Recently, a client of this law firm was presented with a situation where the authorized treating physician made a referral to a specific pain management facility. Our client felt that section 25-5-77 granted the employer the right to choose the doctor and not the authorized treating physician. The client refused to authorize the facility and the employee’s attorney filed a motion to compel and a request for sanctions. Prior to filing a response, we submitted a letter to the authorized treating physician which solicited his reasons for choosing the facility in question. We further asked him to state whether or not his choice was any better than the physician our client preferred and, if so, to explain why. In response, the doctor stated that our client’s choice was just as good as his. In our filed response, we acknowledged that prior case law had empowered doctors with the ability to make referrals to other specific doctors. However, we argued that it was assumed in the prior case that the doctor had a medical reason for making the specific referral. Since our treating physician did not provide a medical reason for choosing that particular facility, we argued that the choice should revert back to the employer as set forth in 25-5-77. After filing the response and supporting physician letter, the employee’s attorney withdrew the motion and request for sanctions and allowed our client to choose the doctor. Although this is not a reported decision, it certainly provides employers and adjustors with a blue print for retaining control of the employee’s medical treatment in the future.

The Indiana Court of Appeals has ruled that an employer must pay for weight-loss surgery for an obese worker to ensure the success of another operation for a back injury he suffered at work. According to the plaintiff’s attorney in that case, courts in Ohio, California, Oregon, Florida and South Dakota have reached similar decisions. The most recent was in Oregon where the Supreme Court ruled that workers' compensation insurance was responsible for gastric bypass surgery to ensure that a man's knee replacement surgery was effective.

Fluor Enterprises, Inc., d/b/a Fluor Signature Services v. Darrell Lawshe:

On February 6, 2009, the Alabama Court of Civil Appeals considered the issue of whether or not an employee can choose his own doctor when compensability is denied and later judicially determined to be compensable. In this case, the employer denied the claim and the employee went to his own doctor. When the trial court ruled that the claim was compensable, the employer sought to have its own doctor treat the employee. the trial court ruled that the employee could keep using the doctor of his own choosing. On appeal, the Court of Civil Appeals affirmed the trial court’s decision.

Practice Pointer:  Employers must now consider the fact that they may lose the right to choose the doctor when compensability is denied and the claim is later deemed compensable.