Stacey Deane v. Elder Custom Homes

(Affirming Amended Award and Decision of Administrative Law Judge by Supplemental Opinion)

Injury No.: 02-120477

Employee: Stacey Deane

Employer: Elder Custom Homes

Insurer: Missouri Employers Mutual Insurance Company

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. We have reviewed the evidence, read the parties' briefs, heard the parties' arguments, and considered the whole record. Pursuant to $\S 286.090$ RSMo, the Commission affirms the amended award and decision of the administrative law judge dated June 3, 2011, with this supplemental opinion. The Commission adopts the findings, conclusions, decision, and amended award of the administrative law judge to the extent they are not inconsistent with the supplemental opinion set forth below.

Employee's argument that employer "waived" its right to direct treatment under § 287.140 Employee seeks an order from this Commission that will allow him to go to any doctor he chooses and pursue his own future course of treatment at employer's expense. Section 287.140 RSMo provides, in relevant part, as follows:

1. 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. ...
2. The employer shall have the right to select the licensed treating physician, surgeon, chiropractic physician, or other health care provider; provided, however, that such physicians, surgeons or other health care providers shall offer only those services authorized within the scope of their licenses.

The foregoing language charges employer with the duty to "provide" employee's treatment and gives employer control over the selection of a medical provider. Blackwell v. Puritan-Bennett Corp., 901 S.W.2d 81, 85 (Mo. App. 1995). The section also states that an employee is allowed to select his own doctors, but if he does so, he assumes liability for those expenses. An exception to this general rule exists where an employer has notice of an employee's need for treatment but fails to provide it; in such circumstances the courts have held that the employee is entitled to pursue his own

course of treatment while later pursuing an order from an ALJ or this Commission holding employer liable for the expenses. Martin v. Town \& Country Supermarkets, 220 S.W.3d 836, 847-48 (Mo. App. 2007).

Here, employee points to a treatment gap from April through September 2007, during which employer failed to provide prescription medications to employee. This lapse, says employee, constituted a "waiver," such that employer is thereafter precluded from exercising its right to direct treatment under § 287.140.1. Employee also points to a number of other instances in which he disagreed with employer over the course of his treatment, characterizing the cumulative effect of such instances as evidence that employer had a lack of concern for him.

Employee cites the case of Balsamo v. Fisher Body Division-General Motors Corp., 481 S.W.2d 536 (Mo. App. 1972) as "directly on point." We believe employee misreads Balsamo. Contrary to employee's brief, in which he recites that the employer in Balsamo denied treatment, the employer there actually "refused no medical care, and ... even paid for the doctor and hospital selected by the employee, something not required by the statute." Id. at 538. After acceding to and paying for treatment selected by the employee, however, the employer in Balsamo argued that it should not have to pay the employee's wife to perform nursing services, but instead should be allowed to select a nursing service of its choice. Id. The court ruled that the employer's prior action in voluntarily paying for the employee's self-directed treatment meant that it had effectively "waived" its right to direct that treatment under the statute, and that employer could not reassert its right to direct treatment after previously having "yielded" that right, with the effect that employer had to pay employee's wife to perform the nursing services. Id. at 538-9.

Here, on the other hand, employer has never yielded its right to direct treatment. To the contrary, this employer has consistently asserted its right to control treatment throughout the pendency of the claim-if it had not, there would hardly have been the history of clashes between employer and employee over the issue of his medical treatment which we see reflected in the record in this case. We conclude Balsamo does not fit the facts presented or support employee's argument.

The other cases addressing an employer's waiver of the right to direct treatment deal with issues of past medical treatment (i.e. where an employer has previously denied and the employee has previously obtained the disputed treatment before seeking an award holding the employer liable for his past medical expenses) and do not support the proposition that employee may obtain an order from this Commission granting him the prospective privilege of selecting any doctor or treatment he chooses with employer liable to pay for such expenses. See Mashburn v. Chevrolet-Kansas City Div. General Motors Corp., 397 S.W.2d 23, 31 (Mo. App. 1965); Hendricks v. Motor Freight Corp., 570 S.W.2d 702, 710 (Mo. App. 1978); Shores v. General Motors Corp., 842 S.W.2d 929, 932 (Mo. App. 1992); and Dudley v. City of Des Peres, 72 S.W.3d 134, 138 (Mo. App. 2002).

Ultimately, we are not persuaded that § 287.140, nor any of the relevant cases, contemplate the sort of relief employee seeks here. We find the administrative law

judge's decision to award attorney's fees the appropriate way to address the 2007 lapse in treatment. We deny employee's request for an order finding that employer waived its right to direct employee's medical treatment under $\S 287.140 .1$. We further deny employee's request for an order allowing him to select his own doctors and treatments at employer's expense.

Where the parties dispute whether a particular past medical expense comes within the employer's obligation under $\S 287.140$, the burden of proof falls on employee for each claimed past medical expense to provide 1) the medical bill, 2) the medical record reflecting the treatment giving rise to the bill, and 3) testimony establishing that the treatment flowed from the compensable injury. Martin v. Mid-Am. Farm Lines, Inc., 769 S.W.2d 105, 111-12 (Mo. banc 1989). Here, the administrative law judge granted employee's request for past medical expenses to the extent of awarding the cost of employee's spinal cord stimulator. In his brief, employee argues the administrative law judge failed to award certain expenses relating to physical therapy and pre and postoperative care related to the surgery to implant the spinal cord stimulator. Unfortunately, in his brief and at oral arguments in this matter, employee failed to provide citations to the record that would permit us to review the bills or treatment records or any other evidence establishing the amount of the claimed expenses. Employer, in its brief, suggests that employee failed to put the bills in evidence.

In a letter to this Commission received on January 26, 2012 (after the date of oral arguments in this matter), employee directs us to "pages 002109-002321 in the transcript" where we will find "the medical bills." These pages correspond to employee's Exhibits G and H. In other words, employee has directed us to the exhibits containing all of his medical bills and all of his pharmacy records.

As for Exhibit H (the pharmacy records), it is unclear why employee is now directing us to this exhibit on his claim for past medical expenses, as employee's counsel agreed, at trial, that employee is not claiming any expenses from his Exhibit H. Transcript, page 72. What is clear is that employee has failed to provide citations to the specific bills in issue. Employee also fails to provide citations to the testimony identifying the bills, and fails to provide citations to the records of the treatments giving rise to the bills. Apparently, employee asks us to comb the entire exhibit containing his medical bills, as well as the entire exhibit containing his pharmacy records, while comparing each bill to his treatment record (which we are asked to search for the relevant information, employee having failed to provide citations), in order to determine which bills constitute the amounts employee says that employer failed to pay in connection with his spinal cord stimulator surgery. It is unclear how employee expects us, after completing this task, to determine the actual amount of his liability on the bills.

It appears to us that employee invites this Commission to make his case for him when he asks us (at minimum) to search over 200 pages of medical bills and 1500 pages of medical treatment records for the evidence to support his arguments, and where he fails to provide citations to any evidence that would allow us even to begin to interpret the bills themselves, which include numerous handwritten notations from an unknown

person, and which are far from self-explanatory as to who paid for the treatments and in what amount. We must decline employee's invitation in order to avoid becoming an advocate for either party.

Ultimately, we must conclude employee failed to meet his burden of proving he is entitled to any additional past medical expenses beyond those awarded by the administrative law judge.

Employer argues the administrative law judge failed to resolve whether employee is entitled to a number of specific future medical treatments he is now requesting. These include treatment for his shoulders, annual visits to Craig Institute, the appointment of a nurse care manager, psychiatric care, home nursing care, a fitness program and equipment, and a front-load washer and dryer.

The problem with employee's argument is that, in their stipulations at the outset of the hearing, the parties did not ask the administrative law judge to determine whether any such specific treatments flow from the work injury. The parties, rather, stipulated that employer is liable for future medical treatment. *Transcript*, page 6. At that point, the issue of future medical treatment was effectively decided, because we are not permitted to address issues beyond those the parties specifically identify as in dispute. *Boyer v. Nat'l Express Co.*, 49 S.W.3d 700, 705 (Mo. App. 2001).

Under § 287.140, employer remains liable for any and all future medical treatments and accommodations that employee may reasonably require in order to cure and relieve from the effects of his work injury. To the extent employee is asking us to "enforce" his award of future medical care against employer as to specific disputed treatments, this Commission is not the forum for such a dispute, because we lack the authority to enforce an award of compensation. *Carr v. N. Kan. City Bev. Co.*, 49 S.W.3d 205, 207 (Mo. App. 2001).

In sum, where the parties stipulated that employer is liable for future medical treatment and did not place in issue the question whether any of the specific medical treatments identified by employee flow from the work injury, we must conclude that the administrative law judge did not err in failing to order employer to provide any of the specific requested treatments or accommodations.

The Commission supplements the amended award and decision of the administrative law judge with our own analysis herein.

The amended award and decision of Administrative Law Judge Hannelore D. Fischer issued June 3, 2011, is affirmed and is attached hereto