Tomislav Bosnjak v. Kirchner Block & Brick, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 01-114961

Employee: Tomislav Bosnjak

Employer: Kirchner Block \& Brick, Inc.

Insurer: TIG Insurance Company

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

Date of Accident: May 11, 2001

Place and County of Accident: St. Louis County, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated October 17, 2005. The award and decision of Administrative Law Judge John Howard Percy, issued October 17, 2005, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $19^{\text {th }}$ day of June 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: May 11, 2001
5. State location where accident occurred or occupational disease was contracted: St. Louis County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Rotating and cleaning heavy molds
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Low back
14. Nature and extent of any permanent disability: 17 ½% permanent partial disability of the body referable to the low back
15. Compensation paid to-date for temporary disability: $1,286.08
16. Value necessary medical aid paid to date by employer/insurer? $7,586.00

Employee: Tomislav Bosnjak Injury No.: 01-114961

1. Value necessary medical aid not furnished by employer/insurer? $18,010.44
2. Employee’s average weekly wages: 522.47
3. Weekly compensation rate: 348.31 TTD/$314.26 PPD
4. Method wages computation: Stipulation

COMPENSATION PAYABLE

1. Amount of compensation payable: Unpaid medical expenses: 18,010.44 temporary total disability (due to underpayment) 405.50

70 weeks of permanent partial disability from Employer $\ 21,998.20

credit for advance payment on 4/19/05 < $\$ 21,998.20>

1. Second Injury Fund liability: Denied

TOTAL: \quad \ 18,415.94

1. Future requirements awarded: See findings

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Ray A. Gerritzen

A hearing in this proceeding along with Injury No 02-022819 was held on March 29, April 8, June 14 and September 12, 2005. Additional evidence was admitted on August 1 pursuant to motions filed by Employee. Employee also filed a Motion for Sanctions on April 18, 2005. All parties submitted proposed awards, the last of which was received on May 11, 2005 .

The parties stipulated that on or about May 11, 2001:

1.the employer and employee were operating under and subject to the provisions of the Missouri Workers' Compensation Law;

2.the employer's liability was insured by TIG Insurance Company;

3.the employee's average weekly wage was $\ 522.47;

4.the rate of compensation for temporary total disability was $\ 348.31 and the rate of compensation for permanent partial disability was $\ 314.26; and

5.the employee sustained an injury by accident arising out of and in the course of employee's employment occurring in St. Louis County, Missouri.

The parties further stipulated that:

1.the employer had notice of the injury and a claim for compensation was filed within the time prescribed by law;

2.compensation has been paid in the amount of $\ 1,206.08 representing $4-4 / 7$ weeks of benefits; and

3.employer/insurer owe the employee $\ 405.50 in back temporary total disability compensation due to an underpayment;

4.employer/insurer have paid $\ 7,586.00 in medical expenses; and

5.the employee sustained 17-1 / 2 % permanent partial disability of the body referable to the low back as a result of the work-related accident.

The issues to be resolved in this proceeding are:

1.whether employee is entitled pursuant to Section 287.140 Mo. Rev. Stat. (2000) to be reimbursed for any medical expenses, which he may have incurred in obtaining treatment for the work-related injury;

2.whether employee should be provided with any future medical treatment for the work-related injury;

3.the nature and extent of any permanent disability sustained by employee as a result of the work-related injury;

1. whether employee is entitled to costs under Section 287.560 Mo. Rev. Stat. (2000); and

5.whether and to what extent employee has sustained any additional permanent partial disability for which the Second Injury Fund would be liable as a result of the combination of any preexisting disability with the primary injury.

Employee is seeking reimbursement in this proceeding and in Injury No 02-022819 for

bill incurred for medical treatment for his low back by Dr. Anthony H. Guarino and Barnes-Jewish West County Hospital Pain Management Center, from February 11, 2003 through July 22, 2005 and for prescription medications purchased at Walgreen Drug Stores from September 27, 2002 through July 22, 2005. The bills are included in Claimant's Exhibits F, G, J, K, L, M, O, and Q. 111

Section 287.140.1 Mo. Rev. Stat. (2000) provides in 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 [the employee] 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.

While the employer has the right to select the provider of medical and other services, this right may be waived by the employer if the employer after notice of the injury, refuses or neglects to provide the necessary medical care. Shores v. General Motors Corp, 842 S.W.2d 929 (Mo. App. 1992); Sheehan v. Springfield Seed \& Floral, 733 S.W.2d 795 (Mo. App. 1987); Wiedower v. ACF Industries, Inc., 657 S.W.2d 71 (Mo. App. 1983); Hendricks v. Motor Freight Corp., 570 S.W.2d 702 (Mo. App. 1978). While an employer initially has the right to select the medical care provider, the employer may waive that right, by failing, neglecting or refusing to provide medical treatment after receiving notice of an injury. Under such circumstances the employee may make his or her own selection, procure the necessary treatment and have the reasonable costs thereof assessed against the employer. Wiedower at 74; Hendricks at 709. The employer may also consent affirmatively to the selection of a health care provider by the employee or consent inferentially by failing to object to the employee's selection after having knowledge of that selection. Hendricks at 709-710.

If, on the other hand, the employee selects his or her own treating doctor without notifying his or her employer of the need for treatment of a work-related injury or requesting that employer provide treatment, then the employee is not entitled to reimbursement of such expenses. Hawkins v. Emerson Elec. Co., 676 S.W.2d 872 (Mo. App. 1984); Anderson v. Parrish,

472 S.W.2d 452 (Mo. App. 1971). The court of appeals in Sheehan v. Springfield Seed \& Floral, supra, indicated that the foregoing rule assumes that the employee realizes that he or she has sustained a work-related injury or disability. "Where an employee does not know at the time that he or she receives medical treatment that he or she has suffered a compensable injury, and the employee contracts for medical services without the employer's knowledge, the employer is not relieved from liability for necessary medical services." Id. at 798.

If a claimant declines to accept treatment from physicians selected by the employer and seeks treatment from a physician of his or her own choice, then the employer will not be liable for the cost of such treatment, unless it is shown that the treatment is being furnished "in such manner that there is reasonable ground for believing that the life, health, or recovery of the employee is endangered thereby, ..." Stawizynski v. J.S. Alberici Const. Co., 936 S.W.2d 159, 164 (Mo. App. 1996); Roberts v. Consumers Market, 725 S.W.2d 652, 653 (Mo. App. 1987); Hawkins v. Emerson Elec. Co. at 880. If, after the treating physician selected by the employer has provided medical treatment and released the employee to return to work, the employee seeks additional treatment without notifying the employer that further treatment is needed, then the employee and not the employer is liable for the cost of such treatment. Blackwell v. Puritan-Bennett Corp., 901 S.W.2d 81, 85 (Mo. App. 1995).

If the employer/insurer discontinue treatment even though the employee needs further treatment to cure and relieve the effects of his or her injury, then the employer/insurer will be liable for the entire cost of such additional treatment to the extent the treatment is proved by the employee to be reasonably necessary to cure employee of the effects of the work related injury. Emert v. Ford Motor Company, 863 S.W.2d 629 (Mo. App. 1993); Wood v. Dierbergs Market, 843 S.W.2d 396 (Mo. App. 1992); see Herring v. Yellow Freight System, Inc., 914 S.W.2d 816, 822 (Mo. App. 1995).

The employee must prove that the medical care provided by the physician selected by the employee was reasonably necessary to cure and relieve the employee of the effects of the injury. Chambliss v. Lutheran Medical Center, 822 S.W.2d 926 (Mo. App. 1991); Jones v. Jefferson City School District 801 S.W.2d 484 (Mo. App. 1990); Roberts v. Consumers Market, 725 S.W.2d 652 (Mo. App. 1987); Bru