Ex parte Brookwood Medical Center, Inc.

• Decision Date: 07 May 2004
• Citation: 895 So.2d 1000
• Parties: Ex parte BROOKWOOD MEDICAL CENTER, INC. (In re Janice Nixon v. Brookwood Medical Center, Inc.).
• Court: Alabama Court of Civil Appeals

895 So.2d 1000

Ex parte BROOKWOOD MEDICAL CENTER, INC. (In re Janice Nixon v. Brookwood Medical Center, Inc.).

2030333.

Court of Civil Appeals of Alabama.

May 7, 2004.

Certiorari Denied August 13, 2004

Kyle L. Kinney and John B. Welsh of Gaines, Wolter & Kinney, P.C., Birmingham, for petitioner.

Lawrence T. King and Christopher L. Roark of Goozée, King & Horsley, LLP, Birmingham, for respondent.

Alabama Supreme Court 1031299.

On Application for Rehearing

PITTMAN, Judge.

This court's opinion of March 26, 2004, is withdrawn, and the following substituted therefor.

Brookwood Medical Center, Inc. ("the employer"), the defendant in a pending action brought by Janice Nixon ("the employee") pursuant to the Alabama Workers' Compensation Act, § 25-5-1 et seq., Ala.Code 1975 ("the Act"), petitions for a writ of mandamus directing the Jefferson Circuit Court to rescind an order compelling the employer to provide the employee with a list of four pain-management physicians. For the reasons stated herein, we grant the petition and issue the writ.

Among other things, the Act provides that an employer of an employee suffering a work-related injury shall pay for "reasonably necessary medical and surgical treatment and attention, physical rehabilitation, medicine, [and] medical and surgical supplies." Ala.Code 1975, § 25-5-77(a). In that regard, the Act substantially mirrors medical-benefit provisions present in workers' compensation laws in all states. See 5 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 94.01[1] (2003). However, all states do not allocate the power to choose who will provide medical and/or surgical services in the same way; while some states permit an employee to choose his or her own physician, either freely or from an approved panel, other states vest that power in employers. Larson at § 94.02[1].

From the original adoption of the Act in 1919 until 1973, Alabama allocated employers the exclusive power to designate a physician or a surgeon to render medical or surgical treatment for which the employer was financially responsible under the Act. E.g., Ala.Code 1940 (Recomp.1958), tit. 26, § 293. Although the Act did provide an exception for "emergency" care, the prevailing rule was that "[o]nly if the employer did not promptly assert its right to furnish medical treatment could the employee select his or her own health care provider." 2 Terry A. Moore, Alabama Workers' Compensation § 17:13 (1998) (footnote omitted).

Between 1973 and 1985, the Legislature amended the Act on three pertinent occasions. The Act was first amended in 1973 by § 21 of Act Number 1062, Ala. Acts 1973, which provided, in pertinent part:

"If the employee is dissatisfied with the initial treating physician selected by the employer and if further treatment is required, the employee may so advise the employer and in such event the employee shall be referred to a second physician selected by the employer. In the event surgery is required, if the employee is dissatisfied with the designated physician, he may so advise the employer and in such event the employee shall be referred to a second physician selected by the employer."

We stated in United States v. Bear Brothers, Inc., 355 So.2d 1133 (Ala.Civ.App.1978), that the 1973 amendment indicated that "the employer has the right to select the medical or surgical attendant who will treat the employee" and that "if the employee is dissatisfied with the physician selected by the employer, he should advise the employer of this fact so that the employer can select another physician." 355 So.2d at 1137-38. We also indicated that "the unjustified obtainment by an employee of medical care from sources other than those selected by the employer without the latter's knowledge or consent may, in appropriate instances, excuse the employer from liability for the costs incurred by the employee." 355 So.2d at 1137; accord, Condry v. Jones Farm Equip. Co., 358 So.2d 1030 (Ala.Civ.App.1978) (where record did not indicate notice to an employer of dissatisfaction of an employee with employer-selected physician, employer did not have duty to pay for medical care rendered by a different physician without employer's authorization).

The Act was again amended in 1975 by § 8 of Act Number 86, Ala. Acts 1975 (Fourth Special Session), so as to add the following pertinent language:

"[I]f the employee is dissatisfied with the second physician selected by the employer, the employee may so advise the employer and in such [event] the employee shall be referred to a third physician selected by the employer. In the event surgery is required, if the employee is dissatisfied with the designated surgeon, he may so advise the employer, and in such event the employee shall be referred to a second surgeon selected by the employer; if the employee is dissatisfied with the second surgeon designated by the employer to perform surgery, the employee may so advise the employer and in such event the employee shall be referred to a third surgeon selected by the employer."

Although the Legislature, in adopting the 1975 amendment to the Act (which was later codified as a portion of § 25-5-77(a), Ala.Code 1975), had given injured employees, in effect, two "rights of refusal" with respect to employer-selected treating physicians and surgeons, we did not construe that amendment as having substantially altered the physician-selection process:

"Section 25-5-77(a)[, Ala.Code 1975,] provides in pertinent part that `the employer shall pay the cost of reasonably necessary' medical expenses arising out of a work-related accident. As provided in that section, the employer is to select the physician, but `[i]f the employee is dissatisfied with the initial treating physician, selected by the employer and if further treatment is required, the employee shall be referred to a second physician selected by the employer.' If the employee is dissatisfied with the second physician, he may notify his employer who will select another physician.... Thus, it is clear from the statute that the selection of the initial physician and of other physicians in the event of employee dissatisfaction is a decision for the employer. It is also clear from the statute that the employee must notify the employer before consulting a physician or before changing physicians except in the case of an emergency. United States v. Bear Brothers, Inc., 355 So.2d 1133 (Ala.Civ.App.1978)."

Jasper Cmty. Hosp., Inc. v. Hyde, 419 So.2d 594, 596 (Ala.Civ.App.1982) (emphasis added). In 1985, the Legislature again amended the Act with respect to physician selection, but it utilized a different approach. Under Ala.Code 1975, § 25-5-77(a), as amended by § 8 of Act Number 85-41, Ala. Acts 1984, and as currently in force, an employee's former right to dissent to two employer-selected physicians or surgeons rather than one was replaced by a single right of dissent, as in the 1973 version of the Act; however, employees were, for the first time, afforded a limited right of selection:

"If the employee is dissatisfied with the initial treating physician selected by the employer and if further treatment is required, the employee may so advise the employer, and the employee shall be entitled to select a second physician from a panel or list of four physicians selected by the employer. If surgery is required and if the employee is dissatisfied with the designated surgeon, he or she may so advise the employer, and the employee shall be entitled to select a second surgeon from a panel or list of four surgeons selected by the employer. If four physicians or surgeons are not available to be listed, the employer shall include on the list as many as are available. The four physicians or surgeons selected by the employer hereunder shall not be from or members of the same firm, partnership, or professional corporation."

In Ex parte Alabama Power Co., 863 So.2d 1099, 1102 (Ala.Civ.App.2003), we summarized the current state of the law with respect to an employer's rights and duties concerning medical care due employees arising from work-related injuries:

"Section 25-5-77(a), Ala.Code 1975, a portion of the Act, provides, among other things, that an employer of an injured worker shall timely pay for that worker's `reasonably necessary medical and surgical treatment and attention, physical rehabilitation, medicine, [and] medical and surgical supplies ... as the result of an accident arising out of and in the course of the employment.' See also § 25-5-77(h). That duty to pay is accompanied under the Act by a corresponding power in the employer to exercise considerable control over the medical care for which it must pay, including the right to choose the employee's physician in the first instance and the right to compel the injured employee to submit to an examination by that physician at all reasonable times. See § 25-5-77(a) and (b), Ala.Code 1975. Although the Act provides that the employee may advise the employer if he or she is dissatisfied with the physician designated by the employer, the employee's remedy in such a circumstance is to select another physician from a panel or list of available physicians (usually four) specified by the employer. See § 25-5-77(a), Ala.Code 1975. Whether designated in the first instance by the employer or chosen by the employee from a so-called `panel of four' provided by the employer, the selected physician becomes the employee's authorized treating physician under the Act."

Having set forth the legal background, we now turn to the dispute between the parties that implicates the foregoing statutes. In July 2002, the employee suffered a work-related injury to her back, which resulted in, among other things, a herniation of one of the employee's vertebral disks. The employee initially underwent treatment for that injury provided by Dr. Carter Morris, a physician chosen by the employer; among other things, Dr. Morris recommended, and later...