ELIZABETH DOWNING, Employee-Respondent v. McDONALD'S SIRLOIN STOCKADE, Employer-Appellant. , 2014 Mo. App. LEXIS 41 ( 2014 )

ELIZABETH DOWNING, )
)
Employee-Respondent, )
)
vs. ) No. SD32683
)
McDONALD'S SIRLOIN STOCKADE, ) Filed: January 17, 2014
)
Employer-Appellant. )
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION
AFFIRMED
This appeal involves a workers' compensation claim filed by Elizabeth
Downing ("Employee") against McDonald's Sirloin Stockade, Inc. ("Employer").
The Labor and Industrial Relations Commission ("the Commission") awarded
compensation, and Employer appeals. Specifically, Employer claims the
Commission erred in making an award for past medical expenses because
Employer did not authorize the medical expenses. This argument is without
merit, and we affirm the Commission's award.
Standard of Review
"In reviewing a workers' compensation final award, 'we review the findings
and award of the Commission rather than those of the ALJ.'" Pruett v. Federal
Mogul Corp., 365 S.W.3d 296, 303 (Mo. App. S.D. 2012) (quoting Birdsong
v. Waste Mgmt., 147 S.W.3d 132, 137 (Mo. App. S.D. 2004)). Under Section
287.495, RSMo (2000), appellate review of the Commission's award is limited to
consideration of the following questions: (1) whether "the [C]ommission acted
without or in excess of its powers;" (2) whether "the award was procured by
fraud;" (3) whether "the facts found by the [C]ommission do not support the
award;" and (4) whether "there was not sufficient competent evidence in the
record to warrant the making of the award." § 287.495.1, RSMo (2000).
"Whether the award is supported by competent and substantial evidence is
judged by examining the evidence in the context of the whole record." Pruett,
365 S.W.3d at 303-04 (quoting Hampton v. Big Boy Steel Erection, 121
S.W.3d 220, 223 (Mo. banc 2003)). Furthermore, "we defer to the Commission
on issues involving the credibility of witnesses and the weight to be given to their
testimony." Id. at 304 (quoting Pavia v. Smitty's Supermarket, 118 S.W.3d
228, 234 (Mo. App. S.D. 2003)). Contrariwise, "[w]e independently review
questions of law." Martin v. Town and Country Supermarkets, 220
S.W.3d 836, 844 (Mo. App. S.D. 2007).
Factual and Procedural Background
Employee worked as a waitress for Employer from October 1985 until
October 2007. She first began to have back pain in 2005. In March 2006,
Employee sought treatment on her own from a chiropractor, Dr. Wayne Webb
("Dr. Webb"). Employee reported a constant, sharp pain in her hip and leg.
Employee also stated she thought the pain might be related to her work and that
her work duties aggravated her pain. As treatment progressed, Dr. Webb
determined an MRI was needed. Dr. Webb spoke with Employee about the need
for an MRI on at least two occasions in late April.
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In April or May 2006, Employee spoke with Employer's owner, Terry
McDonald ("Owner"). Owner suggested Employee seek treatment through
Employer's workers' compensation insurance. LuAnn Henderson ("Claims
Representative"), a senior claims representative for Employer's workers'
compensation insurance carrier, was notified of the claim around that time.
Employer referred Employee to Dr. Dennis Estep ("Dr. Estep"). Dr. Estep
examined Employee on May 12, 2006. Dr. Estep recommended Employee be
examined by a surgeon.
On May 18, 2006, Claims Representative spoke with Employer's assistant
manager, Jim Vaughn ("Assistant Manager"). She told him she did not believe
Employee's condition was compensable because (1) Employee waited so long to
report it and (2) Employee did not recount a specific injury. Claims
Representative told Assistant Manager she "would be contacting [Employee] to
get information then would be sending out a denial."
Employer subsequently referred Employee to Dr. Brian Ipsen ("Dr. Ipsen")
who examined Employee on June 13, 2006. During that visit, Employee reported
severe and intolerable right leg pain. Conservative treatment, including pain
medication, chiropractic care, and cortisone injections, had not provided relief.
Dr. Ipsen believed proceeding to surgery was reasonable and ordered an MRI to
assess the situation.
Claims Representative authorized payment for the MRI. The MRI was
performed on June 17, 2006. The MRI revealed disc degeneration at L5-S1 as
well as a large extrusion "causing impingement on the right S1 nerve root." Dr.
Ipsen scheduled surgery for June 23, 2006.
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There were three phone calls between Employee and Claims
Representative in which Employee requested permission to undergo the
scheduled surgery. Claims Representative finally told Employee the surgery was
not authorized because the company needed more information.
Employee took out a loan and proceeded to undergo surgery by Dr. Ipsen
on June 23, 2006, when Employee underwent a right L5-S1 microdiskectomy.
She experienced complications from the surgery, and on June 25, 2006, Dr.
Ipsen conducted a complete diskectomy. The total cost for these surgeries and
related medical treatment was $43,399.23. On August 11, 2006, Employee filed a
claim for compensation with the Division of Workers' Compensation ("the
Division").
On June 11, 2007, Employee underwent an independent medical
evaluation by Dr. Brent Koprivica ("Dr. Koprivica"). Dr. Koprivica reviewed
Employee's medical records and performed a physical examination. Dr.
Koprivica concluded (1) Employee's work for Employer was the prevailing factor
in causing Employee's herniated disc and (2) the surgeries were reasonable and
necessary to treat the herniated disc.
The Division held a hearing regarding Employee's claim for compensation.
Employee presented her own testimony, her medical records, and the opinion of
Dr. Koprivica. Employer presented no expert testimony. The Administrative
Law Judge ("ALJ") determined the condition arose out of and in the course of
employment and entered an award for (1) unpaid medical expenses for two
emergency room visits, (2) temporary total disability, and (3) permanent partial
disability. The ALJ did not make an award for the cost of the two surgeries.
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Employee sought review by the Commission. The Commission adopted
the ALJ's award and findings except with respect to the issue of past medical
expenses. The Commission modified the award to include coverage of past
medical expenses for the two surgeries and related medical treatment. Employer
appeals.
Discussion
In its sole point on appeal, Employer argues the facts found by the
Commission do not support the award of past medical benefits for the surgeries
because the medical expenses were not authorized and the treatment was not
needed on an emergency basis. This argument is without merit.
The portions of Section 287.1401 which are relevant to the present case
provide that:
1. . . . the 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. If the employee desires, he
shall have the right to select his own physician, surgeon, or other
such requirement at his own expense.
. . . [and]
10. The employer shall have the right to select the licensed treating
physician, surgeon, chiropractic physician, or other health care
provider[.]
§ 287.140. Furthermore, "[a]n employer's duty to provide statutorily-required
medical aid to an employee is absolute and unqualified." Martin, 220 S.W.3d at
844. That is, "[t]his statute requires an employer to provide an injured employee
medical care but allows the employer to select the medical provider." Pruett,
1
This and all subsequent statutory references are to RSMo Cum. Supp. (2013).
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365 S.W.3d at 307. Thus, "[a]n employer is held liable for independent medical
treatment incurred only when the employer has notice that the employee needs
treatment, or a demand is made on the employer to provide medical treatment,
and the employer refuses or fails to provide the needed treatment." Id. (quoting
Hayes v. Compton Ridge Campground, Inc., 135 S.W.3d 465 (Mo. App.
S.D. 2004)).
Section 287.140 has been interpreted to provide that where an employer
has refused requested treatment, the employer will be liable for medical
treatment obtained at the employee's own expense. Id. For example, in Pruett,
the claimant sustained a back injury and requested medical treatment from his
employer. Id. at 300. The employer sent the claimant to a doctor who
recommended an MRI, but the employer refused to authorize the MRI. Id. The
claimant sought additional treatment, and when the claim came before the
Commission, the Commission made an award for past medical treatment. Id. at
300-01. The employer appealed, and in one of its points on appeal, the employer
argued the Commission erred in awarding past medical benefits because the
employer had not authorized the medical treatment. Id. at 307. This Court
disagreed based on the claimant's testimony that before treatment he had
"'received a call from workers' compensation' and was told they had rejected any
additional medical treatment[.]" Id. at 308.
Here, similarly, Employee informed Employer of the need for surgery.
The recommendation and the surgery were both performed by the Employer-
authorized treating doctor. Employer had the right to select the treating
physician, and that is who treated the Employee. However, Claims
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Representative stated the surgery was not authorized because she needed
additional time to make her decision whether to deny the claim.
The medical evidence in the case showed the surgery was reasonable and
necessary in light of Employee's job related condition. Employer has never raised
a contention that additional investigation would have changed that
determination. Furthermore, the Commission found the condition was
compensable, and no claim of error is made with respect to that finding. Under
these circumstances, the Commission did not err in making an award for past
medical expenses to cover the two surgeries.
The authorities upon which Employer relies do not require a different
conclusion. Employer claims this case is similar to Anderson v. Parrish, 472
S.W.2d 452 (Mo. App. K.C.D. 1971), and Hayes, 135 S.W.3d 465. That claim
fails because those cases are factually distinguishable from the present case. In
each of those cases, the claimant did not notify the employer prior to seeking the
treatment for which he sought reimbursement. Anderson, 472 S.W.2d at 457;
Hayes, 135 S.W.3d at 471. Here, in contrast, Employee notified Employer of the
condition in April or May. Claims Representative spoke with Employer's
representatives and Employee throughout May while Employee's condition was
assessed. Furthermore, Claims Representative and Employer were notified of the
need for surgery prior to the surgery. This case is not similar to the cases
Employer cites.
In sum, the medical expenses in this case were necessary and reasonable
to relieve the effects of the condition. Employee notified Employer of the need
for treatment, and Employer refused to provide that treatment. Consequently,
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the Commission did not err in finding Employer liable for the cost of the past
medical treatment. Employer's sole point is denied.
Decision
The Commission's award is affirmed.
MARY W. SHEFFIELD, J. - OPINION AUTHOR
GARY W. LYNCH, J. - CONCURS
DON E. BURRELL, J. - CONCURS
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