Alabama Workers' Comp Blawg

  • 30
  • Mar
  • 2015

Alabama Court Reverses Award of Attorney Fees Where Utilization Review Properly Followed

On March 20, 2015, the Alabama Court of Civil Appeals released its opinion in Good Hope Contracting Company, Inc. v. McCall wherein it upheld an order compelling medical treatment but reversed an award of attorney's fees.���_ At the trial court level, evidence was presented that the authorized pain management doctor recommended a steroid injection.���_�_The request was sent to utilization review (UR) and it was determined not to be medically necessary by an orthopedic surgeon with a subspecialty in pain management.���_ Based on the UR doctor's opinion, the procedure was denied.���_�_The employee then filed a motion to compel the procedure and a motion for contempt alleging that proper UR protocol was not followed.�_�_Specifically, it was alleged that the orthopedic surgeon was not a peer of the authorized pain management doctor because managing pain was not is specialty.�_ The trial court granted the motion to compel the injection but declined to grant to the motion for contempt.�_ Despite this fact, the Court still awarded $18,375.00 in attorney's fees.   On appeal, the Alabama Court of Civil Appeals upheld everything but the award of attorney's fees.�_ In order for such fees to be awards, the employee would have needed to be successful on his motion for contempt.��   My Two Cents:   In the Unites States, attorney's fees are not typically awarded to the prevailing party�_absent a contractual obligation or unless the prevailing party can demonstrate willful and contumacious behavior on the part of the opposing party.���_ This is known as the American Rule.�_ In this case, the Court of Civil Appeals determined that, because proper UR procedures were followed, the employer had a legitimate, debatable and arguable basis for its denial and, therefore, could not be held in contempt of court.�_ Had the Court of Civil Appeals allowed the award of attorney's fees to stand in this case, it would have resulted in similar motions being filed every time employers exercised their lawful right to deny medically unnecessary treatment in a permissible manner. ________________________ 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 atmfish@fishnelson.com or by calling him directly at 205-332-1448.

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