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Banks v. Springfield Park Care Center12/14/1998
nd decision. We, therefore, consider the findings and Conclusions of the Commission as including the ALJ's award. Brown v. Treasurer of Missouri, 795 S.W.2d 479, 482 (Mo. App. E.D. 1990). If there is sufficient competent and substantial evidence to support the award, we then determine if the award is against the overwhelming weight of the evidence. Davis v. Research Medical Center, 903 S.W.2d 557, 571 (Mo. App. W.D. 1995). In our review, we are mindful that we may not substitute our judgment on the weight of the evidence or on the credibility of witnesses for that of the Commission. Id. The Commission's interpretation and application of the law, however, are not binding on this Court and fall within our realm of independent review and correction. Id.
In its sole point on appeal, Employer contends that the Commission erred in awarding medical expenses and temporary disability benefits associated with the surgery performed by Dr. Jeffries "because [Employee] personally selected Dr. Jeffries and therefore assumed the expense of that treatment." It argues that this portion of the award is not supported by substantial evidence and that the Commission acted in excess of its powers in ordering such payment because the only substantial evidence indicated that Employee's attorney referred her to Dr. Jeffries; that Employee decided to undergo the surgery on her first visit to Dr. Jeffries before any notice was given to Employer; that Employee told others the day after she first saw Dr. Jeffries that she was going to have the surgery; and that shortly after seeing Dr. Jeffries, Employee started donating blood in order to have the surgery.
Section 287.140.1 provides, in pertinent part:In addition to all other compensation, 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.
In discussing section 287.140.1, the court in Blackwell v. Puritan-Bennett Corp., 901 S.W.2d 81, 85 (Mo. App. E.D. 1995), said:The intent of the statute is obvious. An employer is charged with the duty of providing the injured employee with medical care, but the employer is given control over the selection of the medical provider. It is only when the employer fails to do so that the employee is free to pick his own provider and assess those costs against his employer. Therefore, the employer is held liable for medical treatment procured by the employee only when the employer has notice that the employee needs treatment, or a demand is made on the employer to furnish medical treatment, and the employer refuses or fails to provide the needed treatment.
Employer cites Blackwell for the proposition that medical services rendered by a physician of the employee's choosing with no notice to the employer are to be at the expense of the employee. In Blackwell, the appellate court noted that the employer was not aware of the need for additional medical attention, and that the physician's services were rendered without any notice to the employer or request that the employer provide further medical treatment. 901 S.W.2d at 85. Therein lies the distinction from the instant case, however.
Here, Employee selected and was initially seen by Dr. Jeffries before any notice was provided to the Employer. Thereafter, however, Employer was furnished a copy of Dr. Jeffries' initial examination report, told that surgery had been scheduled, and asked if it woul
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