Page v. Cox & Cox, Inc.

• Decision Date: 05 March 2004
• Citation: 892 So.2d 413
• Parties: Donald PAGE v. COX & COX, INC.
• Court: Alabama Court of Civil Appeals

892 So.2d 413

Donald PAGE v. COX & COX, INC.

2020335.

Court of Civil Appeals of Alabama.

March 5, 2004.

Certiorari Denied May 28, 2004.

Allen K. Mitchell, Dothan, for appellant.

William L. Lee III and William W. Nichols of Lee & McInish, P.C., Dothan, for appellee.

Alabama Supreme Court 1030900.

MURDOCK, Judge.

On December 18, 2001, Donald Page ("the employee") filed an action in the Houston Circuit Court against his employer, Cox & Cox, Inc. ("the employer"), seeking workers' compensation benefits for an injury to his knee. The employee alleged that he had suffered the knee injury as a result of an accident arising out of and in the course of his employment when he fell from a ladder on or about October 19, 2000. The employer answered the complaint and subsequently filed a summary-judgment motion. The motion stated in part:

"The undisputed evidence in this case is that, although [the employee] did have an incident on October 19, [2000], that [the employee] had previously been treated in 1996 for this knee, and surgery was recommended at that time; however, [the employee] had no money to pay for the same. According to [the employee's] treating physician for this incident, Dr. Keith Granger, he does not feel the tear is the direct result of his injury of October 19, 2000. Therefore, the undisputed proof is that nothing further is due by [the employer] and summary judgment should be granted in favor of [the employer]."

The summary-judgment motion filed by the employer was accompanied by a photocopy of a letter dated January 13, 2001, from a claims-management company to Dr. Granger, the employee's treating physician. The letter states that "[a]n MRI was obtained on 5-21-01 of [the employee's] right knee, which shows an oblique tear of the posterior and central aspect of the medial meniscus." Among other things, the letter then asks Dr. Granger to make a notation on the letter in response to the following question: "In your opinion, do you feel this tear is a direct result of [the employee's] injury of 10-19-00?" The letter inquires only as to the cause of the "tear"; it does not ask Dr. Granger whether any symptoms or difficulties experienced by the employee since the accident on October 19, 2000, could be attributed to the October 2000 accident or whether that accident could have aggravated or exacerbated a preexisting injury, i.e., the tear. In response, Dr. Granger indicated that the tear was not a direct result of the employee's October 19, 2000, accident.¹

The employee filed a response to the employer's summary-judgment motion, along with his affidavit in support thereof, asserting that his preexisting knee injury had not prevented him from performing his job with the employer in a normal manner between 1996 and the date he fell off the ladder. The response stated, in part:

"According to the documents provided by the [employer] in this case either in March 1994 or March 1996, [the employee] is reported to have received an injury to his right knee while working out in California. Around March 1996, [the employee] was seen by Dr. James DeHaven at Southern Bone and Joint Specialists, P.C. Dr. DeHaven by clinical examination merely `suspected' an anterior cruciate ligament tear and `probably' a medial meniscus tear. However, because [the employee] had no money, no MRI or other definitive radiological or arthroscopic investigation was performed to support the clinical impression. [The employee] was referred to Vocational Rehabilitation at [Southern Bone & Joint Specialists], by Dr. DeHaven."

The employee's affidavit stated:

"On or about March, 1996, I was having discomfort in my knee, not related to any work activities to the best of my knowledge, and went to the doctors at Southern Bone and Joint [Specialists] for an evaluation. The doctor at Southern Bone & Joint [Specialists] examined my knee but did not take any X-rays or any other kinds of tests, at that time. Since that time, in 1996, I have been employed by various employers as a construction laborer and have not had any difficulty performing my duties in the normal manner.

"During my employment with [the employer], I did the following labor before the injury to my knee: laying floor tiles, and when laying floor tiles 99% of the time is spent on the knees, I also did framing, sheet rock hanging, electrical wiring, plumbing, and various other jobs. [The employer] never complained about my ability to work or the quality of my work. I was able to perform these tasks in a normal manner and without any difficulty from my knee. It was not until after the accident that I started having difficulty performing those tasks.

"I was injured while under the employ of [the employer], and performing my normal duties as one of the [employer's] workers or laborers. When I [fell] off the ladder I fell and landed upon my right knee on a sharp object and I was told by my supervisor to go to the Emergency Room in Ozark, for treatment. Since that injury I have had much difficulty with my right knee. Since 1996 and during my employment with [the employer], I have had no disability in my ability to perform my work or duties. I have been called upon, frequently, to climb ladders, do heavy lifting, and other associated construction tasks without any difficulty whatsoever. It was not until the injury occurred, as a result of the fall, that I have suffered the problems that I presently suffer with my right knee."

(Emphasis added.)

On August 26, 2002, the trial court entered an order on the case action summary sheet that stated: "Summary judgment is due to be granted, however, case continued and reset to September 25, 2002." The record indicates that the trial court apparently continued the hearing on the summary-judgment motion to allow the employee the opportunity to submit evidence on the issue of medical causation. On September 23, 2002, the employee filed a motion styled as a "Motion to Amend, Alter or Vacate Order on Defendant's Summary Judgment Motion"; attached to that motion was an unsigned facsimile copy of a letter from Dr. Granger, dated September 18, 2002, in which Dr. Granger opined that the injury the employee suffered as a result of his falling off the ladder while working for the employer had aggravated and exacerbated a preexisting problem.

At the September 25, 2002, summary-judgment hearing, the employer filed a motion to strike Dr. Granger's September 18 letter because, it claimed, the letter was neither authenticated nor certified; the trial court granted the motion to strike and refused to consider the letter. Also on that same date, but after the summary-judgment hearing had been completed, the employee filed an "amended" motion to alter, amend, or vacate the judgment, and he attached to that motion what the employee refers to as a "certified"² copy of Dr. Granger's September 18, 2002, letter. Thereafter, on October 9, 2002, the employee filed a motion to supplement his amended motion to alter, amend, or vacate the judgment; attached to that motion was the purported certified copy of Dr. Granger's September 18 letter and an affidavit executed by Dr. Granger, dated October 8, 2002, in which Dr. Granger stated that the injuries sustained by the employee when he fell off a ladder while working for the employee had aggravated and exacerbated a preexisting problem. The employee subsequently filed a motion asking the trial court to set his pending postjudgment motion for a final hearing; the matter was scheduled for a hearing on December 18, 2002.

At the hearing on December 18, the trial court stated:

"[The employer] filed the Motion for Summary Judgment, which is most certainly proper under the law and ... supports it with proper evidence before the Court. You know, at that point, the law says that [the employee has] got to respond to that by substantial evidence. [The employee was] unable to do so. And the Court said okay, well, due to be granted, but I will give [the employee] thirty days. [Counsel for the employer] is correct; we had a second hearing, which is the way [counsel for the employer] characterized it, a second bite at the apple. The Court did not want to throw it out if proper evidence could be put before the Court. It still wasn't.

"For me to do anything other than deny this motion is to be unfair to [the employer]. You [counsel for the employee] say well, you know, unfair to the employer, unfair to the employee, that doesn't seem right. But, it is a matter of law. It is a matter of following the procedures. For me to ignore the law and ignore these procedures set out in the Alabama Rules of Civil Procedure would be basically to just ignore [the employer] and ignore the law and just be biased, quite frankly. Now, I did make every attempt to give you [counsel for the employee] an opportunity to present this. And now, as I think it was characterized, this is now the third bite at the apple.

"Now, y'all have your remedy. I am not the end all here. It can be appealed, as y'all are well aware. And, if I am wrong, they can tell me I am wrong. Then, we might can get on to this issue....

"So, anyway, [the employee's] Motion to Alter or Amend or Vacate is denied. The Summary Judgment Order of August 26 remains in effect."

On that same date, the trial court entered the following order on the case action summary sheet: "After hearing, [the employee's] motion to alter, amend or vacate is denied for reasons enunciated by the Court. This Court's summary judgment order entered Aug. 26, 2002, and made final Sept. 25, 2002, remains in effect."

The employee appealed. This court remanded the cause to the trial court on May 20, 2003, for the trial court to enter an order in compliance with § 25-5-88, Ala.Code 1975. The trial court subsequently entered, on May 28, 2003, an order complying with § 25-5-88.

The employee contends that the trial court erred in entering the summary judgment in favor of the employer because, he argues, the evidence as to...