Opinion
No. 28456.
February 17, 1953.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, WILLIAM S. CONNOR, J.
Luke, Cunliff Wilson, St. Louis, for appellants.
R. C. Reis, St. Louis, for respondent.
This case arises under the Workmen's Compensation Law. The appeal is by the employer and insurer from a judgment of the Circuit Court of the City of St. Louis which reversed that part of the award of the Industrial Commission which denied the employee's claim for reimbursement for medical expense.
Claimant was injured on or about August 1, 1949, during the course of his employment, when he was struck on the shoulder by a section of plaster which fell from the ceiling of the room in which he was at work. Claimant thereafter continued in his employment for a period of two or three weeks, after which time he quit work and consulted a physician, Dr. Henry E. Oppenheimer. He was thereafter treated by Dr. Oppenheimer and Dr. Lenobel for several weeks. Both the above doctors were chosen by claimant and no claim is made on this appeal for any allowance for their services.
In the latter part of September, or early part of October, claimant's attorney made a demand on the employer for medical treatment for claimant. The employer complied with this request and sent claimant to Dr. E. C. Funsch for treatment. Claimant was examined by Dr. Funsch for the first time at his office on October 17, 1949.
Dr. Funsch testified that claimant complained that his right shoulder was painful and, although this condition had improved under treatment, there was still some soreness. He also stated there was no restriction of motion of the time. Dr. Funsch made a physical examination at the time. He testified that the right shoulder was about the same size as the left shoulder; that there was no deformity, no scarring or discoloration, and no muscle atrophy or swelling. He stated that claimant complained of generalized tenderness over the top of the shoulder; that he was able to move his arm in all directions without any restriction; that there was no impairment in the movement of the elbow, wrist or hand; that there was no evidence of any motor or sensory motor involvement, and that the X-ray of the right shoulder was negative for any demonstrable evidence of injury. The doctor stated that the X-ray showed no evidence of separation of the acromioclavicular joint.
Dr. Funsch then testified that it was possible that claimant could have had some soreness, but that he should have been able to work. He further testified that:
"the man said he had something fall, striking him on the shoulder. Then he continued to work, which would indicate that it is possible he could have had some soft tissue injury, but nothing serious. He could work at the time I saw him; his complaints were still subjective, which would bear out the conclusion there had not been any serious injury to the shoulder, but he could have some soreness there. * * * I gave him some diathermy, but only did that for a short while.
* * * * * *
"Q. You sent him down to Desloge Hospital for some treatments. You must have felt there was some need for those treatments? * * * A. I sent him there to help satisfy his mind. There wasn't anything I could find and sometimes they give them heat treatments like that and it does them good. There was nothing about the shoulder to indicate any disability, but he was complaining, so I gave him treatments. He was treated for subjective complaints.
* * * * * *
"Q. You were treating him, you were sending him to Desloge Hospital for these treatments? A. Physiotherapy. * * * I don't know how many times he went, but I sent him down there.
"Q. How did it come about those treatments were discontinued? A. They told me to discontinue them, the carrier * * * Insurance Company. I sent him down. You want to know why I sent him down. He was complaining about his shoulder and I thought maybe if they would give him treatments the soreness he had would subside, although I found nothing to support his claim. If you don't find anything and are just doing it on subjective complaints, they will not authorized it.
"Mr. Ries (resuming) Told you to discontinue treatments? A. That is right.
"Q. That was sometime in November? A. I would say two weeks or so after October 17. * * * the man came to me in October, and I told them what he said, that he complained of soreness in shoulder, that he may have had soreness. I didn't think enough, so I sent him over for physiotherapy. I told them that and they told me to discontinue it. I don't know what the reasons was.
"Q. Was that contrary to your opinion at that time? A. Well, I was giving the man the benefit of the doubt. He told me the first heat treatment relieved whatever soreness he had.
"Q. The company's opinion rather than yours that the diathermy was stopped? A. Yes. * * * I would have continued it for a while, not too long, maybe a week or two."
After the employer's insurance carrier ordered Dr. Funsch to discontinue treatment of claimant, the latter consulted Dr. A. H. Diehr. Dr. Diehr first saw claimant on November 23, 1949. The doctor testified that:
"On examination of the right shoulder, it was quite tender in the musculature when palpating on the top of the right shoulder, and also in the trapezuis muscle, extending upward on the side of his neck, and also in the suprascapular muscle. * * * there was a slight crepitation at the acromioclavicular joint on movement of the arm. It was tender when I palpated over the upper portion of the deltoid region in the vicinity of the sub-deltoid bursa. There was apparently a slight swelling over the upper portion of the shoulder blade in the musculature, and there was muscular contraction when palpating this area. I found no definite evidence of atrophy except that over the shouder blade there appears to be some atrophy. When moving the arm upward he moves it up and over the head to almost normal limits, but when rotating the arm he resisted this movement, complaining of pain. Also, when twisting the arm behind the back, he complained of pain and he did restrict this movement somewhat. There is some crepitation in the soft tissue, just at the junction of the arm at the shoulder in the upper deltoid region. * * I suggested deep heat therapy treatment for the man's shoulder * * * I think there is some kind of work he could do. But I believe he would have trouble with overhead work like painting a ceiling. But if he could select work that was below that sort of a level, he could get on a ladder to a certain extent, he could do it. But if he had to reach over his head, I do not think he could stick it out all day. I believe he would experience some discomfort."
It further appears that Dr. Diehr began treating claimant on December 28, 1949. Treatment consisted of diathermy given three times a week. At the time of the hearing, February 28, 1950, claimant was under the care of Dr. Diehr.
Dr. Diehr testified that $42.50 would be a reasonable charge for the services rendered by him in his examination of claimant on November 23, 1949. He further testified that he did not have any records with him from which he could testify as to the value of the services rendered by him subsequent to November 23, 1949.
On March 15, 1950, the referee rendered a temporary or partial award for temporary total disability in the sum of $22.47 per week for 13 6/7 weeks, to cover various periods from August 1, 1949, to February 20, 1950. Said award also provided for further medical, surgical and hospital treatment between the date of the award and September 1, 1950, and for further payment of weekly benefits, in the event said employee should sustain further temporary disability, to continue until the next hearing of the case. The award recited that it was only temporary or partial and subject to further order; that the proceedings were continued and the case kept open until a final award could be made. The referee did not make any allowance to claimant for medical expenses.
The referee made the following findings of fact:
"I find the ultimate facts submitted in evidence in this case to be as follows, to-wit:
"I find as a fact that Benjamin W. Finn, employee, sustained accidental injuries arising out of and in the course of his employment with W. B. Harrison, et al., employer, on or about August 1, 1949, in the City of St. Louis, Missouri, when a quantity of plastering fell from the ceiling under which he was standing at the time, striking him on the right shoulder, resulting in injury to his right shoulder extending into the neck, the exact nature and extent of same cannot now be determined.
"I further find as a fact that employee is in need of additional medical, surgical and hospital treatment to cure and relieve him from the effects of his injuries."
No review of the award was requested by either of the parties.
A further hearing before the referee was held on October 23, 1950. Medical bills, including the bill for services rendered by Dr. Diehr, were offered by claimant. Dr. Diehr's bill, after counsel for claimant voluntarily deleted an item covering the doctor's testimony given at the previous hearing, amounted to the sum of $151.50. Counsel for employer and insurer objected to the offer, on the ground that the rendition of the prior temporary award from which claimant requested no review precluded any consideration of medical services rendered prior to the date of the award. All of the doctor bills offered were for services rendered prior to the rendition of the temporary award and prior to the expiration of the time for a review of said award. However, counsel for appellants stated:
"Mr. Luke: As I said before, I will not object to these exhibits on the ground that the charge made is not a reasonable one. In other words, I do not insist on that, and I do not want to inconvenience any doctor by bringing him in here merely for the purpose of saying `my charge is reasonable', when we all know he probably will say so."
The referee sustained appellants' objection to the medical bills offered.
There was received in evidence a statement by Dr. John Patrick Murphy, dated June 7, 1950, which recited: "Patient discharged to return to work as of next Monday, June 12, 1950. He still has some complaint of his shoulder but there is no restriction of motion and no functional disability."
Dr. Murphy was a physician designated by appellants to treat claimant after the temporary award was entered. He began treating claimant on March 29, 1950. Dr. Murphy sent claimant to Alexian Brothers Hospital for electric and massage treatment for three weeks, five days a week. Subsequent thereto, Dr. Murphy examined claimant and discharged him in June, 1950.
On November 15, 1950, an award was entered for temporary total disability in the sum of $22.47 per week for 29-5/7 weeks, and medical expenses in the sum of $211.50.
In his findings of fact, the referee stated:
"I further find as a fact that the employer and insurer failed to provide employee with reasonable and necessary medical surgical and hospital treatment to cure and relieve him from the effects of his injuries in the following amounts:
Dr. A. H. Diehr, bill as modified ........... $141.50 Exhibit E Dr. B. Wier, bill for ....................... 10.00 Exhibit D Dr. Henry E. Oppenheimer. bill for ................................ 10.00 Exhibit A Dr. Milton Lenobel, bill for ................ 50.00 Exhibit B ------- making a total of ........................ $211.50, for which sum I find the employer and insurer liable for payment forthwith to said employee."
In his conclusions of law, said referee stated:
"The employer and insurer having denied liability in their answer filed in this case, it was not required of the employee to make demand on them for the medical aid he secured for himself to cure and relieve him from his injuries found under the Findings of Fact.
"The employee proved the reasonableness of these medical bills through the attorney for the employer and insurer admitting it on the record of this case without further testimony by the creditors or other witnesses to prove the same."
Thereafter, in due time, appellants made application for review by the Industrial Commission.
On May 8, 1951, the Industrial Commission rendered its final award, affirming the award of the referee in all respects except as to the allowance made for medical expense. As to the latter, the Commission found:
"We further find that although the liability for medical bills was not adjudicated by the temporary or partial award of the referee, dated March 15, 1950, the employer and insurer are not liable for medical expenses incurred by the employee through the exercise of his right of selection."
From the award of the Industrial Commission, claimant duly perfected his appeal to the Circuit Court. The Circuit Court, by its judgment, ordered that "plaintiff be allowed the sum of $141.50 for medical treatment rendered by Dr. A. H. Diehr, and that the award of the Industrial Commission in all other respects be affirmed at the costs of the defendant and insurer, The Fidelity Casualty Company of New York, and that execution issue therefor." From this judgment, the employer and insurer appealed.
The issue on this appeal is the propriety of the judgment of the Circuit Court that plaintiff be allowed the sum of $141.50 for medical treatment rendered by Dr. A. H. Diehr. Appellants contend that the court erred and that this court should reverse the judgment and direct the court below to affirm the award of the Commission.
The Commission found that the employer and insurer were not liable for medical expenses because the employee exercised the right to select his own physician at his own expense, under Section 287.140, subd. 1 RSMo 1949, V.A.M.S. In construing said section we have held that where a workman, after sustaining an injury which he knows to be compensable, refuses medical attention tendered by the employer and selects his own physician, the employer is not liable for the expense of such service. Reeves v. Fraser-Brace Engineering Co., 237 Mo.App. 473, 172 S.W.2d 274; Kopolow v. Zavodnick, Mo. App., 177 S.W.2d 647. It has also been held that while the Act accords the employer the privilege of choosing the physician or agency to render the medical treatment required by virtue of its provisions, still if said employer neglects or refuses, by reason of a denial of liability or otherwise, to provide such medical treatment, the employee may select his own physician and have the costs of the treatment assessed against the employer. Evans v. Chevrolet Motor Company, 232 Mo.App. 927, 105 S.W.2d 1081; Klasing v. Fred Schmitt Contracting Co., 335 Mo. 721, 73 S.W.2d 1011; Schutz v. Great American Ins. Co., 231 Mo.App. 640, 103 S.W.2d 904; 71 C.J., Workmen's Compensation Acts, § 496, page 780.
The record shows that prior to October 17, 1949, claimant was treated by Doctors Oppenheimer, Weir and Lenobel, physicians of his own choice. The Commission was, therefore, correct in refusing to permit the value of the services of these doctors to be assessed against appellants. Since the employee did not appeal, the propriety of the Commission's ruling with respect to the above named doctors is not an issue here.
The undisputed evidence further shows that in the latter part of September, or early part of October, a demand was made on the employer for medical treatment for claimant, and the employer complied with this request and sent claimant to Dr. Funsch, who treated claimant for a period of about two weeks. It further appears that after Dr. Funsch advised the employer's insurance carrier that he found nothing to support the employee's claim, Dr. Funsch was ordered by the insurance company to discontinue the treatments. This refusal of the appellants to furnish further medical attention justified the employee to seek medical aid elsewhere. This he did. He consulted Dr. Diehr only after he had been refused further medical attention by his employer. There is no evidence in the record that the employer made any further offer medical aid until after the temporary award, at which time the employee was sent to Dr. John P. Murphy. Dr. Diehr did not treat the employee thereafter.
In our opinion, the Commission could not reasonably have made a finding against the allowance of Dr. Diehr's fee. Said findings of the Commission is not supported by competent and substantial evidence upon the whole record.
The remaining question is whether the referee had power at the second hearing to allow any sum for medical expense. Appellants claim that, when the time for a review of the temporary award expired the award became res judicata between the parties — not only as to issues upon which the referee had made a finding, but also as to all matters which properly belonged to the subject of the litigation which could have been decided. Such rule, properly applicable to final awards, should not be applied in all its severity to temporary awards.
Section 287.510 RSMo 1949, V.A.M.S., provides for the making of temporary or partial awards, and states that same may be modified from time to time to meet the needs of the case, and may be kept open until a final award can be made. The referee in the case at bar actually did not adjudicate the question of medical services at the first hearing, thus leaving said issue open for consideration at the final hearing. Thompson v. Towle, 98 Conn. 738, 120 A. 503.
The judgment appealed from is affirmed.
BENNICK, P. J., and ARONSON, J., concur.