Alabama Workers' Comp Blawg

Alabama Employee Gets a Second Opinion Doctor Despite Previously Exhausting her Panel of Four

On January 17, 2020, the Alabama Court of Civil Appeals released its opinion in the matter styled Ex parte Kohler Company, Inc.  In Kohler, the Court considered a Petition for Writ of Mandamus filed by the employer as the result of a trial court order requiring it to authorize a referral to a doctor for a second opinion after the employee had previously exercised her right to select a doctor from a panel of four.  Specifically, the employee injured her left foot and was initially treated by two occupational medicine doctors.  On September 19, 2018, one of the authorized occupational medicine doctors authored a note which made a referral to an orthopedic specialist.  Just five days later on September 24, 2018, the employee called the claims adjuster and asked that she be provided a panel of four physicians.  It is undisputed that the employee was represented by counsel at this time.  A panel of four orthopedic surgeons was offered to the employee.  She ultimately selected an orthopedic surgeon from the panel and received treatment.  When the panel doctor could not offer a diagnosis, the employee asked for a second opinion and he agreed that a second opinion would be okay.  The employer did not authorize a referral for a second opinion.  The employee filed a motion to compel the referral which the trial court granted.  The employer’s efforts to vacate the order were unsuccessful and so it timely filed a Petition for Writ of Mandamus asking the Court of Appeals to direct the trial court to vacate the order.  The Court of Appeals ultimately denied the employer’s petition rationalizing that it was equitably unjust for the employer to successfully take the position that the employee burned her panel when the employer had not followed the recommendation of the authorized occupational medicine doctor.

My Two Cents

The employee requested a panel of four just 5 short days after the occupational medicine doctor put an orthopedic referral in his notes.  It is not clear when that referral was actually shared with the claims adjuster.  Even if the adjuster knew about the orthopedic referral at the time the employee requested the panel (and there is nothing in the opinion to suggest that she did), to suggest that the employer failed to follow the recommendation of the occupational medicine doctor by not making the referral within 5 days of the recommendation is a little unfair.  Although it seems pretty clear that the orthopedic referral at least became known to the adjuster after the request for a panel was made (panel was comprised of 4 orthopedic surgeons), that is of no consequence since, by that time, the request for a panel had already been made.  Further, it is the opinion of the Court that the employer failed to follow a recommendation (that it may or may not have known) of an authorized doctor within 5 days of the recommendation being made.  Even if you consider what transpired after the call, the employee was represented when she requested the panel of four.  She and her attorney both knew that she had just been seen by an occupational medicine doctor.  Yet they elected to request a panel without so much as even inquiring as to what the occupational medicine doctor had to say as the result of the last appointment.  The fact that the panel was comprised of orthopedic surgeons instead of occupational medicine doctors should have been a huge clue to her attorney that such a referral had been made. 

About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.