Ex parte Kohler Company, Inc., [Ms. 2190081, Jan. 17, 2020] __ So. 3d __ (Ala. Civ. App. 2020). The court unanimously (Moore, J.; Thompson, P.J., and Donaldson, Edwards, and Hanson, JJ., concur) denies the employer’s petition for a writ of mandamus which sought a writ directing the Madison Circuit Court to vacate its order requiring the employer to refer the employee to an orthopedic specialist for a second opinion regarding her alleged work-related left-foot injury.
Acknowledging the continued viability of the rule of Ex parte Brookwood Medical Center, Inc., 895 So. 2d 1000 (Ala. Civ. App. 2004), that when an employee exercises her right to select a second treating physician from a panel of four provided by the employer, the employer has no further obligation to provide a referral to another physician, Ms. *5, the court noted that the trial court “determined that the employer had prematurely provided the panel of four to the employee in September 2018.” Ms. *10.
The court found from the materials presented in the employee’s answer “that the request for a panel of four was necessitated by the failure of the employer to refer the employee to an orthopedic specialist as recommended by Dr. Rea (the initial workers’ compensation physician) and as required by law.” Ms. *12. The court held that “the employer had an affirmative duty to follow the treatment plan recommended by Dr. Rea and that its failure to do so led the employee to request a panel of four unnecessarily. Consequently, the employer is estopped from asserting that the employee exhausted her right to dissent to the care provided by her authorized treating physicians and to seek alternative treatment from a third physician at the expense of the employer.” Ms. *13.
The court noted that “‘[i]t is well settled that the averments of fact in the answer to the alternative writ and mandamus proceedings, when not controverted, are to be taken as true.’” Ms. *11, quoting Tingle v. J.D. Pittman Tractor Co., 267 Ala. 29, 31, 99 So. 2d 435, 437 (1957).