Alabama Workers' Comp Blawg

  • 09
  • Mar
  • 2010


Ex parte Nicholas Kish:

On March 5, 2010, the Court of Civil Appeals granted a Writ of Mandamus ordering the Trial Court to grant the employees Motion to Compel a panel of four surgeons.

The employee was sent to an authorized treating physician who referred him to numerous doctors for several injuries. One referral was to an orthopedic surgeon for a knee injury and another was to a neurologist for a head injury. The employee underwent 2 knee surgeries while also being treat for a concussion by the neurologist. The neurologist went on to refer him to another doctor and, at some point, the employee requested a panel of four neurologist, which was given by the employer.  Subsequently, the orthopedic surgeon recommended another surgery and the employee requested a panel of four surgeons. The employer took the position that he was not entitled to another panel of four and the Jefferson County Circuit Court agreed.

As a result, the employee filed a Petition for a Writ of Mandamus seeking an Order that forced the trial court to grant the employee’s motion to compel a panel of four surgeons. The Court of Appeals agreed with the employee and states that §25-5-77 (a) of the Alabama Workers’ Compensation Act states that an employee is entitled to a panel of four "physicians" and is also entitled to a panel of four "surgeons" if surgery is recommeded.

My Two Cents: 

This case did not state that the claimant has a right to two panels and it did not address the situation where the first panel request is for a surgeon.  Although the Court correctly points out that not all physicians are surgeons, it is safe to say that all surgeons are physicians,  For this reason, it can be argued that, if the first request is for a surgeon, then the claimant has used up both of his requests.  Therefore, it is important to have the claimant or his/her attorney put in writing whether the first request is for a physician or a surgeon.   

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