BE & K, INC. v. Weaver

• Decision Date: 27 August 1999
• Citation: 743 So.2d 476
• Parties: B E & K, Inc. v. Grover Cleveland WEAVER, Jr.
• Court: Alabama Court of Civil Appeals

743 So.2d 476

B E & K, Inc. v. Grover Cleveland WEAVER, Jr.

2980240.

Court of Civil Appeals of Alabama.

August 27, 1999.

Charles F. Carr, Jeffrey B. Carr, and Joseph H. Driver of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Daphne, for appellant.

John C. Brutkiewicz and D.E. "Skip" Brutkiewicz, Jr., of Brutkiewicz Attorneys, Mobile, for appellee.

YATES, Judge.

B E & K, Inc., on February 20, 1998, petitioned the Circuit Court of Mobile County for the resolution of a disputed workers' compensation claim, pursuant to § 25-5-81, Ala.Code 1975, stating that it had paid both compensation benefits and medical benefits to Grover Cleveland Weaver, Jr., for an alleged injury he sustained during the course of his employment with B E & K. B E & K alleged that it had learned of certain misrepresentations that Weaver had made regarding his prior physical history, and it sought to estop Weaver from claiming benefits, because of these misrepresentations, pursuant to § 25-5-51, Ala.Code 1975. In the alternative, B E & K further alleged that Weaver did not sustain his injuries as the result of an accident that arose during the course of his employment with B E & K.

On August 31, 1998, Weaver moved to reinstate his temporary total-disability benefits, alleging that he had not yet reached maximum medical improvement and that B E & K had "cut off" his benefits. Weaver argued that B E & K's defense that he had had a preexisting medical condition and/or did not suffer a workplace injury was not supported by the medical evidence.

On September 23, 1998, Weaver answered B E & K's petition and counterclaimed, seeking to recover workers' compensation benefits for injuries he sustained to his back during the course of his employment with B E & K, and alleging that as a proximate result of these injuries he is permanently and totally disabled. B E & K answered Weaver's counterclaim on that same day.

On September 24, 1998, the court, by agreement of the parties, tried only the issue of compensability of Weaver's alleged injuries. Following an ore tenus proceeding, the court, on October 29, 1998, entered the following "Findings of Fact, Conclusions of Law, and Judgment":¹

"This cause having come before the court on September 24, 1998, on both parties' motion to determine employer's liability to provide workman's compensation benefits; opposing parties together with their respective counsel appearing; evidence being presented by deposition, live testimony and documents; and certain facts having been stipulated; and on consideration of all the evidence, the court finds as follows:

"1. On or about July 25, 1997, the employee suffered a herniated disc between L-4 and L-5 and a herniated disc between L-5 and S-1 while working in the line and scope of his employment with the employer and as a result of lifting heavy items in the work yard;

"2. The employee had falsely represented on his job application that he had not had any previous back injuries, when in fact he had suffered a fracture of his back at the L-3/L-4 level in an automobile accident in 1990 which corrected itself by subsequent fusion, without surgical intervention;

"3. The employer, after being made aware of the misrepresentation, began making temporary total benefit payments and paid for the medical treatment of the employee—it continued to do so for thirteen (13) months, but discontinued payments after August 6, 1998;

"4. Dr. Herbert V. Allen, the employee's treating orthopedic surgeon, testified that: the employee suffered his present injury during his employment and while engaged in repeated lifting; that had the employee been suffering from his present condition prior to his work with the employer, he would not have been able to perform the work according to the job description of the employer; that the employee's injury is a new injury located at a level two discs below the old injury; that the employee's present maladies have no genesis in the employee's fracture of 1990, nor is the 1990 fracture a contributing factor to his present illness. The court adopts the findings and opinions of Dr. Allen and finds them to be proven by a preponderance of the evidence;

"The court, upon consideration of all the evidence, and the stipulated facts, does hereby ORDER, ADJUDGE, and DECREE as follows:

"The employer is liable for the employee's present injury. The court orders that the employer is to pay to the employee weekly benefits at the employee's compensation rate continuously until further ordered by this court.

"All reasonable, necessary future medical expenses related to the physical injuries to the employee's back will be the obligation of the employer as provided by Section 25-5-77, 1975 Code of Alabama.

"The court hereby awards a judgment against the employer in the amount of Five Thousand Five Hundred Twenty Six and 84/100 [dollars] ($5,526.84) ..., which equals overdue compensation of 11.66 weeks at Four Hundred Seventy Four and NO/100 [dollars] ($474.00) ... (comp.rate) payable to the employee and his attorney of record.

"The employee is awarded a judgment pursuant to § 25-5-59 in the amount of Eight Hundred Twenty Nine and 03/100 [dollars] ($82[9].03) ..., which is equal to fifteen [percent] (15%) of the overdue payment, payable to the employee and his attorney of record.

"The employer is to pay weekly compensation benefits until further ordered by this court in the amount of Four Hundred Seventy Four and NO/100 [dollars] ($474.00) ... payable to the employee and his attorney of record.

"The employee is awarded a judgment against the employer in the amount of One Hundred Sixty One and 57/100 [dollars] ($161.57) ... pursuant to Section 25-5-89, Code of Alabama, 1975, which represents costs and expenses to the employee in prosecuting this action to date."

We must first determine whether the judgment is an appealable order. Weaver argues that the court's judgment is not conclusive as to the parties and, therefore, is not an appealable order. He contends that there are matters between the parties yet to be decided and that because B E & K did not obtain certification pursuant to Rule 54(b), Ala. R. Civ. P., the appeal is due to be dismissed. We note that in a workers' compensation case the decision of the judge hearing the case shall be conclusive and binding between the parties. § 25-5-81, Ala.Code 1975. A party may appeal to the appropriate appellate court from any final judgment of the circuit court or probate court. Mike Makemson Logging v. Colburn, 600 So.2d 1049 (Ala.Civ.App.1992). An appellate court is without jurisdiction to review a matter where no final judgment has been entered. Id. The determination whether a judgment is final does not depend on the title of the order; rather, the determination whether a judgment is final depends on whether it sufficiently ascertains and declares the rights of the parties. Id. Finally, a judgment in a workers' compensation case must contain a statement of the law and facts and conclusions reached by the trial court. Id.

B E & K relies upon Ex parte DCH Regional Medical Center, 571 So.2d 1162 (Ala.Civ.App.1990), and argues that the court's judgment sufficiently ascertains the rights of the parties and is, therefore, a final judgment that will support an appeal. In DCH the employee was injured in a fall that occurred during the course of her employment with DCH Regional Medical Center. The employer paid temporary total-disability benefits to the employee for approximately 15 months. Thereafter, the employer ceased paying further benefits and refused to pay certain medical expenses incurred by the employee. The employee sued to recover the discontinued payments. Id.

DCH was tried on the issues of unpaid medical expenses, compensation benefits, the existence and amount of temporary disability, and the extent of permanent disability. The court entered an order entitled "Interlocutory Decree" and found that the employee was temporarily totally disabled and that this disability was continuing. The court ordered the employer to continue making weekly temporary total-disability payments until the employee had reached maximum medical recovery and to pay all reasonably necessary future medical expenses. The order then specifically stated that the court retained jurisdiction of the matter to determine at a later date the issue of permanent loss of earning capacity. Id.

In DCH, the employer sought to vacate the trial court's order by petition for a writ of mandamus, contending that the court's order was inconclusive and, thus, not appealable. In denying the employer's petition, this court stated:

"The trial court's judgment was styled as an `interlocutory decree,' which is by definition not a final judgment. However, it is not the title of an order that makes it final; rather, the test of a judgment's finality is whether it sufficiently ascertains and declares the rights of the parties. McCulloch v. Roberts, 290 Ala. 303, 276 So.2d 425 (1973). A final judgment in a workmen's compensation case must contain statements of fact and conclusions of law. § 25-5-88, Code 1975. We find that the `interlocutory decree' entered by the trial court contains the findings necessary to support an appeal without undue hardship to the employer. Moreover, the fact that the trial court retained jurisdiction over the award of temporary disability does not bar such an appeal. Section 25-5-88, Code 1975, states that after a final judgment has been entered in a workmen's compensation case subsequent proceedings may be held only `for the recovery of moneys thereby determined to be due.' The trial court found that

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