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Federal courts sitting in Alabama cannot hear workers’ compensation claims, even where there is diversity of citizenship between the parties. 28 U.S.C. §1445(c).The Alabama Legislature created a mechanism using this State’s civil court system for providing injured workers limited redress for job-related injuries. The same Legislature made provision to protect injured workers from termination in retaliation for pursuing workers’ compensation claims. See, Ala. Code § 25-5-11.1.Logically, the Legislature intended for the State’s courts to decide workers’ compensation issues, including wrongful termination claims.

In Alabama, there is no privilege “covering communications between a physician and a patient.” Charles W. Gamble, MCELROY’S ALABAMA EVIDENCE § 413.01 (5th ed. 1996). “Communications to a physician or surgeon by a patient or one seeking professional advice are not protected under common law and no such privilege exists in Alabama, absent a statute creating it.” Id. at 1677. Unfortunately, this often leads to situations where medical providers treating injured workers are allowed to discuss the workers’ condition and care with insurance adjusters, case managers, rehabilitation nurses and defense attorneys without the knowledge and consent of the patient. But see, David G. Wirtes, Jr., R. Edwin Lamberth, Joanna Gomez, “An Important Consequence of HIPAA: No more ex parte communications between defense attorneys and plaintiffs’ treating physicians.” AMERICAN JOURNAL OF TRIAL ADVOCACY Vol. 27:1 (2004). Such a rule flies in the face of new privacy rules regarding disclosure of medical information and in a State where there is a doctor-patient privilege when the doctor is a psychiatrist but not an non-psychiatrist M.D., there should be at least a limited privilege for patients to refuse to disclose confidential communications made for the purposes of diagnosis or treatment.

The Workers’ Compensation Act allows the employer (or insurance carrier) to select the medical provider who will treat the injured worker. It seems that in many cases, workers are forced to be seen by medical providers who seem more interested in ensuring a steady flow in the pipeline of patients than in objectively treating the injured worker without regard to who is footing the bill. The Supreme Court has acknowledged the existence of these competing values:

“The first is the value of allowing an employee, as far as possible, to choose his own doctor. This value stems from the confidential nature of the doctor-patient relation, from the desirability of the patient's trusting the doctor, and from various other considerations. The other desirable value is that of achieving the maximum standards of rehabilitation by permitting the compensation system to exercise continuous control of the nature and quality of medical services from the moment of injury. If the injured employee has completely unlimited free choice of his doctor, in some cases he may select a doctor, because of personal relationship or acquaintance, who is not qualified to deal with the particular kind of case, or who at any rate is incapable of providing service of the quality required for the optimum rehabilitation process.”

City of Auburn v. Brown, 638 So. 2d 1339, 1340-41 (Ala. Civ. App. 1993) (cites omitted).

The Court of Civil Appeals noted that “[b]y developing a system for the selection of a treating physician in § 25-5-77, the Alabama Legislature was apparently attempting to strike a balance between the two values.” Id.

In a previous blog, I listed Number 10, The table of scheduled members, which is a rather bizarre list of 34 body parts or combinations of body parts found in Ala. Code § 25-5-57(a)(3) with a corresponding number of weeks a worker may be compensated if he is unfortunate enough to be injured while at work.

Number 9: No recovery for psychological injuries if the mental disorder or mental injury that has neither been produced nor been proximately caused by some physical injury to the body.

The Top 10 List of things I’d like to see changed in the Workers’ Compensation law (Continued)

By Tracy W. Cary, Alabama Workers' Compensation Attorney

In a previous blog, I listed Number 10, The table of scheduled members, which is a rather bizarre list of 34 body parts or combinations of body parts found in Ala. Code § 25-5-57(a)(3) with a corresponding number of weeks a worker may be compensated if he is unfortunate enough to be injured while at work.