Kish v. TruGreen Limited Partnership, No. 2090224 (Ala. Civ. App. 03/05/10).
Ruling: The Alabama Court of Civil Appeals held an injured worker was entitled to a panel of four surgeons to select a replacement surgeon despite the employer's previous grant of a panel of four neurologists.
What it means: Alabama's workers' compensation law differentiates between physicians and surgeons. An employee who becomes dissatisfied with the initial treating physician can request a panel of four to choose a new physician. Just because an employer has already provided a worker with a panel of four physicians does not preclude it from being obligated to provide a panel of four surgeons, especially after surgery failed.
Summary: A worker injured his knee, back and head in a compensable accident. He underwent two unsuccessful knee surgeries and was scheduled for a third surgery. He requested a panel of four alternate surgeons. His employer refused, noting the worker had already requested and was granted a change in neurologists. The worker argued he was entitled to a panel of four alternate surgeons despite having received the panel of four neurologists. The Court of Civil Appeals rejected the employer's argument that the worker was only entitled to one change in physicians. It noted that Alabama's law provides both that a worker is entitled to a panel of four different physicians and four different surgeons if he is dissatisfied with the surgeon designated by the employer. The court explained that the furnishing of a panel of physicians does not relieve the employer of the duty to provide an additional panel of four surgeons in the circumstances outlined in the law. It granted the worker's motion to compel the employer to provide him with an alternate panel of surgeons.
The court pointed out that the law was intended to cover situations like the worker's, where his dissatisfaction with his designated surgeon stemmed from the fact that the worker had twice submitted to surgery by that surgeon without lasting recovery. In such cases, the court explained, the law is designed to assure and expedite the healing process and basically demands that the worker receive a panel of four new surgeons from which to choose a new surgical provider.
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May 3, 2010
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