Section 287.140.1 RSMo governs the issue of past medical expenses and provides, in relevant part, as follows:
In addition to all other compensation paid to the employee under this section, 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.
We have credited Dr. Poetz's opinion with regard to the issue of medical causation. Because we are convinced that the accident caused employee to suffer the more serious lumbar spine pathology at issue, we are likewise persuaded by Dr. Poetz's opinion that the additional treatment employee received was reasonably required to cure and relieve the effects of his work injury. We so find.
The courts have consistently held that an award of past medical expenses is supported when the employee provides (1) the bills themselves; (2) the medical record reflecting the treatment giving rise to the bill; and (3) testimony identifying the bills. Martin v. MidAmerica Farm Lines, Inc., 769 S.W.2d 105, 111-12 (Mo. 1989). If employee does so, the burden shifts to employer to prove some reason the award of past medical expenses is inappropriate (such as employee's liability for them has been extinguished, the bills are not reasonable, etc.). Farmer-Cummings v. Pers. Pool of Platte County, 110 S.W.3d 818, 822-23 (Mo. 2003). Employee put his bills in evidence, the medical records showing the treatment giving rise to the bills, and identified the bills in his testimony. Employer, on the other hand, did not advance any evidence to suggest that employee's liability for the bills has been extinguished, or that the charges are not fair and reasonable. Nor does employer provide any argument or evidence to suggest that the identified amount in dispute of $\ 388,011.29 was incorrectly totaled or otherwise unsupported by the bills or medical records themselves. In the absence of any contrary evidence, we are persuaded by and adopt Dr. Poetz's opinion that the charges reflected in the bills are fair and reasonable; we so find.
Although employer advanced an "authorization" defense in its brief and at oral argument, it is uncontested that employee made numerous demands upon employer for additional medical treatment, but that employer rejected employee's requests. "If the employer is on notice that the employee needs treatment and fails or refuses to provide it, the employee may select his or her own medical provider and hold the employer liable for the costs thereof." Reed v. Associated Elec. Coop., Inc., 302 S.W.3d 693, 700 (Mo. App. 2009). The rationale is that an employer "waives" its statutory right to direct care if it denies medical
Improve: Robert G. Wright, Jr.
treatment for an injury that is later determined to have been compensable. Shores v. General Motors Corp., 842 S.W.2d 929, 931 (Mo. App. 1992).
Nevertheless, employer suggests that employee was required under the law to demand additional treatment from employer after he obtained, on his own, the results of the MRI study of May 31, 2012, and that employee's failure to do so is preclusive of an award of past medical expenses. We are not persuaded. On April 4, 2012, employee specifically requested that employer authorize an MRI when his low back complaints referable to the work injury did not improve despite Dr. Chabot's opinion that employee had suffered a mere lumbar strain. By letter dated April 17, 2012, employer unequivocally denied that request, citing Dr. Chabot's opinions.
Certainly employer was entitled to rely on the causation opinion of Dr. Chabot and deny additional compensation, but likewise, employee was entitled to disagree with that opinion and seek further treatment for his work injury. At that point, both parties assumed the risk inherent in their respective positions. Employee assumed the risk a fact-finder would agree with Dr. Chabot or find that employee's additional treatment was not reasonably required to cure and relieve the effects of his work injury, with the result that he would have to pay for his own treatment. Employer, on the other hand, assumed the risk that Dr. Chabot's theory would be rejected and that it would be deemed to have waived its right to direct care and also be held liable for employee's self-directed care. As it turns out, we were not persuaded by the opinions from Dr. Chabot.
Employer cites Blackwell v. Puritan-Bennett Corp., 901 S.W.2d 81 (Mo. App. 1995), which stands for the proposition that where an employer had provided treatment following a work injury, but the employee never returned to work after having been released by employer's authorized treating doctor, and thereafter never contacted employer at all, but instead pursued extensive additional treatment on his own, the employee was not entitled to an award of past medical expenses. Id. at 84-5. The Court reasoned that: "[a]s far as [employer] was aware, [employee] was not in need of any further medical attention." Id. at 85. Subsequent decisions have followed the Blackwell rule in circumstances where the employee's conduct deprived employer notice and an opportunity to direct medical treatment. See, e.g., Poole v. City of St. Louis, 328 S.W.3d 277, 291 (Mo. App. 2010).
Because employee specifically requested additional treatment including an MRI, but employer rejected that request, the Blackw