Ex parte Smitherman Bros. Trucking, Inc.

Decision Date24 November 1999
Citation751 So.2d 1232
PartiesEx parte SMITHERMAN BROTHERS TRUCKING, INC. (In re William Harris v. Smitherman Brothers Trucking, Inc.).
CourtAlabama Supreme Court

Bennett L. Pugh, Joseph H. Driver, and W. Bradford Kittrell of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for petitioner.

William P. Roberts II and George H. Howell of Howell, Sarto & Howell, Prattville, for respondent.

HOUSTON, Justice.

Smitherman Brothers Trucking, Inc. ("Smitherman"), petitions for a writ of mandamus directing the trial court to vacate its April 9, 1999, order prohibiting Smitherman, through its medical case manager, from engaging in "any ex parte [oral] communication with any medical provider" for William Harris. Harris, one of Smitherman's employees, was injured on the job and has a workers' compensation claim pending. We grant the petition.1 The sole issue presented by this petition is whether Ala.Code 1975, § 25-5-77(b), requires that all communications between an employer or an employer's case manager and a medical-care provider, concerning an employee's medical care for an on-the-job-injury, be in writing.2

Harris argues here, as he did in the trial court, that § 25-5-77(b) prohibits any oral communications between an employer's case manager and an injured employee's medical-care provider. Harris maintains that all communications must be in writing, either by letter through the mail or by documents transmitted by a fax machine. Smitherman contends that § 25-5-77(b) contains no such prohibition of oral communications. Smitherman further argues that portions of the Alabama Administrative Code clearly contemplate oral communications when they are reasonably necessary for the employer to fulfill its statutory obligation of providing and overseeing an employee's medical care.

Section 25-5-77(a) states:
"[A]n 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, physical rehabilitation, medicine, medical and surgical supplies, crutches, artificial members, and other apparatus as the result of an accident arising out of and in the course of the employment, as may be obtained by the injured employee...."

This provision places an affirmative duty on an employer to pay for an employee's reasonably necessary medical expenses. Implicit in this provision is an employer's right to oversee that treatment so as to ensure not only that the employee receives the proper treatment, but also that that treatment is reasonably necessary and that it is provided in the most efficient and cost-effective manner, without compromising the quality of care. The Legislature reaffirmed this principle in Ala. Acts 1992, Act No. 537, which amended § 25-5-1. Section 1 of that Act contained the following statement of legislative intent:

"It is the intent of the Legislature that the Department of Industrial Relations and the Alabama judicial system shall administer the Alabama Workers' Compensation Act to provide a workers' benefit system to insure the quick and efficient payment of compensation and medical benefits to injured and disabled workers at a reasonable cost to the employers who are subject to the Alabama Workers' Compensation Act....
". . . .
"It is the finding and expressed intent of the Legislature that the existence of a fair and affordable workers' compensation system within the State of Alabama materially contributes to the economic growth and prosperity of the state and all its citizens. It is the further finding of the Legislature that the provision of quality medical services to employees injured in the workplace at a reasonable and fair cost to employers is an important part of a workers' compensation system. The establishment of a Workers' Compensation Medical Services Board as constituted in this amendatory act is considered by the Legislature to be the most appropriate mechanism for insuring that high quality medical services are provided in a cost-effective manner to employees injured in the workplace."

Section 25-5-77(b) reads, in its entirety, as follows:

"If requested to do so by the employer, the injured employee shall submit to examination by the employer's physician at all reasonable times, but the employee shall have the right to have a physician of his or her own selection present at the examination, in which case the employee shall be liable to the physician of his or her own selection for his or her services. The employer shall pay for the services of the physician making the examination at the instance of the employer. If a dispute arises as to the injury, or as to the extent of the disability therefrom, the court may, at the instance of either party or of its own motion, appoint a neutral physician of good standing and ability to make an examination of the injured employee and to report his or her findings to the court, the expense of which examination shall be borne equally by the parties. If the injured employee refuses to comply with reasonable request [sic] for examination, or refuses to accept the medical service or physical rehabilitation, which the employer elects to furnish under this chapter, the employee's right to compensation shall be suspended and no compensation shall be payable for the period of the refusal. A physician whose services are furnished or paid for by the employer, or a physician of the injured employee who treats or makes or is present at any examination of an injured employee may be required to testify as to any knowledge obtained by him or her in the course of the treatment or examination as the treatment or examination related to the injury or the disability arising therefrom. The physician shall, upon written request of the injured employee or his or her employer and without consent of or notice to the employee or employer not making the request, furnish the injured employee or his or her employer a written statement of his or her professional opinion as to the extent of the injury and disability. In all death claims where the cause of death is obscure or is disputed, any interested party may require an autopsy, the cost of which is to be borne by the party demanding the autopsy. The term, `physicians' shall include medical doctor, surgeon, and chiropractor. A hospital, medical clinic, rehabilitation service, or other person or entity providing treatment to an employee or providing facilities at which the employee receives treatment shall, upon the written request of the employee or of the employer, furnish, at a reasonable cost, the employee or the employer a copy of the records, including X-rays and laboratory reports, relating to the treatment of the injured employee. The copy may be furnished without the consent of or notice to the employee or employer not making the request. A physician, hospital, medical clinic, rehabilitation service, or other person or entity providing written statement [sic] of professional opinion or copies of records pursuant to this subsection shall not be liable to any person for a claim arising out of the release of medical information concerning the employee."

(Emphasis added.)

Harris relies exclusively on the sentences emphasized above. When read in context, however, these sentences do nothing more than place an affirmative duty on a treating physician, or an entity operating the facilities where treatment takes place, to provide to an employer or to an employee, on written request, a written professional opinion as to the extent of the employee's injury and any disability or a copy of the records supporting that opinion. Nothing in § 25-5-77(b) indicates that the Legislature intended to impose a blanket prohibition against all oral communications between an employer or an employer's case manager and an employee's medical-care provider. This Court cannot read into a statute words that are not there. A statute clear on its face must be applied, not construed. DeKalb County L.P. Gas Co. v. Suburban Gas, Inc., 729 So.2d 270 (Ala.1998).

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, bill screening, medical necessity determinations, or audits which relate to the services of physicians as defined in Section 25-5-310 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."

Section 25-5-312 provides, in pertinent part:

"The [Workers' Compensation Medical Services Board] shall exercise general supervision in all matters related to the provision of medical services provided by physicians, as defined in Section 25-5-310, rendered to workers under this article. The duties of the board shall include, but are not limited to, the following:
"(1) Study, develop, and implement any necessary and reasonable guidelines for medical services and physician care provided by physicians. In addition, with respect to services provided by physicians, the board shall study, develop, and recommend to the director uniform medical criteria and policies for the conduct of utilization review, bill screenings, and medical necessity determinations for use by insurance carriers, self-insurers, and claims administrators."

Chapter 480-5-5 of the Alabama Department of Industrial Relations Workers' Compensation Administrative Code sets out rules and regulations governing bill screening, medical case management, and utilization review. Section 480-5-5-.01 provides in part:

"(1) These rules are designed to
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