Thursday, January 16, 2014

Court finds delay to investigate claim constitutes a denial of treament

An employer has an obligation to provide treatment for a work-related injury, and the duty may arise even though claimant does not  prove the condition is work-related when requesting care, according to the recent court of appeals case, Downing v. McDonald's Sirloin Stockade, 2014 Mo App. Lexis 37 (Jan 15, 2014). 

Downing involved a waitress who had back surgery and the carrier would not authorize it because the carrier wanted more time to investigate the claim.   Claimant  initially attributed the symptoms to an accident months earlier bending over a table and she later hired an expert who attributed her disc herniation to an occupational disease.  At the time of her request for care the treating physician indicated that her condition was chronic but did not attribute it to an occupational disease. 

When claimant requested care several months later, the employer authorized claimant to have an MRI and see a surgeon but declined to authorize surgery to investigate the claim.  Dr. Ibsen recommended surgery on June 14, claimant was told it would was denied pending investigation in a conversation on June 20, and claimant proceeded with surgery immediately resulting in two operations.     The ALJ inferred a finding the employer's physician regarded the condition work-related by referring claimant to a surgeon.  The claimant's expert concluded claimant herniated a disc from repetitive bending in her job as a waitress.  The employer's manager testified that the waitresses complain their backs hurt  all the time and he rubs them to help their various aches and pains. The ALJ   awarded the rating provided by claimant's expert and adopted the causation opinion as the employer offered no expert opinion.  The ALJ found that the employer in these circumstances had not denied or neglected to provide care and had previously tendered evaluations with an MRI and a surgeon. 

The Commission reversed and awarded further payment of the medical bills.  It noted the employer had a duty to provide care when it received a request for care.  In this case, there was no evidence of an election for claimant to seek her own doctor for treatment when she treated with the doctor selected by the employer.   The Commission noted it was a "reasonable concern" that the employer might delay authorization to develop a defense. "We do not believe that employer's statutory right to direct treatment invested this employer with the right to tell employee to ignore the recommendation from Dr. Ipsen and wait, in severe and unrelenting pain, for no other reason than to allow Ms. Henderson time to build her case for denying the claim altogether."  The ALJ had found claimant's own expert testified the need for surgery was not an immediate "emergency" treatment  2013 MO WCLR 65, suggesting the Commission may have made its own finding that the pain was unrelenting. 
The court of appeals rejected  the employer's appeal  that claimant had to prove authorization or a need for emergency treatment to order payment of the bills.  The employer did not contest claimant had an occupational disease or that the treatment was unreasonable or that additional investigation would have changed that determination.  Unlike other cases, claimant had sought treatment from a physician selected by the employer and provided notice of her intention to proceed with immediate treatment after the employer had tendered evaluations with other providers.   The Court did not adopt the  Commission's finding that the claimant had  unrelenting pain or the Commission's implication that the employer was contriving an excuse not to pay benefits. 

Two days later the court of appeals recalled this decision and issued Downing v McDonald's Sirloin Stockade, 2014 Mo. App. Lexis 41 (January 17, 2014).  Notably, the court substituted its previous findings that the evidence supported a finding of an "occupational disease" to a "medical condition."  The new opinion further deletes reference to the original accident of leaning over a table and an explanation why  the employer questioned whether the symptoms were related to this specific incident.  Claimant's expert concluded that the "work" caused the disc herniation according to both opinions. 

The takeaway from the case is that a Missouri employer  who has the right to select a comp provider can be on the hook when its own expert recommends surgery and has to decide quickly to fish or cut bait.