Buchanan v. Mission Ins. Co.

• Decision Date: 14 July 1986
• Docket Number: No. 1,1
• Citation: Buchanan v. Mission Ins. Co., 713 S.W.2d 654 (Tenn. 1986)
• Parties: Cherry E. BUCHANAN, Plaintiff-Appellee, v. MISSION INSURANCE COMPANY, Defendant-Appellant.
• Court: Tennessee Supreme Court

Page 654

713 S.W.2d 654

Cherry E. BUCHANAN, Plaintiff-Appellee, v. MISSION INSURANCE COMPANY, Defendant-Appellant.

No. 1

Supreme Court of Tennessee at Jackson.

July 14, 1986.

Henry T.V. Miller, McDonald, Kuhn, Smith, Miller and Tait, Memphis, for defendant-appellant.

John W. Palmer, Dyersburg, for plaintiff-appellee.

OPINION

DROWOTA, Justice.

This Workers' Compensation appeal involves the sole issue of "whether the employee, having accepted the offered medical treatment ... but feeling the need of further medical aid, was justified in incurring the expense of additional medical services. A correct answer depends upon careful consideration of the particular circumstances surrounding such action." Tom Still Transfer Co., Inc. v. Way, 482 S.W.2d 775, 776 (Tenn.1972). We find it necessary to remark that, while each of these cases does depend on its circumstances, the statute involved provides for certain procedures regarding medical treatment of compensable injuries and should be followed generally as a matter of course. Ordinarily, the requirements of the statute do not impose unreasonable burdens on either the employer or the employee. In pertinent part, T.C.A. Sec. 50-6-204(a) provides that the employer shall furnish such medical care as is reasonably required for a compensable injury and that:

"(4) The injured employee shall accept the medical benefits afforded hereunder; provided, that the employer shall designate a group of three (3) or more reputable physicians or surgeons ... from which the injured employee shall have the privilege of selecting the operating surgeon or the attending physician...."

Subsection (d) (6) goes on to state that:

"If the injured employee refuses ... to accept the medical or specialized medical services which the employer is required to furnish under the provisions of this law, his right to compensation shall be suspended and no compensation shall be due and payable while he continues such refusal."

The requirements of this statute impose concomitant duties on the employer and employee. The duty of the employer to furnish medical services depends generally on the duty of the employee to give timely notice of the injury as provided in T.C.A. Sec. 50-6-201. The employee has the duty to accept medical services from the employer's designated physicians under T.C.A. Sec. 50-6-204(a)(4), but the employee also has the statutory privilege of choosing from among at least three such physicians. Nevertheless,

"[t]his Court has refused to hold that in every instance the failure of the employer to furnish a panel of doctors renders the employer liable for expenses for doctors chosen by the employee. See Employers Insurance of Wausau v. Carter, 522 S.W.2d 174 (Tenn.1975). Whether an employee is justified in seeking additional medical services to be paid by the employer without consulting him depends upon the circumstances of each case. Rice Bottling Co. v. Humphreys, 213 Tenn. 8, 372 S.W.2d 170 (1963)."

Harris v. Kroger Co., Inc., 567 S.W.2d 161, 163 (Tenn.1978). No dispute exists concerning the compensable nature of Plaintiff's injury. Defendant has admitted that Plaintiff is entitled to medical services and to disability payments, but Defendant argues that Plaintiff was not justified in abandoning the medical services provided to her after her injury on December 11, 1983, and thus that the trial court improperly awarded such amounts to her. Accordingly, we examine the relevant facts of this case.

Plaintiff was employed by Nucare Convalescent Center (Nucare) in Dyersburg, Tennessee, as a Nurse's Aide for well over a year prior to her injury. In April of 1985, the time of trial, she was 34 years old. She is divorced and has one child. She has a ninth grade education with no other educational or vocational training than as a Nurse's Aide. Her duties at Nucare included moving patients and, during an episode of lifting one of the patients, she injured her back. Since December 11, 1983, was a Sunday, after notifying her supervisor of her injury, Plaintiff was eventually sent by her supervisor to the Emergency Room at Parkview Hospital in Dyersburg. The emergency room physician referred her to an orthopedic surgeon, Dr. Lyerly, who hospitalized Plaintiff at Parkview and obtained the neurological consultation of Doctors Weems and Canale, both of Memphis. Dr. Canale recommended that Plaintiff be hospitalized at Methodist Hospital in Memphis for more extensive testing. She remained at Methodist Hospital from December 31, 1983, to January 15, 1984, when she was discharged under the care of Dr. Canale. She continued to see Dr. Canale periodically until February 9, 1984, when Dr. Canale gave Plaintiff a light duty work release slip. Dr. Canale testified in his deposition that he indicated on this slip that Plaintiff was restricted to lifting no more than 25-30 pounds and that she remained under his care and was to return to see him in a month. Although Plaintiff testified that she understood by this that she was to return to Dr. Canale as needed, Dr. Canale testified that she had not been discharged from his care at that time, but he also testified that he had no further treatment for Plaintiff's condition when he released her for light duty work as of February 13, 1984.

Upon returning to Nucare with the light duty work release, Plaintiff was told that she would be contacted when a decision as to whether she would be allowed to resume work had been made, but she was never contacted by a representative of Nucare. Subsequently, Plaintiff again approached Nucare seeking to go back to work; she was then told that no light duty jobs were available. Upset by this refusal, Plaintiff sought the services of an attorney, filing suit on March 7, 1984, to recover her Workers' Compensation benefits. At the same time, she was also experiencing continued pain in her back.

Despite the instructions of Dr. Canale to return to see him, without any notification to her employer, and without any expression to her employer or to Dr. Canale of her dissatisfaction with the services of the doctors she had seen previously, on February 29, 1984, Plaintiff went to see Dr. R. J. Barnett of Jackson, Tennessee, to obtain further treatment for her back injury. She testified that one reason she went to see Dr. Barnett was that he did not require immediate payment for his services. As a result of his examination, Dr. Barnett placed Plaintiff in the Jackson-Madison County General Hospital on March 1, 1984, where she remained until March 20, 1984. During this period and on the recommendation of a neurosurgeon brought in for consultation by Dr. Barnett, surgery was performed on Plaintiff's back on March 3, 1984. Several more occasions of hospitalization followed while she was under Dr. Barnett's care. The medical expenses incurred by Plaintiff were $2,440.00 for Dr. Barnett's services, $11,468.11 at the Jackson-Madison County Hospital, and $487.18 for prescription drugs for a total of $14,395.29.

At no time from the date of her accident until the last occasion on which she spoke to a Nucare representative was Plaintiff ever given a choice from among three designated physicians. While a designation list may have been posted at Nucare, this of itself does not comply with the employer's statutory duty to provide the employee with a choice of physicians, especially under circumstances requiring emergency care.

"Although a list of approved doctors was posted on a company bulletin board, plaintiff was not given an option as to which of the ... doctors on the list he could select, but rather, he was transported by the company nurse to see [a doctor] without being given any choice in the matter."

Bond v. American Air Filter, 692 S.W.2d 638, 641 (Tenn.1985). Regardless, her employer's noncompliance with the statute cannot, standing alone, obviate the employee's duty to accept the medical services of one of the employer's designated physicians. Harris v. Kroger Co., Inc., supra. Nor does Plaintiff's need for further medical treatment relieve her of this duty. "We need to keep in mind the question is not whether employee needed further medical service, but whether employee was justified in obtaining further medical services, without consulting employer, yet expecting employer to pay for same." Rice Bottling Co. v. Humphreys, supra, 213 Tenn. at 13, 372 S.W.2d at 173. She had the right to make a choice from the list of designated physicians, but she did not give the employer an opportunity to comply with the statute.

We recognize that the Workers' Compensation Law is a remedial statute, T.C.A. Sec. 50-6-116, but as Justice Neil pointed out in his dissent in Atlas Powder Co. v. Grant, 200 Tenn. 617, 625, 293 S.W.2d 180, 183-184 (1956):

"Both the employer and employee are confined to the express provisions of the statute.... the Legislature had it in mind that before an employer should be onerated with a heavy surgeon's fee ... he should be consulted and given an opportunity to comply with the statute. Of course, he could not arbitrarily refuse any request made by the employee. A liberal construction of this Statute is not authorized so as to create duties, rights and liabilities which do not exist."

We too are bound by the express terms of the statute. Nothing in this record reveals any sufficient justification for Plaintiff's unilateral abandonment of the medical services that her employer was...