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Banks v. Springfield Park Care Center12/14/1998
d provide treatment. Through Dr. Jeffries' report, Employer was informed that Employee continued to have severe pain in her lower back, right leg, and foot, as well as numbness and weakness in the right leg, and that her physical activities continued to be limited.
The ALJ found that Employee informed Employer that further treatment was recommended and gave Employer the opportunity to provide that treatment. The undisputed evidence supports that Conclusion. The ALJ also found that " he mployer could have directed the treatment with providers of their choosing if they wanted. They did not authorize any further treatment, so . . . they waived the right to direct this treatment and claimant was justified in seeking it on her own." Employer responded to the letter from Employee's attorney by saying, in part, that it would not comply with the request for a decision on payment of Dr. Jeffries' impending surgery by the deadline set by Employee, but that it would "review these matters and attempt to assist [Employee] with a reasonable medical plan, given all the facts and circumstances." It did not say when it would do so. More importantly, there was no evidence that it thereafter notified Employee of a desire for her to be examined by a doctor of its choosing before the impending surgery or took any action to provide treatment. This was despite the fact that it was notified more than one month before the scheduled surgery and responded that it would assist Employee with a reasonable medical plan.
Although Employer places great weight on the fact that Employee went to Dr. Jeffries and may have decided on the surgery before Employer was notified, the real question here is whether Employer had notice of the need for additional treatment and failed to provide it. The Commission found that it had that notice and that it failed to take the opportunity to provide additional treatment through physicians of its own choosing.
Anderson v. Parrish, 472 S.W.2d 452, 457 (Mo. App. K.C. 1971), at least implies that an employer can be held responsible for medical expenses incurred under such circumstances. In that case, the employer chose a physician who provided treatment to the employee. The employee, thereafter, without notice to the employer, selected another physician and obtained additional treatment. The Commission's decision to deny the allowance of those additional medical expenses was affirmed on appeal. In doing so, the court noted:Appellant admits that on his own responsibility he went to Dr. Carl Moore, his family physician. There is no evidence that after Dr. Moore's examination appellant ever made any demand or request for medical treatment or that respondents furnish or pay for the medical treatment Dr. Moore understood to provide. The Act gives the employee the right to employ his own physician at his own expense, and it is 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 and neglects to provide needed treatment, that the employer is held liable for the medical treatment procured by the employee. (Emphasis added).
Id. In the instant case, Employee requested that Employer provide and pay for additional medical treatment after Dr. Jeffries' initial examination and before the surgery was performed. Thereafter, Employer made no attempt to assist Employee with a reasonable medical plan or provide alternative treatment.
It appears to be undisputed that the surgery was successful in relieving some of Employee's symptoms which resulted from the injury in question. Section 287.140.1 generally provides that the employer is required to provide medical treat
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