Ex parte Michael Lancaster, Jr. PETITION FOR WRIT OF MANDAMUS (In re: Michael Lancaster, Jr. v. Hunnicutt Mobile Home Service, Inc.) (Tuscaloosa Circuit Court: CV-24-901047).

Rel: September 19, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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ALABAMA COURT OF CIVIL APPEALS
SPECIAL TERM, 2025
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Ex parte Michael Lancaster, Jr.

PETITION FOR WRIT OF MANDAMUS

(In re: Michael Lancaster, Jr.

v.

Hunnicutt Mobile Home Service, Inc.)

(Tuscaloosa Circuit Court: CV-24-901047)

MOORE, Presiding Judge.

Michael Lancaster, Jr. ("the employee"), petitions this court for a

writ of mandamus directing the Tuscaloosa Circuit Court ("the circuit

court") to vacate an order denying his motion to require Hunnicutt Mobile

Home Service, Inc. ("the employer"), to provide him a second panel of four
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physicians pursuant to Ala. Code 1975, § 25-5-77(a), a part of the

Alabama Workers' Compensation Act ("the Act"), Ala. Code 1975, § 25-5-

1 et seq., and to enter an order directing the employer to provide him a

second panel of four physicians. We deny the petition.

Background

The employee was involved in a motor-vehicle accident on April 3,

2024, while working for the employer as a truck driver. The employer

selected Dr. Brian Scott Claytor, an orthopedic specialist, to treat the

employee for, among other things, an injury to his left elbow. The

employer selected Dr. Thomas M. Davis, Jr., an ophthalmologist, to treat

the employee for an injury to his left eye. On May 31, 2024, Dr. Claytor

determined that the employee had reached maximum medical

improvement for his left-elbow injury and released him to return to full

duty. On July 5, 2024, Dr. Claytor determined that the employee did not

need surgery for the left-elbow injury. Also on July 5, 2024, Dr. Davis

determined that the employee had reached maximum medical

improvement for his left-eye injury and released him to return to full

duty.

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On or about August 19, 2024, the employee, through his attorney,

notified the employer that he had become dissatisfied with his medical

treatment, and he requested that the employer supply him with a panel

of four physicians pursuant to § 25-5-77(a). Section 25-5-77(a) provides,

in pertinent part:

"If the employee is dissatisfied with the initial treating
physician selected by the employer and if further treatment is
required, the employee may so advise the employer, and the
employee shall be entitled to select a second physician from a
panel or list of four physicians selected by the employer."

The parties disputed whether the employee was entitled to two panels --

one consisting of ophthalmologists and one consisting of orthopedic

specialists.

On October 29, 2024, the employee commenced the underlying civil

action by filing a complaint against the employer seeking, among other

things, all the medical benefits to which he was entitled under the Act.

On November 14, 2024, the employer provided the employee with a panel

of four alternative ophthalmologists, from which the employee selected

Dr. Thomas Albright to treat his left-eye injury. The employer refused to

provide the employee with a second panel of four physicians from which

to choose an orthopedic specialist to treat his left-elbow injury.

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On December 2, 2024, the employee filed a motion requesting that

the circuit court order the employer to provide him with a second panel

of four alternative orthopedic specialists. On May 15, 2025, the circuit

court entered an order denying the motion. The order provides, in

pertinent part:

"This matter came before the Court on [the employee]'s
Motion for this Court to Order [the employer] to [p]rovide a
[p]anel of [f]our. [The employee] originally requested an
[o]rthopedic [p]anel of [f]our and a separate [o]phthalmology
[p]anel of [f]our. [The employer] denied that request but later
provided an [o]phthalmology [p]anel of [f]our. Under the
language of Ala. Code [1975, §] 25-5-77(a), the [employee] has
exercised his right to a [p]anel of [f]our and the [c]ourt finds
no distinction in Alabama law that allows a separate [p]anel
of [f]our for different injured body parts.

"It is not this [c]ourt's place to expand the law or further
interpret the law where there is no ambiguity regardless of
whether the [c]ourt finds the lack of authorization for a
[p]anel of [f]our for each injured body part to be an omission
or over oversight by the [l]egislature.

"Therefore, [the employee]'s [m]otion is due to be and
hereby is DENIED."

(Capitalization in original.) On June 24, 2025, the employee filed his

petition for the writ of mandamus.

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Standard of Review

"Mandamus is a drastic and extraordinary writ, to be
issued only where there is (1) a clear legal right in the
petitioner to the order sought; (2) an imperative duty upon the
respondent to perform, accompanied by a refusal to do so; (3)
the lack of another adequate remedy; and (4) properly invoked
jurisdiction of the court."

Ex parte Integon Corp., 672 So. 2d 497, 499 (Ala. 1995). An interlocutory

order granting or denying a motion for a panel of four physicians is

reviewable by a petition for a writ of mandamus. See, e.g., Ex parte Kish,

45 So. 3d 772, 774 (Ala. Civ. App. 2010); cf. Colby Furniture Co. v.

Overton, 299 So. 3d 259, 264 (Ala. Civ. App. 2019) (holding that final

judgment resolving controversy over panel-of-four rights was reviewable

by appeal).

Analysis

The employee maintains that the circuit court erred in denying him

a second panel of four physicians because, he says, he has a clear legal

right to the second panel pursuant to § 25-5-77(a). However, the

language of § 25-5-77(a), as applied by this court, and its legislative

history do not support the employee's contention.

By its plain language, § 25-5-77(a) provides that an employer shall

select "the initial treating physician" to provide covered medical care for
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an injured employee. Should the injured employee become dissatisfied

with the treatment being provided by "the initial treating physician,"

upon advising the employer of the dissatisfaction, the injured employee

is "entitled" to select a "second physician" from a panel or list of four

physicians formulated by the employer.

In Ex parte Brookwood Medical Center, Inc., 895 So. 2d 1000 (Ala.

Civ. App. 2004), Janice Nixon, an employee of Brookwood Medical

Center, suffered a work-related back injury. Brookwood authorized Dr.

Carter Morris, an orthopedic surgeon, to treat the injury. Dr. Morris

performed surgery. Following the surgery, Dr. Morris referred Nixon to

Dr. Matthew Berke, a pain-management specialist. Shortly after Dr.

Morris opined that Nixon could return to work, Nixon expressed her

dissatisfaction with Dr. Morris, and she selected a new orthopedic

surgeon, Dr. Martin Jones, from a panel of four supplied by Brookwood.

Dr. Jones referred Nixon back to Dr. Berke, who, in turn, referred her to

Dr. Ronald Moon, for further pain-management care. Nixon requested a

second panel of four physicians from which to choose another pain-

management specialist. Brookwood denied the request, and Nixon filed

a motion in her ongoing civil action to compel Brookwood to provide her

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with a panel of four pain-management specialists. The Jefferson Circuit

Court granted the motion and ordered Brookwood to provide Nixon with

a second panel of four, this one composed of pain-management

specialists. In its order, the Jefferson Circuit Court hypothesized

" 'that a worker could, in a single accident, suffer injuries to
his eye and to his knee. Obviously, such a catastrophe could
trigger treatment by two primary treating doctors, each in a
different field -- perhaps ophthalmology and orthopedics. If
the worker was dissatisfied with the ophthalmologist treating
his eye injury, he would be entitled to a panel from which to
select a replacement. But by so doing, if he were to become
dissatisfied with the orthopedic surgeon treating his knee,
would the law sanction an employer's refusal to provide a
panel from which the worker could select a replacement? This
Court thinks not.' "

895 So. 2d 1009 (Yates, P.J., dissenting). From that premise, the

Jefferson Circuit Court determined that § 25-5-77(a) should be liberally

construed to require an employer to provide a panel of four for each

specialty involved in the treatment of a single work-related injury.

Brookwood filed a petition for the writ of mandamus in this court

to compel the Jefferson Circuit Court to vacate the order requiring

Brookwood to provide Nixon a second panel of four physicians. This court

issued the writ of mandamus. Following the issuance of this court's

opinion on original submission, Nixon filed an application for rehearing,

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arguing that the decision could impair the right of an injured employee

to multiple panels in a case in which the injured employee has multiple

injuries from the same work-related accident. In the substituted opinion

on rehearing, this court determined that

"the Legislature has never simultaneously provided in the Act
for an employee to reject more than one employer-provided
physician and for an employee to be entitled to select a
replacement physician from an employer-nominated panel of
four. As a result, '[o]nce the employee has exercised his or her
right to a panel of four, the [Act] does not provide for
additional panels,' and '[i]f the employee becomes dissatisfied
with the doctor selected from the panel of four, he or she has
no statutory right to request a second panel of four.' 2 Terry
A. Moore, Alabama Workers' Compensation § 17:21 (Supp.
2003).

"We recognize, like the trial court, that the practice of
medicine has changed, in many respects, since the Act was
first passed by the Legislature in 1919. We further
acknowledge the abstract force of the employee's contentions
that the trial court's ordering a second panel of four in this
case might represent a 'logical evolution' in the law, that it
might further the 'beneficent purposes' of the Act, and that
affording employees greater choice in who provides them
medical services might be 'fair.' However, it is not the role of
the judiciary to 'improve upon' legislation such as the Act,
even upon such grounds as necessity based upon the passage
of time. See § 43, Ala. Const. 1901 ('the judicial [department]
shall never exercise the legislative and executive powers, or
either of them; to the end that it may be a government of laws
and not of men'). In this specific context, the Alabama
Supreme Court has emphasized that while we must liberally
construe the Act to effectuate its beneficent purposes, 'such a
construction must be one that the language of the statute

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"fairly and reasonably" supports.' Ex parte Dunlop Tire Corp.,
706 So. 2d 729, 733 (Ala. 1997) (quoting Ex parte Beaver
Valley Corp., 477 So. 2d 408, 411 (Ala. 1985))."

895 So. 2d at 1005-06 (second emphasis added). In responding to Nixon's

application for rehearing, this court stated:

"The employee contends on rehearing that to allow only
one panel of four 'surely is not consistent with legislative
intent'; she posits that in some instances, such as where an
employee suffers multiple injuries, it is possible that an
employer could assign, or a designated treating physician
could refer, an employee who has previously exhausted his or
her panel rights to an incompetent physician. To the contrary,
as this court recognized in City of Auburn v. Brown, [638 So.
2d 1339 (Ala. Civ. App. 1993),] the physician-selection system
set forth in § 25-5-77(a) operates under the understanding
'that the physicians, who are approved by the employer as
treating physicians, are competent medical doctors equipped
with the knowledge to properly and adequately treat the
injuries which are presented to them by the employee.' 638
So. 2d at 1341. Even were an employer or a treating physician
to undermine that understanding by selecting an incompetent
physician, however, our law recognizes that there are certain
instances in which an employee's obtaining treatment other
than that offered by the employer may properly be deemed
justified, including where the employer has 'neglected or
refused' to provide necessary medical care. See id.

"In this case, the employer was wrongly compelled, in
contravention of § 25-5-77(a), to provide a second panel of four
physicians after the employee had already expressed
dissatisfaction with a former treating physician and had
already been allowed to choose another physician from an
employer-nominated panel of four. Because we conclude that
the order under review deprives the employer of its rights
regarding the selection of a treating physician, we grant the

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employer's petition for a writ of mandamus. The trial court is
hereby directed to rescind its December 9, 2003, order. See Ex
parte Wal-Mart Stores, Inc., 794 So. 2d [1085,] 1089 [(Ala.
2001)]."

895 So. 2d at 1006 (emphasis added).

As this court has explained in several subsequent cases, Brookwood

holds that an injured employee who has exercised his or her right to a

panel of four physicians has no statutory right to request a second panel

of four physicians pursuant to § 25-5-77(a). See Kish, 45 So. 3d at 776;

Colby Furniture Co., 299 So. 3d at 264 ("Once a second authorized

treating physician has been selected, the employee has no statutory right

to additional panels of four from which to select a new physician."); and

Ex parte Kohler Co., 299 So. 3d 267, 271 (Ala. Civ. App. 2020) ("The court

[in Brookwood] held that, under the current statutory scheme, once an

employee has exercised his or her right under § 25-5-77(a) to select a

second authorized treating physician from a panel of four provided by the

employer, a trial court cannot order the employer to provide any

additional panels from which the employee may choose a third authorized

treating physician.").

The employee argues, however, that no case has specifically

addressed the situation in which an employee has suffered distinct

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injuries to two different parts of the body and the employer has selected

two "initial treating physician[s]" to treat the distinct injuries. In

Brookwood, this court directly addressed that scenario in the substituted

opinion on rehearing, and a majority of this court rejected the proposition

that an injured employee should have a right to a second panel of four in

that circumstance; only Presiding Judge Yates agreed with that

proposition in her dissent. 895 So. 2d at 1007-10 (Yates, P.J., dissenting).

Even if that part of the Brookwood opinion addressing multiple injuries

is dicta, it is still persuasive authority that is "worthy of consideration"

in this case. Dowling v. Texas Co., 248 Ala. 96, 102, 26 So. 2d 590, 595

(1946).

"Dictum may be persuasive and useful and need not be
wholly disregarded. It is entitled to respectful consideration,
as expressing the view of the judge, and may be followed if
sufficiently persuasive because of the soundness of its
reasoning. ...

"Although mere repetition does not elevate obiter dicta
to the level of binding precedent, approval of dicta in current
decisions may ultimately clothe it with the same, or
substantially the same, strength and importance attached to
precedents, especially if the dicta involve the construction of
a statute that has remained substantially the same."

21 C.J.S. Courts § 224 (2016) (footnotes omitted).

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In Kish, supra, this court held that an employee who has exercised

the right to a panel of four physicians also has a right to a panel of four

surgeons when surgery is needed, but our decision was based on another

clause in § 25-5-77(a) that provides: "If surgery is required and if the

employee is dissatisfied with the designated surgeon, he or she may so

advise the employer, and the employee shall be entitled to select a second

surgeon from a panel or list of four surgeons selected by the employer."

In this case, the employee presented no evidence indicating that he

requires surgery for his left-elbow injury, so he has no right to a second

panel of four pursuant to Kish. In Kohler, supra, this court determined

that, in certain circumstances, an employer can be equitably estopped

from asserting that an employee has exhausted the right to a panel of

four physicians; however, the employee does not assert this theory in his

mandamus petition. He claims only that he has a clear right to a second

panel of four as a matter of law, which is contradicted by Brookwood and

its progeny.

Furthermore, allowing an injured employee more than one panel of

four physicians would upset the balance struck by the legislature 40

years ago. As explained in Brookwood, 895 So. 2d at 1001-03, at one time,

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the former Alabama Workmen's Compensation Act, Ala. Code 1975,

former § 25-5-1 et seq., and Ala. Code 1940 (1958 Recomp.), Title 26, §

253 et seq., gave employers complete control over the selection of an

injured employee's treating physician. In 1973, the legislature amended

that act to allow an injured employee who was dissatisfied with the initial

treating physician to demand that a second physician be selected by the

employer. Ala. Acts 1973, Act No. 1062, § 21 (amending Ala. Code 1940

(1958 Recomp.), Title 26, § 293). In 1975, the legislature authorized an

injured employee to demand a third physician. Ala. Acts 1975, Act. No.

86, § 8 (Fourth Special Session) (amending Ala. Code 1940 (1958

Recomp.), Title 26, § 293) . Finally, in 1985, the legislature settled on the

current panel-of-four procedure allowing an injured employee who has

become dissatisfied with the initial treating physician to select a second

physician from a panel of four physicians formulated by the employer.

Ala. Acts 1985, Act No. 85-41, § 8 (amending former § 25-5-77(a)). The

1985 amendment to former § 25-5-77(a) repealed the right of an injured

employee to demand that his or her employer provide a third physician,

and the legislature did not include a right to a second panel of four should

the injured employee become dissatisfied with his or her first selection.

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In adopting the 1985 amendment to former § 25-5-77(a), the

legislature obviously intended that injured employees should no longer

have a right to repetitive demands for alternative treating physicians,

which demands make treatment unwieldy and more expensive. Former

§ 25-5-77(a) was readopted verbatim in the current Act, which was also

motivated by the legislature's desire to contain the costs of medical

treatment. See Ala. Acts 1992, Act No. 92-537, § 1. As our supreme court

has explained, § 25-5-77(a) is intended to assure that an employer retains

the primary right to oversee the medical treatment of its injured

employee to ensure "that it is provided in the most efficient and cost-

effective manner." Ex parte Smitherman Bros. Trucking, Inc., 751 So. 2d

1232, 1233 (Ala. 1999). After 40 years, this court cannot disrupt the

system by adding a right to a second panel of four physicians that the

legislature did not include in the Act but, instead, specifically rejected.

The plain language of § 25-5-77(a), and the legislative history

behind that language, permits only one panel of four physicians to be

provided to an injured employee. This court cannot, in the guise of liberal

construction, amend the statute to provide for an additional panel of four.

See generally Mallisham v. Kiker, 630 So. 2d 420, 423 (Ala. 1993).

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Perhaps, as a matter of fairness, § 25-5-77(a) should include a provision

allowing for multiple panels of four when an injured employee requires

multiple physicians in multiple specialties to treat his or her work-

related injuries, but "this court may not correct that perceived inequity

by reading into the Act a substantive rule of law that its language does

not fairly support." Fab Arc Steel Supply, Inc. v. Dodd, 168 So. 3d 1244,

1258-59 (Ala. Civ. App. 2015). This court cannot invade the function of

the legislature to amend a law that it perceives to be antiquated or

deficient. See Brookwood, 895 So. 2d at 1006; see also Ala. Const. 2022,

Art. III, § 42(c) (providing, in pertinent part, that "the judicial branch

may not exercise the legislative or executive power"). The decision

whether an injured employee should receive more than one panel of four

physicians rests exclusively with the legislature, not this court.

Conclusion

A writ of mandamus may issue only if the petitioner has a clear

legal right to the requested relief. See Ex parte Publix Super Markets,

Inc., 963 So. 2d 654, 657 (Ala. Civ. App. 2007). Because the employee

does not have a clear legal right to a second panel of four physicians from

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which to choose an orthopedic specialist to treat his left-elbow injury, the

petition is due to be, and hereby is, denied.

PETITION DENIED.

Edwards, Fridy, and Bowden, JJ., concur.

Hanson, J., dissents, with opinion.

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HANSON, Judge, dissenting.

In this case, it is not disputed that the employer, Hunnicutt Mobile

Home Service, Inc., authorized two specialist physicians (one orthopedist

and one ophthalmologist) to treat the injuries of the employee, Michael

Lancaster, Jr., and while the second sentence of Ala. Code 1975, § 25-5-

77(a), does use the singular "initial treating physician" in connection with

an employee's right to seek a panel of four physicians, it is well settled

that, with respect to the form of words used in the Code of Alabama, "[t]he

singular includes the plural, and the plural the singular." Ala. Code

1975, § 1-1-2. Further, I view the issue as one of first impression because

Ex parte Brookwood Medical Center, Inc., 895 So. 2d 1000 (Ala. Civ. App.

2004), did not involve a factual situation in which an employer had

selected more than one treating physician for an employee who had

suffered multiple workplace injuries; the true holding of that case is that

a disgruntled employee is afforded one and only one opportunity to seek

a panel of four physicians to replace any particular employer-selected

treating physician or surgeon. See Ex parte Kish, 45 So. 3d 772, 776 (Ala.

Civ. App. 2010). I would grant the petition for the writ of mandamus;

therefore, I respectfully dissent from the majority's denial thereof.

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