeks to reactivate the claim when the evidence used to reach the original agreement has not changed, nor has his symptoms. I find Claimant received the treatment he willingly negotiated in 2012. Indeed, he had the opportunity to try this matter of future medical, yet specifically settled and negotiated to leave medical open for one year based on Dr. Parmar and Dr. Stuckmeyer's opinions. The totality of the circumstances lead me to find insufficient and unreasonable cause to reactivate the claim. As such, I do not find good cause exists to reactivate the claim pursuant to §287.140.8 RSMo.

Page 7

Furthermore, the evidence, in any event, does not support an award for additional treatment in the form of a knee replacement. Claimant has the same symptoms at the time of the settlement and reactivation hearing as he had in 2002 as evidenced by a report by Dr. Prostic. Indeed, on August 26, 2002, an IME reveals the patient continues with ache where "he points anteromedially and anterolaterally the right knee. He continues the painful popping, intermittent swelling, and giving way. He is not presently taking prescription medication. He has increased difficulty on stairs, squatting, kneeling, and twisting." (See Dr. Prostic report, Ex. A, page 283.)

Dr. Prostic even assessed permanent impairment to patellofemoral arthritis in 2002. I find Dr. Prostic's opinion in 2002, and Dr. Parmar's opinion, along with evidence presented on his prior right knee sufficient for me to find the Employer not liable to Claimant for additional medical care. Dr. Stuckmeyer was not a treating physician and did not have the opportunity to see, first hand, the actual condition of the Employee's knee during any of the three surgical procedures that predated the September 14, 2009 accident or the two surgical procedures that post-dated that accident. As such, I find Dr. Parmar's opinion more persuasive than Dr. Stuckmeyer's.


By $\qquad$


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D. 10.10.1010.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.10.1