Missouri Court of Appeals Western District
STATE OF MISSOURI, EX REL., ) JEFF PETERS & JOHN NEWMAN, ) WD85719 consolidated with ) WD85777 Appellant-Respondents, ) v. ) OPINION FILED: ) SCOTT FITZPATRICK, ) August 29, 2023 TREASURER, STATE OF ) MISSOURI AND COLLEEN JOERN ) VETTER, DIRECTOR OF THE ) MISSOURI DIVISION OF ) WORKERS' COMPENSATION, ) ) Respondent-Appellants. )
Appeal from the Circuit Court of Cole County, Missouri The Honorable Daniel Green, Judge
Before Division Two: W. Douglas Thomson, Presiding Judge, Thomas N. Chapman, Judge, and Janet Sutton, Judge
Relator Jeff Peters appeals the judgment of the Cole County Circuit Court
denying his petition for writ of mandamus against Respondents Scott Fitzpatrick,
Treasurer of the State of Missouri, and Colleen Joern Vetter, Director of the
Missouri Division of Workers’ Compensation, seeking to compel payment of $1,142,169.57 from the Second Injury Fund (“Fund”).1 Respondents cross-appeal
from the judgment in favor of Relator John Newman, Peters’s attorney, issuing a
writ of mandamus ordering Respondents to pay Newman $230,332.50 for attorney
fees from the Fund. The judgment is affirmed in part and reversed in part, and the
writ of mandamus is quashed.
Factual and Procedural Background
On November 14, 2006, Peters suffered severe injuries in a motor vehicle
accident in the course of his employment. Peters filed a workers’ compensation
claim against both his employer and the Fund. His claim against the Fund was
based on allegations that his employer was uninsured and that the Fund was
responsible for his medical expenses under section 287.220.5. 2
An administrative law judge (“ALJ”) heard Peters’s claim on August 30,
2011.3 Two of the issues to be determined at the hearing were whether the Fund
1 As stipulated to by the parties, Respondent Director of the Missouri Division of Workers’ Compensation is charged with the statutory obligation to requisition warrants on Respondent Treasurer of the State of Missouri for the payment of all amounts payable for compensation and benefits out of the Fund. Such payments are issued by Respondent Treasurer of the State of Missouri. The Office of the Missouri Attorney General is the attorney and agent for Respondents, including regarding negotiations regarding payment or refusals to pay the requested payments. 2 All statutory references are to RSMo 2000 as supplemented through November 14, 2006, the date giving rise to Peters’s workers’ compensation claim, unless otherwise indicated. 3 The healthcare providers who provided care to Jeff Peters for the injuries sustained were not parties to the claim and were not present or represented at the hearing. They did not file
2 was liable for unpaid medical expenses due from an uninsured employer and what
were the reasonable charges for the unpaid medical bills. At the hearing, Peters
presented evidence of medical bills totaling $1,142,169.57. The Fund presented
evidence that Loma Linda University Medical Center had agreed to accept
$424,773.00 as payment in full for the outstanding amount due of $1,023,699.93.
On December 2, 2011, the ALJ issued her award (“Award”) finding Peters’s
injury compensable, that his employer was uninsured, and that his employer had
paid none of the medical bills at issue. The Award found that Peters incurred the
following medical bills as a result of the work injury:
Loma Linda Pathology $ 339.00 Mercy Air Services 13,661.07 California Department of Transportation 2,321.27 Loma Linda Group 948.00 Loma Linda Surgical Group 39,902.25 Loma Linda Orthopedic Group 39,396.00 Loma Linda Neurology Group 334.00 Loma Linda Physicians Group 737.05 Loma Linda Medical Center 1,023,699.93 Loma Linda Anesthesiology 20,735.00 Total $ 1,142,169.57
The Award found that the fair, reasonable, and necessary charges resulting from his
medical treatment was $1,142,169.57, which included the full amount originally
applications for direct payment to them for their treatment of Peters pursuant to 8 CSR 50- 2.030(2).
3 billed by Loma Linda University Medical Center of $1,023,699.93. The ALJ
explained that settlement negotiations between the parties for resolution of
outstanding medical bills were not evidence of fair, reasonable, and necessary
charges and that no evidence was presented that Peters did not remain responsible
for the full amount of his medical bills, which totaled $1,142,169.57, including
$1,023,699.93 billed by Loma Linda University Medical Center. The Award
further found:
Because the employer was uninsured, I find that the Second Injury Fund is liable for unpaid medical expenses incurred due to the injuries [Peters] sustained in his work-related accident of November 14, 2006. These medical bills total $1,142,169.57, as set forth above. I order the Second Injury Fund to pay these medical bills.
The Award allowed Newton’s attorney fees “in the amount of 25% of all payments
hereunder” and imposed “a lien on the proceeds until paid.” Finally, the Award
ordered that interest shall be paid as provided by law. No application for review or
appeal was filed, and the Award became final.
After the Award became final, the Attorney General’s Office, on behalf of
the Fund, advised that the Fund would not be able to pay the Award immediately
due to fund constraints. At the suggestion of the Attorney General’s Office, Peters
filed an application for judgment on the award in the Circuit Court of Greene
County under section 287.500. On July 31, 2012, the Greene County Circuit Court
4 entered judgment against the Treasurer of the State of Missouri (custodian of the
Fund) in the amount of $1,142,169.57, with interest of 10% per annum from
January 12, 2012 (“Greene County Judgment”). The Greene County Judgment
was not appealed and became final.
Thereafter, Peters and Newman sought payment of the Greene County
Judgment, specifically $1,142,169.57 in past medical expenses, interest of 10%,
and the 25% attorney fee lien on the total Award. Respondents did not pay Peters
any amount. In September and November 2013, Respondents paid from the Fund
nine of his ten medical providers the total of their billed amount less application of
Newman’s 25% attorney fee. Specifically, they paid $88,852.25 to the medical
providers and $29,617.39 directly to Newman. They also paid Loma Linda
University Medical Center $102,369.99 and in exchange, the Medical Center
executed a Release providing that the amount paid “satisf[ied] all liability of Jeff
Peters and the Fund to Loma Linda for medical bills and expenses relating to the
award dated December 2, 2011, from the Missouri Division of Workers’
Compensation and the work-related injury Jeff Peters sustained on November 14,
2006, in the State of California.” Respondents also paid Newman directly 25% of
the amount paid to Loma Linda University Medical Center ($25,592.50). In total,
Respondents paid $191,222.24 to Peters’s medical providers and $55,209.89 to
5 Newman. The payments made by Respondents did not include any amount for
interest. Peters and Newman did not consent to the payments to the medical
providers, to lower payments than set forth in the Greene County Judgment, or to
any alteration of the Award’s or Greene County Judgment’s award, fees, or liens.
On October 9, 2019, Relators filed the instant action requesting a writ of
mandamus ordering Respondents to pay the outstanding judgment entered in their
favor against the Fund in the amount of $1,142,169.57 plus interest as required by
section 287.220.4 They alleged that such amount was the due and owing obligation
set forth in the Award and Greene County Judgment in favor of Peters, and in favor
of Newman for his statutory attorney lien, against the Fund.
4 The parties stipulated that Relators could not bring the claim until this time “given the statutory priority payment schedule set forth by the legislature [in section 287.220.15, Cum. Supp. 2014] and the progress of payments of those claims higher in the statutory hierarchy.” Section 287.220.15 provides: The division shall pay any liabilities of the fund in the following priority: (1) Expenses related to the legal defense of the fund under subsection 4 of this section; (2) Permanent total disability awards in the order in which claims are settled or finally adjudicated; (3) Permanent partial disability awards in the order in which such claims are settled or finally adjudicated; (4) Medical expenses incurred prior to July 1, 2012, under subsection 7 of this section; and (5) Interest on unpaid awards.
6 The parties submitted a joint stipulation of undisputed facts to the trial court.
They filed competing motions for summary judgment and statements of
uncontroverted material facts, which incorporated the joint stipulation.
On September 20, 2022, the trial court entered summary judgment in favor
of Respondents on Peters’s claim that a writ of mandamus should issue ordering
them to pay him $1,142,169.57. It also entered summary judgment in favor of
Newman on his claim for attorney fees of 25% of $1,142,169.57. It ordered by
Writ of Mandamus that Respondents pay Newman $230,332.50 for attorney fees
from the Fund ($285,542.39 (25% of $1,142,169.57) minus $55,209.89 previously
paid to Newman).
This appeal by Peters and cross-appeal by Respondents followed.
Standard of Review
Appellate review of the trial court’s grant or refusal of a writ of mandamus
is for an abuse of discretion. State ex rel. Deckard v. Schmitt, 532 S.W.3d 170, 174
(Mo. App. W.D. 2017). “The trial court necessarily abuses its discretion where its
ruling is based on an erroneous interpretation of the law.” Id. (internal quotes and
citation omitted). The trial court’s conclusions of law are reviewed de novo. Id.
Appellate review of the trial court’s grant of summary judgment is de novo.
Green v. Fotoohighiam, 606 S.W.3d 113, 115 (Mo. banc 2020). The appellate
7 court applies the same criteria as the trial court in determining whether summary
judgment was proper. Id. Summary judgment is proper if the moving party is
entitled to judgment as a matter of law and no genuine issues of material fact exist.
Id. Facts contained in affidavits or otherwise in support a party’s summary
judgment motion are accepted as true unless contradicted by the non-moving
party’s response to the motion. Id. “[T]he non-movant must support denials with
specific references to discovery, exhibits, or affidavits demonstrating a genuine
factual issue for trial.” Id. at 116 (internal quotes and citation omitted). The record
is reviewed in the light most favorable to the party against whom judgment was
entered, and that party is entitled to the benefit of all reasonable inferences that
may be drawn from the evidence. Id.
Relator Peters’s Appeal
In his sole point on appeal, Peters challenges the trial court’s denial of his
petition for writ of mandamus. He argues that the trial court’s ruling
impermissibly allowed Respondents to collaterally attack the Green County
Judgment and improperly allowed Respondents to pay third-party strangers to the
judgment (the medical providers) rather than paying to him the judgment and
interest ordered.
8 Mandamus is an equitable remedy. State ex rel. Vescovo v. Clay Co., 589
S.W.3d 575, 589 n.14 (Mo. App. W.D. 2019). Its purpose is to compel the
performance of a ministerial duty that one charged with the duty has refused to
perform. BG Olive & Graeser, LLC v. City of Creve Coeur, 658 S.W.3d 44, 47
(Mo. banc 2022); Deckard, 532 S.W.3d at 174. “A ministerial duty is a duty of a
clerical nature which a public officer is required to perform upon a given state of
facts, or in a prescribed manner, in obedience to the mandate of legal authority,
without regard to his own judgment or opinion concerning the propriety of the act
to be performed.” Curtis v. Mo. Democratic Party, 548 S.W.3d 909, 915 (Mo.
banc 2018) (internal quotes, citation, and emphasis omitted). “Mandamus does not
issue except in cases where the ministerial duty sought to be coerced is definite,
arising under conditions admitted or proved and imposed by law.” Furlong Cos.,
Inc. v. City of Kansas City, 189 S.W.3d 157, 166 (Mo. banc 2006). The purpose of
mandamus is to enforce, not establish, a claim or right. Vinson v. Mo. Comm’n on
Human Rights, 622 S.W.3d 218, 222 (Mo. App. E.D. 2021). “For a court to issue
a writ of mandamus, there must be an existing, clear, unconditional, legal right in
relator, and a corresponding present, imperative, unconditional duty upon the part
of respondent, and a default by respondent therein.” BG Olive & Graeser, 658
S.W.3d at 47. “A writ of mandamus is appropriate where it is necessary to prevent
9 great injury and injustice.” Deckard, 532 S.W.3d at 174 (internal quotes and
citation omitted).
Peters argues that because Respondents did not appeal the Greene County
Judgment, which entered judgment in his favor and against the Fund in the amount
of $1,142,169.57 with interest, it was final and binding on them. He asserts that
Respondents’ claim of satisfaction in the mandamus proceeding (by the Fund’s
direct payments to the medical providers) constituted an impermissible collateral
attack on the Green County Judgment.
A collateral attack is “an attempt to impeach a judgment in a proceeding not
instituted for the express purpose of annulling the judgment.” Mandacina v.
Pompey, 634 S.W.3d 631, 645 (Mo. App. W.D. 2021) (internal quotes and citation
omitted). Generally, “a judgment rendered by a court having jurisdiction of the
parties and the subject matter, unless reversed or annulled in some proper
proceeding, is not open to contradiction or impeachment in respect to its validity or
binding effect in any collateral proceeding.” Id. (internal quotes and citation
omitted). “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.; Barry, Inc.
10 v. Falk, 217 S.W.3d 317, 320 (Mo. App. W.D. 2007) (internal quotes and citations
omitted, emphasis added).
“Since an execution may not be run against the property of a…political sub-
division of the State…the only other procedure available to a judgment creditor to
enable him to collect his judgment is for a court of competent jurisdiction to issue
its writ of mandamus….” State ex rel. Hufft v. Knight, 121 S.W.2d 762, 764 (Mo.
App. 1938). Thus, “the preferred means to collect money clearly owed by the state
is mandamus.” Otte v. Mo. State Treasurer, 141 S.W.3d 74, 76 n.3 (Mo. App. E.D.
2004). A mandamus proceeding in such a case “is an ancillary proceeding to the
main suit and when so employed is not a new suit, but simply process essential to
jurisdiction.” Hufft, 121 S.W.2d at 764. It is a means of enforcing the collection of
a judgment against the State or political subdivision thereof and is the legal
equivalent of an execution upon a judgment. Id.
In this way, mandamus is analogous to a special order to enforce a judgment
in an appropriate manner authorized by law. “Such special orders encompass
orders in special proceedings attacking or aiding the enforcement of the judgment
after it has become final in the action in which it was rendered.” All Star Awards
& AD Specialties, Inc. v. HALO Branded Sols., No. WD85491, 2023 WL 4566602,
at *7 (Mo. App. W.D. July 18, 2023) (internal quotes and citations omitted).
11 “Missouri courts have treated a wide array of post-judgment rulings as ‘special
orders after final judgment’ which are appealable under § 512.020(5)—without
ever suggesting that such orders improperly amended the judgment.” Id. “For
example, a circuit court may enter a ‘special order after judgment’ to decide a
motion under Rule 74.11(c) seeking a declaration that the judgment has been
satisfied.” Id. “Such rulings inevitably require the circuit court to resolve
disputes…as to the extent of the judgment debtor’s liability on the judgment.” Id.
The proceedings are not collateral attacks on the judgment. They do not attempt to
impeach the judgment with respect to its validity or binding effect but to oppose or
aid in enforcement of the judgment. See, e.g., Id. at *8 (trial court’s judgment
holding that plaintiff forfeited its right to recover post-judgment interest awarded
to it in original judgment when it unsuccessfully appealed the adequacy of the
punitive damages awarded in original judgment was not an improper, substantive
modification of the original judgment but a special order after final judgment
resolving the parties’ dispute concerning enforcement of the original judgment in a
manner authorized by law—specifically the amount of post-judgment interest
owing on the original judgment).
In the case of a proceeding in mandamus to enforce a judgment against the
State or political subdivision thereof, the court may look beyond the bare language
12 of the judgment, to the basis of the judgment, to determine how to enforce it. See,
e.g., State ex rel. Pullum v. Consol. Sch. Dist. No. 5 of Stoddard Co., 233 S.W.2d
702, 705-06 (Mo. 1950) (in enforcing judgment debt based on warrants issued by
school district in payment of services of school teacher, court looked behind
judgment, which provided no preference as to payment from the school district’s
fund, to warrants themselves, which were expressly payable out of the school
district’s funds). This is consistent with the procedure set out in the workers’
compensation law to enforce awards. “The final award of the commission shall be
conclusive and binding unless either party to the dispute shall, within thirty days
from the date of the final award, appeal the award to the appellate court.” §
287.495.1. “A Workers’ Compensation award adjudicates the rights of the parties
as effectively as a judgment of a court of law….” Barry, 217 S.W.3d at 320.
While the final award in a workers’ compensation case is an adjudication of the
parties’ rights, only a court can enforce an award. Baxi v. United Techs. Auto.
Corp., 122 S.W.3d 92, 96 (Mo. App. E.D. 2003). “Section 287.500 authorizes the
trial court to enter a judgment on a final award as if it were an original judgment of
the court.” Id. It affords the means by which a final award becomes enforceable.
Id. Section 287.500 provides, in pertinent part:
Any party in interest may file in the circuit court of the county in which the accident occurred, a certified copy of a memorandum of
13 agreement approved by the division or by the commission or of an order or decision of the division or the commission, or of an award of the division or of the commission from which an application for review or from which an appeal has not been taken, whereupon said court shall render judgment in accordance therewith and notify the parties. Such judgment shall have the same effect and all proceedings in relation thereto shall thereafter be the same as though said judgment were a final judgment which has been rendered in a suit duly heard and determined by said court.
“Although section 287.500 authorizes a circuit court to enter a judgment on a final
workers’ compensation award as if it were an original judgment of the court, the
statute affords no discretion to the court in entering a judgment.” State ex rel. ISP
Minerals, Inc. v. Labor & Indus. Relations Comm’n, 465 S.W.3d 471, 476-77 (Mo.
banc 2015). See also Carter v. Treasurer of the State of Mo. as Custodian of the
Second Inj. Fund, 506 S.W.3d 373, 376 (Mo. App. W.D. 2016). “A section
287.500 action is purely ministerial as it does not involve the merits of the award
and the court does not determine any outstanding factual issues.” ISP Minerals,
465 S.W.3d at 477. See also Carter, 506 S.W.3d at 376. A circuit court, therefore,
may only enter a judgment that is in accordance with the final award. Roller v.
Steelman, 297 S.W.3d 128, 134 (Mo. App. W.D. 2009). The obligations imposed
in a workers’ compensation case are established in the final award. Johnston v.
Saladino Mech. and Cincinnati Ins. Co., 504 S.W.3d 138, 140 (Mo. App. W.D.
2016).
14 The ALJ’s Award in this case adjudicated the rights of the parties in this
workers’ compensation case. Barry, 217 S.W.3d at 320. When it was not
appealed, the Award became conclusive and binding on them. § 287.495.1. Entry
of the Greene County Judgment under section 287.500 provided the means by
which the Award became enforceable. Baxi, 122 S.W.3d at 96. Entry of the
judgment was purely ministerial and did not involve the merits of the Award. ISP
Minerals, 465 S.W.3d at 477. The Greene County Judgment was entered in
accordance with the Award as if the Award were an original judgment of the court.
§ 287.500; ISP Minerals, 465 S.W.3d at 476-77.
Peters sought the equitable remedy of mandamus to compel the performance
of Respondents’ ministerial duty to pay the Award. In response to his petition,
Respondents did not deny the binding force of the Award or the Greene County
Judgment or attack their validity. Rather, Respondents asserted that the Award and
Greene County Judgment were satisfied by the Fund’s payments to Peters’s
medical providers. Respondents’ position in the mandamus proceeding to prevent
the judgment’s enforcement was not a collateral attack. Mandacina, 634 S.W.3d at
645; Cf. Barry, Inc., 217 S.W.3d at 321 (where employer and insurer did not appeal
workers’ compensation award that awarded weekly death benefits to employee’s
wife and children without any cap or limitation and the award became final,
15 employer and insurer’s declaratory judgment action alleging that a statutory cap on
the death benefits should have been applied was an impermissible collateral attack
on the final award, which adjudicated the rights of the parties as effectively as
judgment of the court of law).
Furthermore, the trial court did not err in granting summary judgment in
favor of Respondents because the Fund fully paid and satisfied the Award. Chapter
287 requires that all employers (as defined in the chapter) carry insurance under
the Workers’ Compensation Law. § 287.280; Higgins v. Treasurer of State of Mo.,
140 S.W.3d 94, 98 (Mo. App. W.D. 2004); Mann v. Varney Constr., 23 S.W.3d 231,
233 (Mo. App. E.D. 2000). The Fund receives its funding from insurers and
employers who comply with the law. Higgins, 140 S.W.3d at 98; Mann, 23 S.W.3d
at 233. Under section 287.220.5, the Fund has limited liability to cover those
employers who fail to provide workers’ compensation insurance as required by
law. Higgins, 140 S.W.3d at 98. It provides, in pertinent part:
If an employer fails to insure or self-insure as required in section 287.280, funds from the second injury fund may be withdrawn to cover the fair, reasonable, and necessary expenses to cure and relieve the effects of the injury or disability of an injured employee in the employ of an uninsured employer….
§ 287.220.5. Section 287.220.5 does not direct the manner in which funds
withdrawn from the Fund are to be paid. Wilmeth v. TMI, Inc., 26 S.W.3d 476, 484
16 (Mo. App. S.D. 2000), overruled on other grounds by Hampton v. Big Boy Steel
Erection, 121 S.W.3d 220, 225 (Mo. banc 2003).
The Award, on its face, was conclusive of the obligations of the Fund.
Johnston, 504 S.W.3d at 140. The Award found that Peters suffered a compensable
work injury, that his employer was uninsured, and that his employer had paid none
of his medical bills. It further found that Peters incurred $1,142,169.57 in medical
bills (setting out the specific list of medical bills) as a result of the work injury and
that that amount was the fair, reasonable, and necessary charges resulting from his
medical treatment. Finally, the Award provided:
Because the employer is uninsured, I find that the Second Injury Fund is liable for unpaid medical expenses incurred due to the injuries the claimant sustained in his work-related accident of November 14, 2006. These medical bills total $1,142,169.57, as set forth above. I order the Second Injury Fund to pay these medical bills.
The Fund paid the full billed amounts of nine of ten of Peters’s providers—
Loma Linda Pathology, Mercy Air Services, California Department of
Transportation, Loma Linda Group, Loma Linda Surgical Group, Loma Linda
Orthopedic Group, Loma Linda Neurology Group, Loma Linda Physicians Group,
and Loma Linda Anesthesiology—less Newman’s 25% attorney fees paid directly
to him. The Fund also paid Loma Linda University Medical Center $102,369.99
for the medical bills incurred by Peters, rather than the full billed amount of
17 $1,023,699.93, in exchange for the provider fully releasing Peters and the Fund
from “all liability…for medical bills and expenses relating to the award dated
December 2, 2011.” It directly paid Newman $25,592.50 (25% of the amount paid
to the Medical Center).
Peters did not dispute that the Fund paid these medical bills. There was also
no genuine dispute that Loma Linda University Medical Center released Peters from
liability. 5 Pursuant to the Award, and consistent with section 287.220.5, the Fund
paid Peters’s fair, reasonable, and necessary medical expenses, and he was released
from all liability for them. The Fund made the payments in compliance with, and in
satisfaction of, the Award. The Award ordered the Fund “to pay these medical bills.”
The Award did not indicate that the Fund was not permitted to negotiate the existing
5 In his response to Respondents’ statement of uncontroverted facts, Peters denied Respondents’ averment that in exchange for the reduced payment, the Medical Center released all liability of Peters and the Fund to it for medical bills and expenses relating to the December 2, 2011 award. He asserted that under the agreement, the Medical Center and the Fund released and forever discharged each other but not Peters himself. However, the agreement, which was attached to Respondents’ statement of uncontroverted material facts, specifically provided,
The Treasurer agrees to pay and Loma Linda [University Medical Center] agrees to accept $102,369.99 to satisfy all liability of Jeff Peters and the Fund to Loma Linda for medical bills and expenses relating to the award dated December 2, 2011, from the Missouri Division of Workers’ Compensation and the work-related injury Jeff Peters sustained on November 14, 2006, in the State of California.
Peters did not otherwise support his denial with specific references to discovery, exhibits, or affidavits demonstrating a genuine issue for trial. Green, 606 S.W.3d at 116. There was no genuine issue of material fact regarding whether the Medical Center released Peters from liability for the medical bills related to his work-related injury.
18 unpaid medical bills. The Award did not order the Fund to pay any amount of
medical bills directly to Peters.
Such was not the case in Wilmeth v. TMI, Inc., 26 S.W.3d 476 (Mo. App. S.D.
2000), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121
S.W.3d 220 (Mo. banc 2003). In that case, the workers’ compensation award
provided, “Accordingly, the employer, [TMI,] and the Second Injury Fund are order
to pay to the claimant the sum of $194,119.95, representing past medical care and
expenses incurred.” Id. at 483 (emphasis added). The Wilmeth court upheld the
explicit instruction to pay the claimant directly, rather than the medical providers,
because section 287.220.5 does not direct the manner in which funds withdrawn
from the Fund are to be paid. Id. at 484. Absent express instructions in an award,
section 287.220.5 allows the Fund to withdraw and pay funds in any manner. Id.
Unlike in Wilmeth, the Award in this case never explicitly ordered the Fund to
pay Peters directly, rather it specifically instructed the Fund “to pay these medical
bills.” While the Award could have ordered the Fund to pay the full amount of the
medical bills directly to Peters, it did not. By paying his medical providers directly,
the Fund fully complied with and satisfied the Award’s directive.
To allow Peters to recover the full cost of his medical bills from the Fund in
this case would result in an impermissible windfall to him. Under the plain
19 language of section 287.220.5, the Fund is only liable to cover the fair, reasonable,
and necessary expenses of an injured employee in the employ of an uninsured
employer. “The clear language of [the statute] expresses the legislature’s intent to
limit the liability of the [Fund] for employees who are not covered by insurance as
required by law.” Mann, 23 S.W.3d at 233. The statute does not provide for any
benefit payments to an employee of an uninsured employer. Id. It provides that
only an employee’s actual expenses be paid by the Fund. Id. It is against public
policy to allow an employee to recover a windfall from the Fund when his
employer had not carried insurance and made insurance contributions as required
under the law. Hood v. Menech, 658 S.W.3d 178, 186 n.6 (Mo. App. E.D. 2022);
Mann, 23 S.W.3d at 234. “[A]n employee should only be compensated for the
employee’s actual expenses as a result of the employee’s injury when the employer
is uninsured.” Mann, 23 S.W.3d at 233.
Here, the Fund paid Peters’s medical bills. Peters never claimed or
presented evidence that he personally paid any medical bills or that any medical
providers sought payment from him. Peters incurred no actual expenses. Any
payment to him from the Fund would not go “to cure and relieve the effects of the
injury.” § 287.220.5. Peters was not entitled to compensation from the Fund for
his medical bills. See Phillips v. Par Elec. Contractors, 92 S.W.3d 278, 286-89
20 (Mo. App. W.D. 2002), overruled on other grounds by Hampton v. Big Boy Steel
Erection, 121 S.W.3d 220 (Mo. banc 2003) (where the medical bills of an
employee of a technically “uninsured” employer were already paid and discharged
by employer’s liability insurance carrier, employee was not entitled to monetary
award from the Fund under section 287.220.5 because “any payment by [the Fund]
to [employee] would be superfluous and unnecessary because it would not go to
‘cure and relieve the effects of the injury or disability of an injured employee.’”);
Mann, 23 S.W.3d at 233-34 (where employee of uninsured employer was only
liable for $19,547.50 paid by Medicaid, payment from the Fund to employee of the
full amount of his medical bills ($130,085.13) would constitute a windfall and be
contrary to the language and intent of section 287.220.5).
Furthermore, Peters was also not entitled to any interest. As explained
above, the Fund satisfied the Award and owed nothing more to Peters.
The trial court did not err in denying Peters’s petition for writ of mandamus
because the Fund fully paid and satisfied the Award.
The point is denied.
Respondents’ Cross-Appeal
In Respondents’ cross-appeal, they contend that the trial court erred in
granting Newman’s writ of mandamus ordering them to pay him an additional
21 $230,332.50 for attorney fees from the Fund. Respondents contend that the Award
only entitled Newman to attorney fees on the proceeds paid to satisfy the Award.
In granting the writ of mandamus ordering the Fund to pay Newman an
additional $230,332.50, the trial court reasoned that Newman’s attorney fees
should be calculated as a percentage of the total amount billed by all of the medical
providers ($1,142,169.57 x 25%) or $285,542.39. Because Newman had
previously been paid $55,209.89 by the Fund, he was entitled to the additional
amount. This was erroneous, however, under the plain language of the Award and
section 287.220.5.
As discussed above in Peters’s appeal, under the plain language of section
287.220.5, the Fund has limited liability to employees who are not covered by
insurance as required by law. Mann, 23 S.W.3d at 233. The statute provides that
only an employee’s actual expenses be paid by the Fund. Id. It does not direct the
manner in which funds withdrawn from the Fund are to be paid. Wilmeth, 26
S.W.3d at 484. Moreover “an employee of an uninsured employer should not
receive a windfall from the Second Injury Fund on account of his employer’s
failure to carry insurance, as required under the law.” Hood, 658 S.W.3d at 186 n.6
(citing Mann, 23 S.W.3d at 233-34).
22 The Award ordered the Fund to pay Peters’s medical bills with no specific
instruction to pay Peters directly. It further awarded Newton attorney fees “in the
amount of 25% of all payments hereunder” and imposed “a lien on the proceeds
until paid.” (emphasis added). Under the plain language of the Award, Newman
was entitled to attorney fees on the proceeds paid to satisfy the Award.
In compliance with the Award, the Fund paid Newman 25% of the full
amount of the medical bills paid by the Fund to Loma Linda Pathology, Mercy Air
Services, California Department of Transportation, Loma Linda Group, Loma
Linda Surgical Group, Loma Linda Orthopedic Group, Loma Linda Neurology
Group, Loma Linda Physicians Group, and Loma Linda Anesthesiology. The Fund
also paid Newman 25%, or $25,592.50, of the proceeds paid to Loma Linda
University Medical Center, which were accepted by the Medical Center as full
payment. Accordingly, the Fund paid Newman everything he was due under the
Award, i.e., 25% of all proceeds paid under the Award. Any additional payment to
Newman would result in a windfall contrary to the language and intent of section
287.220.5. The trial court erred in granting Newman a writ of mandamus ordering
Respondents to pay additional attorney fees.
The point is granted.
23 Conclusion
The trial court’s judgment denying Peters’s petition for writ of mandamus is
affirmed. The judgment granting Newman a writ of mandamus ordering
Respondents to pay additional attorney fees is reversed, and the writ of mandamus
is quashed.
___________________________________ Thomas N. Chapman, Judge
All concur.