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Banks v. Springfield Park Care Center12/14/1998
ll require four units of blood for surgery. I would not do both an anterior and posterior approach due to the technical difficulty from the front.
The next day (December 21, 1994) Employee called the office of Dr. Showers, her personal physician. According to Dr. Showers' office notes the following occurred:[Employee] called & stated that Dr. Jeffries will do spinal surgery as soon as she gives four pts. of her own blood. She quit smoking today per his orders. He told her that she has bulging of the L3-L5 vertebrae - the L4 keeps slipping back and forth. The surgery will entail rod, plate +/or fusion. The surgeon will send us report per pt's request.
Employee apparently began giving her own blood in preparation for the surgery, a process that took four weeks. On January 13, 1995, Employee's attorney wrote Employer's counsel, enclosing a copy of Dr. Jeffries' report of December 20, 1994. The letter stated:As you can see there is a suggestion for surgery. I understand from [Employee] that the surgery is scheduled in February. We are making a request of your client to authorize this surgery and to provide payment for it. If you intend to do so, please confirm this for me and be in touch with Dr. Jeffries office to arrange this. If you do not intend to provide this, please notify me of this decision before January 29, 1995. Failure to hear from you by then will be construed as a denial of medical treatment.
Employer's attorney responded in a letter dated January 16, 1995: You state in your letter that [Employee] will commence medical treatment, potentially including surgery, if we do not respond to you by January 29, 1995. You are hereby advised that the Employer and Insurer consider your deadline to be arbitrary. You are further advised that the decision of your client to continue medical treatment in Columbia, Missouri under such a deadline shall be considered by the Employer and Insurer to be medical treatment which your client has personally sought, and at her own expense. The Employer has assumed responsibility for medical treatment in this claim and considers any relinquishment of that responsibility to be a most serious matter. The Employer will review these matters and attempt to assist Ms. Banks with a reasonable medical plan, given all the facts and circumstances. Your deadline, however, is merely a pretext in order that your client may seek the medical treatment she may prefer, conceivably for the sake of litigation.
Employee's attorney responded, stating in pertinent part:. . . we do need to know if the mployer is going to continue to accept responsibility for the medical treatment or is going to relinquish it. In any event, a sound opinion has been given which indicates treatment is needed and your client is being given the first opportunity to provide it. I will be happy to work with you, but I need to know whether or not your client wishes to provide the treatment which is suggested.
The record does not reflect any additional communication on behalf of Employer. Employee proceeded with the surgery by Dr. Jeffries on February 15, 1995 in Columbia, Missouri, thereby incurring the medical bills which are the subject of this appeal.
The Administrative Law Judge (the "ALJ") who heard Employee's claim concluded that Employer was responsible for the expense of the treatment by Dr. Jeffries. That decision was affirmed by the Commission. Employer now appeals.
In reviewing a worker's compensation award, we review the findings of the Commission and not those of the ALJ. Gordon v. Tri-State Motor Transit Co., 908 S.W.2d 849, 852 (Mo. App. S.D. 1995). Here, the Commission's award attached and incorporated the ALJ's award a
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