
    Rebecca L. DUNN v. DCH REGIONAL MEDICAL CENTER.
    AV92000184.
    Court of Civil Appeals of Alabama.
    Sept. 17, 1993.
    Rehearing Denied Dec. 10, 1993.
    Certiorari Denied Feb. 25, 1994 Alabama Supreme Court 1930401.
    Richard D. Turner of Turner & Turner, P.C., Tuscaloosa, for appellant.
    R. Larry Bradford of Bradford & Associates, P.C., Birmingham, for appellee.
   ROBERTSON, Presiding Judge.

Rebecca L. Dunn was employed by DCH Regional Medical Center (DCH) as a nurse’s aide when she injured her right knee while at work on February 21, 1990. She received treatment for her injury and, ultimately, surgery. Dr. John Buckley, her treating physician, determined that surgery was necessary. He admitted her into West Alabama General Hospital (WAGH), where the surgery was performed on May 9, 1990.

In December 1991, Dunn filed a workmen’s compensation claim against DCH in Tuscaloosa County Circuit Court. Following an ore tenus proceeding, the trial court entered an order and determined the following, inter alia, with respect to Dunn’s workmen’s compensation claim:

“[Dunn] incurred medical expenses for treatment of her job-related injury, which are found to be reasonable and necessary. They include treatment by Dr. Buckley, physical therapy at Fayette County Hospital, [and] anesthesia for the surgery by Dr. Eugene A. Mangiere. [Dunn’s] surgery was performed at West Alabama [General] Hospital A.M.I. (WAGH), but this treatment was not authorized to be performed at WAGH, and [Dunn] knew it was not authorized.
“... [DCH] is ordered to pay all authorized medical bills including the bill [from] Dr. Buckley, Fayette County Hospital, and Dr. Mangiere.”

(Emphasis added.)

The trial court did not order DCH to pay the WAGH hospital bill, although it did order DCH to pay Dr. Buckley and Dr. Mangiere.

Dunn appeals, contending that the trial court erred in not finding that DCH was liable for the hospital services rendered to Dunn by WAGH.

The record reflects that the surgery was determined to be necessary, with DCH getting a second opinion. The record further reflects that the authorized treating physician, Dr. Buckley, had hospital privileges at both DCH and WAGH. Dunn testified, and it was not disputed, that Dr. Buckley told her that she could choose either WAGH or DCH in which to have her surgery. She testified that at WAGH she would be put to sleep by Dr. Mangiere, with whom she felt comfortable, because he had administered anesthesia to her before and was aware of her asthma problems. Thus, Dr. Buckley admitted Dunn into WAGH for her surgery.

Even though Dr. Buckley had privileges at both DCH and WAGH, DCH contends that it was the only hospital where the surgery was authorized to be performed.

The question becomes: Can an employer “dictate” the hospital that an authorized treating physician may use to perform an authorized surgery?

While DCH happens to be a hospital, it is an “employer” subject to the workmen’s compensation laws of Alabama for purposes of this appeal. If this court holds that DCH, as an employer, could require any necessary surgery to any of its employees to be performed at its own facility, then any other “employer” could likewise dictate that only a particular facility could be used to treat its employees.

Section 25-5-77, Code 1975, provides that the employer shall pay for reasonably necessary surgical treatment, but it does not address whether the employer has the authority to dictate where the surgical treatment may be performed once it has been authorized.

This court has held that a procedure (mye-logram), performed by a physician whose services the treating physician knew were not acceptable to the employer, was authorized because the treating physician had admitted the employee into the hospital and enlisted the services of the other physician. Genpak Corp. v. Gibson, 534 So.2d 312 (Ala. Civ.App.1988).

This court has also noted that “in appropriate instances the employee may recover workmen’s compensation benefits from his employer even though the employee has contracted for medical care from a source other than one provided by the employer.” United States v. Bear Brothers, Inc., 355 So.2d 1133, 1138 n. 2 (Ala.Civ.App.1978). “Under the commonest type of medical benefits clause, the employer is required to furnish ... hospital services.... ” 2 A. Larson, The Law of Workmen’s Compensation § 61.12(a) (1989).

The Supreme Court of Oklahoma has held that the employer cannot dictate to the attending physician the course of procedure that he is to take in the treatment of an employee. Blackstock v. Airington, 153 Okl. 161, 5 P.2d 381 (1931). We hold that, as a general rule, the employer may not dictate to the authorized physician that only a particular hospital or facility can be used to treat an employee.

Dunn was admitted into WAGH by her authorized physician for an authorized surgical procedure. It was stipulated by the parties that the costs of the hospital services rendered by WAGH were reasonable and were necessary. Under the facts of this case, we find DCH to be responsible for those services. The judgment of the trial court is reversed, and the cause is remanded for an entry of a judgment accordingly.

REVERSED AND REMANDED WITH DIRECTIONS.

YATES, J., concurs.

THIGPEN, J., concurs in the result only.

THIGPEN, Judge,

concurring in the result only.

Although I concur with the majority that the cause must be reversed, it appears that the present case as written has the potential of being abused. This case is unique to the extent that the employer and the approved or authorized treatment facility are one and the same. I believe that the issue is not whether an employee has the right to dictate a treatment facility, but whether in this case, authorization or the denial thereof, by the employer was reasonable.

On appeal, our review of workmen’s compensation cases is a two-step process. The first step is to determine if there is any legal evidence to support the trial court’s findings, and if such evidence exists, then the second step is to determine “whether any reasonable view of that evidence supports the trial court’s judgment.” Ex parte Eastwood Foods, Inc., 575 So.2d 91, 93 (Ala.1991). For ore tenus proceedings, that standard of review is “applicable only to the trial court’s findings of fact, not its conclusions of law.” Ex parte Cash, 624 So.2d 576 (Ala.1993).

Ala.Code 1975, § 25-5-77(a), has been interpreted to mean that an employer is not liable for treatment obtained by ah employee without justification or prior notice to' the employer. Kimberly-Clark Corporation v. Golden, 486 So.2d 435 (Ala.Civ.App.1986); United States v. Bear Brothers, Inc,, 355 So.2d 1133 (Ala.Civ.App.1978). Instances of justification for failing to obtain an employer’s authorization prior to incurring medical expenses have been listed by this court as:

“(1) where the employer has neglected or refused to provide the necessary medical care; (2) where the employer has consented to the selection by the employee; (3) where notice of and request for alternative care would be futile; and (4) where other circumstances exist which justify the selection of alternative care by the employee.” Kimberly-Clark at 437.

In Kimberly-Clark, the employee was found to be authorized to seek alternative medical treatment because the employer neglected to or refused to provide the necessary medical care. In the instant case, Dunn testified that because of an asthma condition, she preferred having her surgery at WAGH, where the anesthesiologist was known by her and had successfully treated her in the past. Her special condition which required special care, together with evidence that the two facilities were comparable, are circumstances which could justify a selection of alternative treatment facilities.

In a more recent case, we held that a trial court could have determined that an employee was justified in seeking medical treatment without notice or authorization by the employer because the employer had previously refused to grant such authorization. Combustion Engineering, Inc. v. Walley, 541 So.2d 560 (Ala.Civ.App.1989). The trial court in Combustion Engineering found the medical expenses in question to be reasonable, necessary, and related to the work-related injury, and, under our limited standard of review, we could not find that the trial court erred in finding the employer liable for certain unauthorized medical expenses.

In the case sub judice, it was stipulated that the surgery and its related expense were both necessary and reasonable. Accordingly, DCH’s prior notice to Dunn that it would not approve surgery at WAGH, as well as Dunn’s prior treatment by WAGH’s anesthesiologist, could justify her selection of alternative treatment at WAGH without DCH’s authorization. It also appears that further requests to DCH for Dunn to have treatment at WAGH would have been futile. Ala.Code 1975, § 25 — 5—77(a); Kimberly-Clark, supra.

Our opinions in Kimberly-Clark and Combustion Engineering attempt to limit the instances wherein an employee is justified in seeking medical treatment without notice or authorization by an employer. We should not disregard those restraints.  