This is
a case primarily about two things. What
did the parties mean when they settled a case and agreed to leave medical open
and who should interpret the meaning of what is owed if there is a dispute? It is in some respects primarily a “contract”
case about intent but is important for the procedural warning that employers
may be pulled back into the comp system if the contract language is unclear or
if the parties dispute what it includes.
The
problem in the first instance arose when the parties settled a case for disability
but claimant had ongoing medical issues related to a pulmonary condition and
apparently was at risk for silicosis. To
address these concerns, the employer agreed to leave medial “open.” The employer apparently did not want to pay
for inhalers and basically argued that the medical was left only partially open
to include monitoring such as scans but not include other things. It was the employer’s position that when the
case was settled that the employee’s only recourse was to sue them in circuit
court for specific performance or breach of contact if they didn’t like what
was being paid or what was being denied.
The
Supreme Court in oral arguments questioned the narrow interpretation by the
employer when it promised to “leave future related medical care open” that it
meant to only include monitoring and not a broader array of treatment such as
inhalers. In the case claimant had
sought to obtain inhalers, but the employer denied benefits based on a second
opinion contrary to the recommendations of the physician they designated in the settlement contracts to provide treatment.
The
court resolved the dispute based on its statutory interpretation. Section 287.390.1 did not include language which
divested the Division of jurisdiction in these circumstances. Section 287.801 vested authority to “review”
claims of future medical benefits with the commission and appellate courts and
not the circuit court. The Division has long established authority to sort out
the employer’s obligations for treatment for industrial injuries. The court noted the issue here was one of interpretation,
caused by the contract language itself, and not a matter of enforcement. If the
issue was simply enforcement (an unpaid award, for example), then 287.500
provided a procedural remedy to register and enforce the judgment through
circuit court.
There may be a drafting lesson here to avoid this type of “buyer’s
regret" by the employer designating a specific specialist on the contract. What if the specialist dies or retires and
there are no contingencies? What if the
specialist does something unexpected?
Perhaps the drafting lesson is to retain the right to select a physician
rather than naming one person without other contingencies for medical management
of a claim. Parties can certainly use
additional pages to sort out contingencies rather than the “short hand” method
used here. Defense counsel in oral arguments spent a lot of time describing the word "open" as a term of art in comp. Parties are free to structure what they will pay for and not pay for, which is becoming necessary in more cases generally because of Medicare involvement in many comp settlements. The Medicare problem becomes a bigger problem to if parties in cases agree to leave medical open, acknowledge they are settling in consideration of Medicare's interests, and then refuse to pay for treatment. The issue of enforcement is often understated in contracts. Perhaps even if the Division technically retains jurisdiction the parties could designate by contract other means to resolve disputes more quickly when the costs are limited such as various ADR methods.
Atty: Lindsay, Mogab
