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Pierce v. Zurich Am. Ins. Co.

Court of Appeals of Missouri, Western District, Third Division

September 9, 2014

FRANK PIERCE, Appellant,
v.
ZURICH AMERICAN INSURANCE COMPANY, Respondent

Page 209

APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI. The Honorable John M. Torrence, Judge.

Jerrold Kenter, for Appellant.

Larry D. Fields, for Respondent.

Before Division Three: Gary D. Witt, Presiding, Judge, Joseph M. Ellis, Judge and Thomas H. Newton, Judge. All concur.

OPINION

Joseph M. Ellis, Judge

Page 210

Appellant Frank E. Pierce appeals from a judgment entered by the Circuit Court of Jackson County dismissing his petition for equitable relief against Respondent Zurich American Insurance Company. The trial court granted Respondent's motion to dismiss on the basis that the Division of Workers' Compensation (" the Division" ) had exclusive jurisdiction over the subject matter of this case. For the following reasons, the trial court's judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

In 2009, Appellant sustained a knee injury while working for Bedrock Inc., d/b/a Tri-State Motors (" Employer" ).[1] Appellant subsequently filed a workers' compensation claim against Employer. Respondent was Employer's workers' compensation insurer. Appellant visited the authorized treating physician selected by Respondent and eventually underwent two knee surgeries. In 2010, the authorized treating physician opined that Appellant would ultimately need a total knee replacement due to pre-existing arthritis, not the 2009 work-related injury. An orthopedic surgeon selected by Appellant's attorneys, however, opined that the need for a total knee replacement resulted from the 2009 work-related injury.

In May 2012, Appellant, Respondent, and Employer settled Appellant's workers' compensation claim by entering into a stipulation for compromise settlement (" the Settlement Agreement" ) pursuant to § 287.390.1.[2] The parties agreed to a lump sum settlement of $17,933.93 " based upon [an] approximate disability of 26% of the knee." The Settlement Agreement also includes a handwritten provision stating that " medical remains open for 1 (one) year from the date this stip. is approved." The Settlement Agreement further states that Appellant understands that by entering into the Settlement Agreement, " except as provided by Section 287.140.8, RSMo, [Appellant] is forever closing out this claim under the Missouri Workers' Compensation Law; [and] that [Appellant] will receive no further compensation or medical aid by reason of this accident/disease[.]" The Settlement Agreement also releases Respondent from all liability for the accident upon approval of the Settlement Agreement by an administrative law judge (" ALJ" ). An ALJ approved the Settlement Agreement on May 4, 2012.

In June 2012, Appellant sent a demand to Respondent for approval of knee replacement surgery on the basis that the surgery was covered by the handwritten provision stating that medical would remain open for one year following the Settlement Agreement. Respondent sent him back to the authorized treating physician, who again opined that the need for a total

Page 211

knee replacement was not the result of the 2009 work-related injury. Respondent then denied Appellant's request for knee replacement surgery.

On May 24, 2013, Appellant filed a two-count petition for equitable relief against Respondent requesting a declaratory judgment and seeking specific performance of the Settlement Agreement. In Count I, Appellant alleges that Respondent violated ยง 287.128.3(6) because Respondent knowingly made fraudulent and material misrepresentations for the purpose of denying him the medical benefits contemplated by the Settlement Agreement in that Respondent sent him back to the authorized treating physician that had already opined that the work-related injury did not cause the need for the knee replacement. Thus, Appellant contends that ...


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