Brown v. Wal-Mart Stores, Inc.

• Decision Date: 01 November 2002
• Citation: 864 So.2d 1100
• Parties: Vivian Lucille BROWN v. WAL-MART STORES, INC.
• Court: Alabama Court of Civil Appeals

864 So.2d 1100

Vivian Lucille BROWN v. WAL-MART STORES, INC.

2000925.

Court of Civil Appeals of Alabama.

November 1, 2002.

Certiorari Denied May 16, 2003.

Robert W. Lee, Jr., and Wendy N. Thornton of Lee & Thornton, P.C., Birmingham, for appellant.

Charles F. Carr and Joseph H. Driver of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellee.

Alabama Supreme Court 1020278.

MURDOCK, Judge.

In this case, an employee challenges the validity of a "utilization review" conducted on behalf of her employer under our Workers' Compensation Act, Ala.Code 1975, § 25-5-1 et seq. ("the Act"). The trial court rejected that challenge. We affirm.

The record reveals the following: On November 7, 1992, Vivian Lucille Brown suffered an injury to her left arm and left shoulder while working for her employer, Wal-Mart Stores, Inc. In May 1994, Brown filed an action seeking workers' compensation benefits from Wal-Mart. In January 1996, the parties entered into a settlement agreement relating to Brown's injury and filed the settlement agreement with the trial court for its approval. The settlement agreement provided, in pertinent part:

"The parties have made it known to the Court that they have reached an agreement to settle this claim, subject to the approval of the Court, for the sum of $30,000.00 as a full and complete settlement of any and all claims for [workers'] compensation benefits under the [Workers'] Compensation Act of Alabama, including temporary total disability, permanent partial or permanent total disability benefits, with the defendant remaining liable to the plaintiff for medical benefits as required by the [Workers'] Compensation Act of Alabama which was in effect at the time of said accident."

(Emphasis added.) The trial court entered a judgment adopting the settlement agreement "as the Court's Order in this case." After the judgment was entered, Brown continued to experience chronic pain related to her injury, and Wal-Mart continued to provide medical benefits to her—primarily by paying for various pain medications.

In August 1999, Dr. Jeff Pirofsky, Brown's authorized treating physician, referred Brown to Dr. Sandra Durham for pain management treatment. Dr. Durham prescribed various narcotic pain medications to treat Brown's chronic pain. Wal-Mart became concerned about the long term use of potentially addictive narcotic pain medications and submitted Dr. Durham's proposed treatment plan for utilization review. In May 2000, Dr. Robert Ross, a utilization-review panel physician, opined that "it is not appropriate to treat chronic pain (which is not caused by cancer or terminal illness) with narcotics." Based on Dr. Ross's opinion, Wal-Mart stopped paying for the narcotic pain medications. When Wal-Mart stopped paying, Brown stopped taking the narcotic pain medications because, she says, she cannot afford to pay for them.

In November 2000, Brown filed a motion seeking to have Wal-Mart held in contempt, alleging that Wal-Mart had improperly denied authorization for payment of the medications prescribed Dr. Durham. At a hearing on her motion, Brown withdrew her request to hold Wal-Mart in contempt and proceeded on what the trial court characterized as a "motion requesting the trial court to compel Wal-Mart to authorize and pay for medical treatment." The trial court denied that motion based on Brown's failure to exhaust the procedures or remedies available under the employer's utilization-review procedures; the trial court entered a judgment accordingly. Brown appeals from that judgment.

Section 25-5-293(k), Ala.Code 1975, was added to the Act by amendment in 1992, see Act No. 92-537, 1992 Ala. Acts § 40(k).¹ It allows an employer to conduct "medical-necessity determinations" and "utilization review[s]," but only if the employer adopts and follows procedures for doing so that are consistent with state regulations contemplated by the Act. See generally, Ala.Code 1975, § 25-5-1(19) (defining "utilization review"). Section 25-5-293(k) provides, in pertinent part:

"Notwithstanding any other provision of this section to the contrary, it is the intent of this section that any and all utilization review ... [and] medical necessity determinations, ... which relate to the services of physicians ... shall only be conducted under and in accordance with policies, guidelines, or regulations which have been jointly approved by the Workers' Compensation Medical Services Board and the director [of the Department of Industrial Relations] under the provisions of Section 25-5-312, as and when such policies, guidelines, criteria, and regulations are adopted in a final and effective form pursuant to the Alabama Administrative Procedure Act.... If such above referenced pending policies, guidelines, criteria, or regulations have not become effective in a final form pursuant to the Administrative Procedure Act ... then until such time as they are finally adopted ... utilization review, [and] medical necessity determinations ... [shall be conducted] in a manner that is consistent with similar practices of a majority of commercial insurance companies authorized to issue policies of health insurance in this state."

(Emphasis added.)

In accordance with § 25-5-293(k), the director of the Department of Industrial Relations promulgated rules and regulations relating to utilization review, bill screening, medical-necessity determinations, and audits, see Ala. Admin. Code, r. 480-5-5-.01 et seq. ("the regulations"), which became effective September 16, 1996.² The regulations contemplate a process of potentially five steps that now must serve as the predicate for any decision by an employer to deny payment for a medical treatment prescribed by an authorized physician. See § 25-5-293(k) (providing that medical-necessity determinations "shall only" be conducted in accordance with the regulations "as and when such... regulations are adopted in a final and effective form pursuant to the Alabama Administrative Procedure Act"). The first four steps of this process constitute what is known as a "utilization review."³

On appeal, Brown first argues that the application to this case of a utilization-review procedure adopted by her employer pursuant to regulations adopted after her injury occurred amounts to an impermissible retroactive application of the regulations. Specifically, Brown argues that, because the regulations became effective in 1996, after her 1992 injury, neither those regulations nor any procedures adopted pursuant to those regulations can properly be applied to medical treatments prescribed for her injury.

It is undisputed that Wal-Mart adopted medical-necessity and utilization-review procedures consistent with the regulations, and that it followed those procedures in denying payment for the disputed medical treatment. While it is true that Brown's injury occurred before the effective date of the regulations, the treatment at issue was first recommended by Brown's physician— and therefore first became an issue—in 2000. At that time, Wal-Mart was operating under utilization-review procedures it had previously adopted in accordance with regulations that, by then, had been in effect for approximately four years.⁴ We therefore reject Brown's first argument; the regulations were not applied retroactively in this case.

Brown next contends that the utilization-review regulations are a nullity because, she says, they are not in harmony with an employee's rights under § 25-5-77(a), Ala.Code 1975, regarding medical treatment. Section 25-5-77(a) ends as follows:

"In addition to the compensation provided in this article and Article 4 of this chapter, the employer ... shall pay an amount not to exceed the prevailing rate or maximum schedule of fees as established herein of reasonably necessary medical and surgical treatment and attention... [and] medicine ... as the result of an accident arising out of and in the course of employment.... All cases of dispute as to the necessity and value of the services shall be determined by the tribunal having jurisdiction of the claim of the injured employee for compensation."

(Emphasis added.) Brown argues that the utilization-review regulations allow an unauthorized nontreating physician to alter the course of an employee's medical treatment prescribed by an authorized treating physician, and thus, she argues, they provide an avenue for an employer to dictate the course of an employee's medical treatment, contrary to § 25-5-77(a), Ala.Code 1975. Citing State v. Maddox Tractor & Equipment Co., 260 Ala. 136, 69 So.2d 426 (1953), and Miller v. United States, 294 U.S. 435, 55 S.Ct. 440, 79 L.Ed. 977 (1935), Brown argues that, because the regulations yield a result contrary to § 25-5-77(a)'s provision for disputes over the necessity of medical services to be resolved by a court of law, the regulations should be considered invalid.

Brown's argument is apparently premised on the notion that, after...