Alabama Workers' Comp Blawg

  • 22
  • Jul
  • 2009

IF YOU REFUSE YOU LOSE

Do you have any claims where the claimant is asserting that she is permanently and totally disabled but she has refused a recommended surgical procedure? If so, then you may be able to use a recently decided case to disqualify her from a permanent and total award.

It is well settled that, for purposes of workers’ compensation in Alabama, the employer cannot force a claimant to undergo surgery. Further, if the claimant’s refusal of surgery is deemed reasonable, then her compensation benefits may still be due. See Baptist Memorial Hosp. v. Gaylor, 646 So. 2d 93 (Ala. Civ. App. 1994). However, that very same refusal may now disqualify a claimant from a permanent and total award. In the recent case of Ex parte Saad’s Healthcare Services, Inc., — So.2d —, 2009 WL 886507 (Ala. 2008), a claimant sued her employer for workers' compensation benefits based on physical and psychological injuries she sustained after being stabbed while working. At trial, the employer argued that the claimant’s refusal to submit to psychological treatment made her ineligible for permanent and total benefits. In support of its position, the employer relied on the following exclusion contained in the statutory definition of permanent total disability:  

 

"Any employee whose disability results from an injury or impairment and who shall have refused to undergo physical or vocational rehabilitation ... shall not be deemed permanently and totally disabled."

§ 25-5-57(a)(4)d., Ala.Code 1975. 

 

The Alabama Supreme Court ultimately determined that the psychological and psychiatric treatment that the claimant refused after reaching maximum medical improvement was not "physical or vocational rehabilitation" within the exclusion found in the definition of "permanently and totally disabled." In arriving at this decision, however, the Court noted that the Alabama Workers' Compensation Act does not define the terms "vocational rehabilitation" or "physical rehabilitation." Therefore, the Court undertook to determine the threshold matter of defining the words "physical [and] vocational rehabilitation" as used in the exclusion. The Court first declared that it must consider the "natural, plain, ordinary, and commonly understood meaning" of "vocational rehabilitation" and "physical rehabilitation," respectively, as well as the context of those terms within the Alabama Workers' Compensation Act as a whole. In doing so, it noted that:  

 

"Physical" means "[r]elating or pertaining to the body, as distinguished from the mind or soul or the emotions." Black's Law Dictionary 1147 (6th ed.1990). Thus, "physical rehabilitation" is the provision of goods or services for the purpose of restoring function to a disabled person's body, as opposed to the person's mind or emotions. 

 

Since the psychological treatment refused by the claimant was not offered for the purpose of restoring her physical function, the Court did not consider that treatment "physical" within the meaning of the exclusion found in Ala. Code §25-5-57(a)(4)d.

However, application of the above definition to a recommended surgical procedure provides a much different result. Clearly, a recommended back surgery pertains to the body. Further, back surgery is a service provided for the purpose of restoring function to a disabled person’s body. As such, it stands to reason that, if a claimant refuses to undergo a surgery, then she is refusing physical rehabilitation for the purpose of restoring function to her body. Pursuant to Ala. Code §25-5-57(a)(4)d. and the new definitions provided in Ex parte SAAD’s Healthcare Services, the claimant would therefore be excluded from being deemed permanently and totally disabled.

 

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