Monday, January 18, 2021


A few years had passed since Lyman was awarded benefits for permanent and total disability from the commission. Lyman had sought treatment for issues stemming from the injury at issue in that workers’ compensation claim. In an effort to ensure that his old employer’s workers’ compensation Insurer would pay these expenses, Lyman filed a declaratory action with the circuit court for a determination of the Insurer’s liability to cover expenses for future medical expenses as was ordered in the final award. The Insurer argued that Lyman could not unilaterally seek treatment and that the Insurer had to approve any medical treatment in advance.

The issue before the court was who should determine what medical treatment Lyman should receive, the Insurer or Lyman. The circuit court found for employer and ruled that Lyman’s expenses for treatment that was not approved by Insurer was not covered by the workers’ compensation award.

As is clear from the § 287.140.10, the employer is the party who gets to direct what medical treatment the employee should receive. The statutes are clear that the insurer cannot direct the treatment. On the other hand, the statutes are equally clear an employee can only choose his/her own treatment when the employee has made a demand for treatment to the employer and the employer refuses or fails to act.

In this instance, Lyman’s employer was an LLC that was no longer in business. The real question, then, was who picks the claimants medical providers and treatment when the employer is unable to do so. The Court recognized this as a matter of first impression in Missouri.

The Court refused to provide, however, and remanded the case back to the trial court because no evidence had been entered that the employer was unable to pick providers for Lyman. Lyman and the Insurer both assumed that the employer could not, but they failed to present any proof that it could not.

The impact of this case is that it recognized a gap in the workers’ compensation law. The failing of this case is that the Court sidestepped the issue.