WORKERS' COMPENSATION - GOOD HOPE CONTRACTING COMPANY, INC. V. MCCALL

Good Hope Contracting Company, Inc. v. McCall, [Ms. 2130480, Mar. 20, 2015] __ So. 3d __ (Ala. Civ. App. 2015). The Court of Civil Appeals affirms a holding that the employer did not violate the utilization-review procedures and was not in contempt of the order adopting the Workers' Comp settlement, but reverses the circuit court's award of attorney fees to the plaintiff for his successful challenge to the denial by the utilization-review personnel of an additional epidural block for pain management. Mr. McCall suffered work-related injuries to his neck and low back, requiring him to undergo at least eight surgeries to his back, fusing a number of cervical and lumbar vertebrae. He continued to suffer pain and, over time, received 21 Epidural Steroid Injections ("ESI"). When his authorized treating physician ordered another ESI treatment, a nurse performed a first-level clinical review, an orthopaedic surgeon performed a second-level clinical review, and both determined that this ESI was not medically necessary or appropriate. The reviewing personnel had scant records, and when they called the authorized treating physician for more information, he refused to speak to them without being paid a fee. Thus, the trial court held and the Court of Civil Appeals affirms, the reviewing personnel did not have information in front of them sufficient to show that the procedure was reasonably necessary. However, the circuit court correctly held that the treating physician's later testimony was sufficient to overturn that decision, because he was the only physician who had personally seen Mr. McCall. The administrative procedures regarding utilization-review would have required another level of review if the orthopaedic surgeon providing the second level of clinical review was not a peer of the treating physician, an anesthesiologist with a specialty in pain management. Because the orthopaedic surgeon "normally treats that type of case as the ordering provider," he met the regulatory definition of a "peer." The Court of Civil Appeals declined to read into this requirement the requirement of a "similarly situated health care provider" from ¤6-5-548, Ala. Code 1975. Mr. McCall argued that the employer failed to follow the administrative procedures and thus was in contempt of the 2004 order requiring future medical care. The trial court held that the employer was not in contempt, but nevertheless awarded attorney fees and costs to Mr. McCall regarding his efforts to overturn the utilization-review decision. The Court of Civil Appeals reverses this holding, holding that there is no statutory basis for the award of attorney fees and, because the employer was found not to be in contempt, equity would not support ordering the payment of attorney fees.