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.

                                         3
       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.

                                         4
          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).

                                                 5
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

                                        6
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,

                                         7
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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