When an employer is gone who directs medical?

Do insurers gain the right to select a medical provider when the employer is no longer in business?  In Lyman v Missouri Employer's Mutual Insurance Company, 407 S.W.3d 130 (Mo. App. 2013) 2013 Mo App. Lexis 970 (August 23, 2013), the court of appeals reversed a summary judgment in favor of the employer which found the insurer had the right to direct care. Section 287.140  expressly grants that right to employers.

Claimant obtained a judgment for permanent and total disability with open medical flowing from a 2002 accident when he fell from a ladder.   He claimed the carrier was responsible for unauthorized chiropractic treatment because the statute only provided the employer the right to direct care and the employer was no longer in business. 

The issue was one of first impression.  The court  declined to decide it and found summary judgment was inappropriate because the issue was not ripe. The parties agreed that the employer was out of business,.  The court noted that members of an LLC can still make some decisions even after dissolution, and summary judgment was inappropriate when there was an unresolved material fact if anyone with the employer was willing or able to make such a decision.  The court noted the lack of evidence of articles of termination, even though termination was not a disputed issue.

Missouri is unique among many states as the employer has the right to direct medical care. This case demonstrates a fascinating problem who manages medical decisions when the employer is no longer around. Practitioners trying permanent total cases or drafting settlement contracts with open medical should carefully consider whether to reserve the employer's right to direct medical care, and contingency plans if the employer is no longer around.  

J Burrell
Atty:  Bowles, Platter