ELIZABETH DOWNING, ) 

 ) 

 Employee-Respondent, ) 

 ) 

vs. ) No. SD32683 

 ) 

McDONALD'S SIRLOIN STOCKADE, ) Filed: January 17, 2014 

 ) 

 Employer-Appellant. ) 

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION 

AFFIRMED 

This appeal involves a workers' compensation claim filed by Elizabeth 

Downing ("Employee") against McDonald's Sirloin Stockade, Inc. ("Employer"). 

The Labor and Industrial Relations Commission ("the Commission") awarded 

compensation, and Employer appeals. Specifically, Employer claims the 

Commission erred in making an award for past medical expenses because 

Employer did not authorize the medical expenses. This argument is without 

merit, and we affirm the Commission's award. 

Standard of Review 

"In reviewing a workers' compensation final award, 'we review the findings 

and award of the Commission rather than those of the ALJ.'" Pruett v. Federal 

Mogul Corp., 365 S.W.3d 296, 303 (Mo. App. S.D. 2012) (quoting Birdsong 

v. Waste Mgmt., 147 S.W.3d 132, 137 (Mo. App. S.D. 2004)). Under Section 
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287.495, RSMo (2000), appellate review of the Commission's award is limited to 

consideration of the following questions: (1) whether "the [C]ommission acted 

without or in excess of its powers;" (2) whether "the award was procured by 

fraud;" (3) whether "the facts found by the [C]ommission do not support the 

award;" and (4) whether "there was not sufficient competent evidence in the 

record to warrant the making of the award." § 287.495.1, RSMo (2000). 

"Whether the award is supported by competent and substantial evidence is 

judged by examining the evidence in the context of the whole record." Pruett, 

365 S.W.3d at 303-04 (quoting Hampton v. Big Boy Steel Erection, 121 

S.W.3d 220, 223 (Mo. banc 2003)). Furthermore, "we defer to the Commission 

on issues involving the credibility of witnesses and the weight to be given to their 

testimony." Id. at 304 (quoting Pavia v. Smitty's Supermarket, 118 S.W.3d 

228, 234 (Mo. App. S.D. 2003)). Contrariwise, "[w]e independently review 

questions of law." Martin v. Town and Country Supermarkets, 220 

S.W.3d 836, 844 (Mo. App. S.D. 2007). 

Factual and Procedural Background 

 Employee worked as a waitress for Employer from October 1985 until 

October 2007. She first began to have back pain in 2005. In March 2006, 

Employee sought treatment on her own from a chiropractor, Dr. Wayne Webb 

("Dr. Webb"). Employee reported a constant, sharp pain in her hip and leg. 

Employee also stated she thought the pain might be related to her work and that 

her work duties aggravated her pain. As treatment progressed, Dr. Webb 

determined an MRI was needed. Dr. Webb spoke with Employee about the need 

for an MRI on at least two occasions in late April. 
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In April or May 2006, Employee spoke with Employer's owner, Terry 

McDonald ("Owner"). Owner suggested Employee seek treatment through 

Employer's workers' compensation insurance. LuAnn Henderson ("Claims 

Representative"), a senior claims representative for Employer's workers' 

compensation insurance carrier, was notified of the claim around that time. 

 Employer referred Employee to Dr. Dennis Estep ("Dr. Estep"). Dr. Estep 

examined Employee on May 12, 2006. Dr. Estep recommended Employee be 

examined by a surgeon. 

 On May 18, 2006, Claims Representative spoke with Employer's assistant 

manager, Jim Vaughn ("Assistant Manager"). She told him she did not believe 

Employee's condition was compensable because (1) Employee waited so long to 

report it and (2) Employee did not recount a specific injury. Claims 

Representative told Assistant Manager she "would be contacting [Employee] to 

get information then would be sending out a denial." 

 Employer subsequently referred Employee to Dr. Brian Ipsen ("Dr. Ipsen") 

who examined Employee on June 13, 2006. During that visit, Employee reported 

severe and intolerable right leg pain. Conservative treatment, including pain 

medication, chiropractic care, and cortisone injections, had not provided relief. 

Dr. Ipsen believed proceeding to surgery was reasonable and ordered an MRI to 

assess the situation. 

 Claims Representative authorized payment for the MRI. The MRI was 

performed on June 17, 2006. The MRI revealed disc degeneration at L5-S1 as 

well as a large extrusion "causing impingement on the right S1 nerve root." Dr. 

Ipsen scheduled surgery for June 23, 2006. 
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 There were three phone calls between Employee and Claims 

Representative in which Employee requested permission to undergo the 

scheduled surgery. Claims Representative finally told Employee the surgery was 

not authorized because the company needed more information. 

 Employee took out a loan and proceeded to undergo surgery by Dr. Ipsen 

on June 23, 2006, when Employee underwent a right L5-S1 microdiskectomy. 

She experienced complications from the surgery, and on June 25, 2006, Dr. 

Ipsen conducted a complete diskectomy. The total cost for these surgeries and 

related medical treatment was $43,399.23. On August 11, 2006, Employee filed a 

claim for compensation with the Division of Workers' Compensation ("the 

Division"). 

 On June 11, 2007, Employee underwent an independent medical 

evaluation by Dr. Brent Koprivica ("Dr. Koprivica"). Dr. Koprivica reviewed 

Employee's medical records and performed a physical examination. Dr. 

Koprivica concluded (1) Employee's work for Employer was the prevailing factor 

in causing Employee's herniated disc and (2) the surgeries were reasonable and 

necessary to treat the herniated disc. 

 The Division held a hearing regarding Employee's claim for compensation. 

Employee presented her own testimony, her medical records, and the opinion of 

Dr. Koprivica. Employer presented no expert testimony. The Administrative 

Law Judge ("ALJ") determined the condition arose out of and in the course of 

employment and entered an award for (1) unpaid medical expenses for two 

emergency room visits, (2) temporary total disability, and (3) permanent partial 

disability. The ALJ did not make an award for the cost of the two surgeries. 
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 Employee sought review by the Commission. The Commission adopted 

the ALJ's award and findings except with respect to the issue of past medical 

expenses. The Commission modified the award to include coverage of past 

medical expenses for the two surgeries and related medical treatment. Employer 

appeals. 

Discussion 

 In its sole point on appeal, Employer argues the facts found by the 

Commission do not support the award of past medical benefits for the surgeries 

because the medical expenses were not authorized and the treatment was not 

needed on an emergency basis. This argument is without merit. 

 The portions of Section 287.1401

 which are relevant to the present case 

provide that: 

1. . . . 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. 

. . . [and] 

10. The employer shall have the right to select the licensed treating 

physician, surgeon, chiropractic physician, or other health care 

provider[.] 

§ 287.140. Furthermore, "[a]n employer's duty to provide statutorily-required 

medical aid to an employee is absolute and unqualified." Martin, 220 S.W.3d at 

844. That is, "[t]his statute requires an employer to provide an injured employee 

medical care but allows the employer to select the medical provider." Pruett, 

 

1 This and all subsequent statutory references are to RSMo Cum. Supp. (2013).
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365 S.W.3d at 307. Thus, "[a]n employer is held liable for independent medical 

treatment incurred only when the employer has notice that the employee needs 

treatment, or a demand is made on the employer to provide medical treatment, 

and the employer refuses or fails to provide the needed treatment." Id. (quoting 

Hayes v. Compton Ridge Campground, Inc., 135 S.W.3d 465 (Mo. App. 

S.D. 2004)). 

 Section 287.140 has been interpreted to provide that where an employer 

has refused requested treatment, the employer will be liable for medical 

treatment obtained at the employee's own expense. Id. For example, in Pruett, 

the claimant sustained a back injury and requested medical treatment from his 

employer. Id. at 300. The employer sent the claimant to a doctor who 

recommended an MRI, but the employer refused to authorize the MRI. Id. The 

claimant sought additional treatment, and when the claim came before the 

Commission, the Commission made an award for past medical treatment. Id. at 

300-01. The employer appealed, and in one of its points on appeal, the employer 

argued the Commission erred in awarding past medical benefits because the 

employer had not authorized the medical treatment. Id. at 307. This Court 

disagreed based on the claimant's testimony that before treatment he had 

"'received a call from workers' compensation' and was told they had rejected any 

additional medical treatment[.]" Id. at 308. 

 Here, similarly, Employee informed Employer of the need for surgery. 

The recommendation and the surgery were both performed by the Employerauthorized treating doctor. Employer had the right to select the treating 

physician, and that is who treated the Employee. However, Claims 
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Representative stated the surgery was not authorized because she needed 

additional time to make her decision whether to deny the claim. 

The medical evidence in the case showed the surgery was reasonable and 

necessary in light of Employee's job related condition. Employer has never raised 

a contention that additional investigation would have changed that 

determination. Furthermore, the Commission found the condition was 

compensable, and no claim of error is made with respect to that finding. Under 

these circumstances, the Commission did not err in making an award for past 

medical expenses to cover the two surgeries. 

 The authorities upon which Employer relies do not require a different 

conclusion. Employer claims this case is similar to Anderson v. Parrish, 472 

S.W.2d 452 (Mo. App. K.C.D. 1971), and Hayes, 135 S.W.3d 465. That claim 

fails because those cases are factually distinguishable from the present case. In 

each of those cases, the claimant did not notify the employer prior to seeking the 

treatment for which he sought reimbursement. Anderson, 472 S.W.2d at 457; 

Hayes, 135 S.W.3d at 471. Here, in contrast, Employee notified Employer of the 

condition in April or May. Claims Representative spoke with Employer's 

representatives and Employee throughout May while Employee's condition was 

assessed. Furthermore, Claims Representative and Employer were notified of the 

need for surgery prior to the surgery. This case is not similar to the cases 

Employer cites. 

 In sum, the medical expenses in this case were necessary and reasonable 

to relieve the effects of the condition. Employee notified Employer of the need 

for treatment, and Employer refused to provide that treatment. Consequently, 
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the Commission did not err in finding Employer liable for the cost of the past 

medical treatment. Employer's sole point is denied. 

Decision 

 The Commission's award is affirmed. 

MARY W. SHEFFIELD, J. - OPINION AUTHOR 

GARY W. LYNCH, J. - CONCURS 

DON E. BURRELL, J. - CONCURS