         IN THE MISSOURI COURT OF APPEALS
                 WESTERN DISTRICT

GARY R. PACE,                                )
                                             )
               Appellant,                    )
                                             )
vs.                                          )      WD77976
                                             )
CITY OF ST. JOSEPH,                          )      Opinion filed: April 21, 2015
                                             )
               Respondent.                   )


      APPEAL FROM THE CIRCUIT COURT OF BUCHANAN COUNTY, MISSOURI
               THE HONORABLE RANDALL R. JACKSON, JUDGE

                 Before Division Two: Lisa White Hardwick, Presiding Judge,
                    Victor C. Howard, Judge and Cynthia L. Martin, Judge

        Gary Pace brought a declaratory judgment action against the City of St. Joseph seeking to

determine the rights of the parties under a workers’ compensation award, specifically who has

the right to select Mr. Pace’s medical providers for his future care. On cross-motions for

summary judgment, the trial court entered summary judgment in favor of the City finding that

the award authorized the City to select Mr. Pace’s medical providers for his future care. On

appeal, Mr. Pace argues that the trial court misinterpreted the award and that under Missouri law,

the City permanently waived its statutory right to select his treating doctors. The judgment is

affirmed.
        Appellate review of the grant of summary judgment is de novo. ITT Commercial Fin.

Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary

judgment will be upheld on appeal if the movant is entitled to judgment as a matter of law and no

genuine issues of material fact exist. Id. at 377. The facts in this case are not disputed; the issue

is whether the City was entitled to judgment as a matter of law.

       In August 2011, the Labor and Industrial Relations Commission entered a final award of

workers’ compensation benefits for Mr. Pace for an injury he sustained in a workplace accident

on December 9, 2002. Under the section of the award entitled “Liability for Past Medical

Expenses,” the Commission found that Mr. Pace’s past medical care represented by medical bills

in the amount of $16,465.84 was reasonably necessary to cure and relieve him of the effects of

the workplace injury. It further found that the City had notice of Mr. Pace’s injuries and refused

to provide medical treatment and that the City should pay for Mr. Pace’s past medical bills. The

section of the award entitled “Liability for Future Medical Aid” included a finding that Mr. Pace

will need future medical care including chronic pain management.             The award provided,

“Employer is directed to authorize and furnish additional medical treatment to cure and relieve

Claimant from the effects of his December 9, 2002 work injury (Injury Number 02-134660), in

accordance with Section 287.140, RSMo.”

       The City appealed the Commission’s determination that Mr. Pace was entitled to

permanent and total disability benefits for the injury he sustained on December 9, 2009. It did

not raise any issues regarding its liability for future medical care. Mr. Pace did not appeal the

final award. This court affirmed the Commission’s final award in Pace v. City of St. Joseph, 367

S.W.3d 137 (Mo. App. W.D. 2012). Thereafter, Mr. Pace registered the award as a judgment in

the Circuit Court of Buchanan County pursuant to section 287.500, RSMo 2000.



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       When a dispute arose between the parties over who has the right to select the medical

providers for Mr. Pace’s future medical treatment, Mr. Pace filed a petition for declaratory

judgment seeking a determination on the issue. The parties filed cross-motions for summary

judgment. Mr. Pace asked the trial court to declare that the City had waived its right to select his

doctors and that he may select his own doctors for the medical care ordered in the award and

require the City to pay for the treatment. The City asked the trial court to interpret and enforce

the award in accordance with section 287.140 and declare that it has the right to select Mr.

Pace’s physicians for future medical care. The trial court granted the City’s motion for summary

judgment and denied Mr. Pace’s motion. It declared that under the award and section 287.140,

the City is authorized to select medical providers for Mr. Pace’s future care. This appeal by Mr.

Pace followed.

       In his two points on appeal, Mr. Pace argues that the trial court erred in granting

summary judgment in favor of the City.         He contends that under Missouri law, the City

permanently waived its statutory right to select his treating doctors when it refused to provide

medical treatment after he suffered his workplace injury and that permitting the City to select his

doctors now is inconsistent with the law on waiver. He further contends that the trial court

misinterpreted the final award because the award does not expressly restore the City’s right to

select and the ALJ and Commission did not have power to restore the right to select after the

City waived it. Finally, he argues that the award is ambiguous and should be interpreted as a

whole to mean that the City has a duty to provide medical care but not the right to select health

care providers. Mr. Pace’s arguments are addressed together.

       A workers’ compensation award adjudicates the rights of the parties as effectively as a

judgment of a court of law. Barry, Inc. v. Falk, 217 S.W.3d 317, 320 (Mo. App. W.D. 2007).



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“The general rules of construction for written instruments are used to construe court judgments.”

Schumacher v. Austin, 400 S.W.3d 364, 370 (Mo. App. W.D. 2013)(internal quotes and citation

omitted). “When the language of the judgment is plain and unambiguous there is no room for

construction or interpretation, and the effect thereof must be declared in the light of the literal

meaning of the language used.” Id. (internal quotes and citation omitted). Similarly, the primary

rule of statutory construction is to ascertain the intent of the legislature from the language used,

to give effect to that intent if possible, and to consider the words in their plain and ordinary

meaning. Stolov v. Jackson Co. Sch. Dist. C-1 of Hickman Mills, 408 S.W.3d 218, 225 (Mo.

App. W.D. 2013). “If a statute is clear and unambiguous, the court should apply the statute in

accordance with its plain and ordinary meaning and should not engage in statutory construction.”

Id.

       Regarding future medical care, the final award provided, “Employer is directed to

authorize and furnish additional medical treatment to cure and relieve Claimant from the effects

of his December 9, 2002 work injury (Injury Number 02-134660), in accordance with Section

287.140, RSMo.” This clear and unambiguous language directed the employer to furnish Mr.

Pace’s future medical treatment in compliance with section 287.140.             Section 287.140.1

provides, “[T]he employee shall receive and the employer shall provide such medical, surgical,

chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as

may reasonably be required after the injury or disability, to cure and relieve from the effects of

the injury.” Section 287.140.10 provides, “The employer shall have the right to select the

licensed treating physician, surgeon, chiropractic physician, or other health care provider.” The

clear and unambiguous language of section 287.140 charges an employer with the duty of

providing an injured employee with needed medical care but gives the employer control over the



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selection of a medical provider. Therefore, under the clear and unambiguous language of the

Commission’s award, the City has a duty to provide future medical treatment for Mr. Pace and

has the right to select the treating providers.

        Mr. Pace cites two cases, Schuster v. State Division of Employment Security, 972 S.W.2d

377 (Mo. App. E.D. 1998), and Balsamo v. Fisher Body Division-General Motors Corp., 481

S.W.2d 536 (Mo. App. 1972), in arguing that an employer’s waiver of its statutory right to select

an employee’s medical providers before an award is entered survives the award and is

permanent. In those cases, the Commission’s awards expressly awarded the employees future

nursing services provided by their wives and ordered the employers to pay for such services.

Schuster, 972 S.W.2d at 384; Balsamo, 481 S.W.2d at 538.           On direct appeals from the

Commission’s awards, the employers in the cases argued that the Commission’s awards violated

their rights to select the medical providers under section 287.140.10. Id. The appellate courts

found that the Commission’s awards were supported by evidence that the employers had waived

their rights to select the employees’ medical providers when they failed to provide needed care.

Schuster, 972 S.W.2d at 385; Balsamo, 481 S.W.2d at 539.

        The substance and procedural posture of Schuster and Balsamo are, however,

distinguishable from the instant case. Unlike in those cases, the Commission’s final award in

this case did not award Mr. Pace future medical treatment by providers of his choice based on the

City’s permanent waiver of its right to select the providers. The waiver of the right to select

medical providers was specifically limited to past medical expenses. The award did not address

waiver under the “Liability for Future Medical Aid” section. In discussing Mr. Pace’s future

medical care, the Commission specifically incorporated section 287.140, which includes

subsection 10 that gives the employer the right to select medical providers. The Commission’s



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award did not limit the City’s right to authorize and furnish future medical treatment as argued

by Mr. Pace.

       Furthermore, Schuster and Balsamo involved direct appeals addressing the propriety of

the Commission’s award. To the contrary, the instant case began as a declaratory judgment

action seeking a determination of the rights of the parties under the workers’ compensation

award, specifically who has the right to select Mr. Pace’s medical providers for his future care.

To the extent that Mr. Pace’s declaratory judgment action sought to rewrite the Commission’s

award to find that the City waived the right to select providers for Mr. Pace’s future care, the

action constituted an impermissible collateral attack upon the 2011 final award. As stated above,

a workers’ compensation award adjudicates the parties’ rights as effectively as a judgment.

Barry, 217 S.W.3d at 320. “Where a judgment is attacked in other ways than by proceedings in

the original action to have it vacated or reversed or modified or by a proceeding in equity to

prevent its enforcement, the attack is a collateral attack.” Id. (internal quotes and citation

omitted). “A judgment rendered by a court having jurisdiction of the parties and subject matter

is not open to collateral attack in respect of its validity or conclusiveness of the matters

adjudicated.” Id. (internal quotes and citation omitted). Specifically, a declaratory judgment

action “‘cannot be used as a subterfuge for, or for the veiled purpose of relitigating a question as

to which a former judgment is conclusive.’” Id. (quoting Cantrell v. City of Caruthersville, 267

S.W.2d 646, 648 (Mo. 1954)).

       The 2011 final award is, on its face, conclusive of the issue of who has the right to select

Mr. Pace’s medical providers for his future care. While the City appealed other aspects of the

award to this court, Mr. Pace did not file a cross-appeal and did not raise the issue of future

medical care on direct appeal. The award was affirmed on appeal in May 2012, and this court’s



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decision became final when the mandate issued in June 2012. See Amburn v. Aldridge, 296

S.W.3d 32, 33 (Mo. App. W.D. 2009)(an appellate court decision is considered final at the time

the mandate issued). All of Mr. Pace’s arguments on appeal based on waiver under the workers’

compensation law and Missouri law in general and the ALJ’s and Commission’s power to restore

the City’s right to select after the City’s waiver should have been raised on direct appeal of the

award. The trial court correctly determined and declared that, under the Commission’s final

award, the City is authorized to select medical providers for Mr. Pace’s future care. 1 The points

are denied.

         The summary judgment of the trial court is affirmed.




                                                       __________________________________________
                                                       VICTOR C. HOWARD, JUDGE

All concur.




1
  If the City fails in its duty to provide future medical care to Mr. Pace as directed in the final award, the workers’
compensation law provides him remedies. Section 287.140.2 allows determinations as to the propriety or
effectiveness of particular treatment provided by an employer. Noel v. ABB Combustion Eng’g, 383 S.W.3d 480,
484-85 (Mo. App. E.D. 2012). It provides that if the requirement to provide medical treatment is being furnished in
such a manner as to endanger the life, health, or recovery of the employee, the division or commission “may order a
change in the physician, surgeon, hospital or other requirement.” Mickey v. City Wide Maint., 996 S.W.2d 144, 148
(Mo. App. W.D. 1999)(quoting §287.140.2), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121
S.W.3d 220 (Mo. banc 2003). Furthermore, while an employer is given control over the selection of the employer’s
medical providers, if it is on notice that the employee needs treatment and fails or refuses to provide it, the employee
may select his own provider and hold the employer liable for the costs thereof. Martin v. Town and Country
Supermarkets, 220 S.W.3d 836, 844 (Mo. App. S.D. 2007).

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