August 7th, 2020
workers compensation
PHYSICIAN REFERRALS AND PANELS OF FOUR

In Ex parte Kohler Company, Inc., 29 ALW 4-4 (2190081); 1/17/2020, the Employer, Kohler Company, Inc., (“Kohler Company”) petitioned the Alabama Supreme Court for a writ of mandamus directing the trial court to vacate its Order denying Kohler’s Motion to Vacate the Order granting the employee’s motion to provide a second opinion doctor.  The Alabama Supreme Court denied Kohler’s writ of mandamus.

In July 2018, Mamie White (“the employee”), suffered injuries arising out of and in the course of her employment with Kohler when she stepped into a pothole, twisted her foot and fell.  She began treating for her injuries with Dr. Frank Fancone and then later with Dr. Joseph Rea.  At some point during her treatment, Dr. Rea referred the employee to “Orthopedics”; however, the employee maintained that neither she nor her attorney were aware of the referral.  Kohler did not immediately arrange for the orthopedics referral and instead continued to provide treatment with Dr. Rea.  

In September 2018, the employee requested a panel of four physicians from which she selected Dr. Patrick Boyett to replace Dr. Rea as her authorized treating physician.  Dr. Boyett referred the employee to Dr. Jefferson Sabatini who treated the employee until March 12, 2019 when he released the employee, noting that he had done all he could for her.  The employee requested a second opinion, and Dr. Sabatini agree that this would be “alright”.  Kohler refused to provide a second opinion, and the employee filed her motion to provide a second opinion doctor which was later granted by the trial court.  Kohler filed its Motion to Vacate which was denied, and then, filed its writ of mandamus with the Alabama Supreme Court.

In considering Kohler’s arguments, the Alabama Supreme Court recognized that under Alabama workers’ compensation law, a trial court cannot order the employer to provide additional panels from which an employee may choose a third treating physician.  See, Ex parte Brookwood Medical Center, Inc., 895 So. 2d 1000 (Ala. Civ. App 2004).  However, in this particular case, the Court noted that Kohler prematurely provided the employee with a panel of four when it should have first, arranged for the employee to see an orthopedic specialist as recommended by Dr. Rea in his previous referral.  The Court held that this “oversight” by Kohler necessitated a premature request for a panel by the employee, and accordingly, the Court denied Kohler Company’s writ of mandamus.

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