Cvs Corp., Inc. v. Smith, 2060514.
Citation | 981 So.2d 1128 |
Decision Date | 21 September 2007 |
Docket Number | 2060514. |
Parties | CVS CORPORATION, INC. v. Frances SMITH. |
Court | Alabama Court of Civil Appeals |
Horace V. O'Neal, Jr., of Leo & O'Neal, Birmingham, for appellant.
James E. Mitchell, Jr., Birmingham; and Frank H. Tomlinson, Birmingham, for appellee.
Frances Smith sued her former employer, CVS Corporation, Inc. ("CVS"),1 seeking to recover workers' compensation benefits for injuries she allegedly suffered as a result of an on-the-job injury. Smith later amended her complaint to allege tort claims against GAB Robins North America ("GAB") and Barbara Prince. The record indicates that GAB is the workers' compensation insurer for CVS and that Prince is an employee of GAB. The trial court severed the tort claims from the workers' compensation claims "for the purpose of separate trials in this action."
CVS Pharmacy, Inc. v. Smith, 944 So.2d 957, 959 (Ala.Civ.App.2006).
On remand, the trial court entered and, based on postjudgment motions of the parties, set aside two different orders (each of which had been certified as final pursuant to Rule 54(b)) on Smith's workers' compensation claim.2 Ultimately, on November 29, 2006, the trial court entered an order in which it determined Smith to be permanently and totally disabled and awarded workers' compensation benefits based on that determination. The trial court certified its November 29, 2006, order as final pursuant to Rule 54(b). CVS filed a postjudgment motion, and the trial court denied that motion. CVS timely appealed.3
The relevant facts are as follows. Smith worked full-time4 for CVS from 1988 until November 2001 as an order picker. Her job required her to fill "totes," or bins, with merchandise and to place the totes on a conveyor belt; the totes sometimes weighed as much as 35-40 pounds each.
On November 7, 2001, Smith was injured when several totes fell off a conveyor belt and struck her on the back, neck, and side. Immediately following her on-the-job injury, Smith was treated at the emergency room at Brookwood Hospital and released the same day. It appears that Smith suffered bruising as a result of the on-the-job accident and that she initially complained of lower-back pain. Smith returned to work on light-duty restrictions in December 2001.
Smith was initially treated for her injuries by Dr. P. Lauren Savage. After a few months, Smith became dissatisfied with Dr. Savage's treatment, and, after requesting a panel of four physicians pursuant to § 25-5-77(a), Ala.Code 1975, she began receiving treatment from Dr. Gaylon Rodgers. Dr. Rodgers treated Smith for her complaints of back, leg, and hip pain. Dr. Rodgers also noted the presence of an indentation on Smith's left hip or thigh that he believed was "either fatty necrosis or muscle atrophy." The treatment Smith received for her injuries from Dr. Savage and Dr. Rodgers included medication and epidural and facet blocks; those doctors also referred Smith to physical therapy. Dr. Rodgers assigned Smith certain restrictions regarding her return to work, and he later referred her to Dr. Gordon Kirschberg, a neurologist, for further treatment.
Dr. Kirschberg treated Smith with medication, and he prescribed physical therapy. It was Dr. Kirschberg's impression that the indentation on Smith's left hip or thigh was caused by trauma resulting from the November 7, 2001, on-the-job accident. Dr. Kirschberg testified that when he last treated Smith in April 2003, he diagnosed her as having chronic back, left-leg, and left-hip pain and that, due to the history he received from Smith, he thought the pain was related to her on-the-job accident. Dr. Kirschberg assigned Smith a disability rating of 7% to the body as a whole.
Dr. Kirschberg testified, however, that Smith had not informed him that she had previously suffered from fibromyalgia; Smith disputed that testimony, indicating instead that she had informed Dr. Kirschberg of that condition. Dr. Kirschberg testified that pain attributable to fibromyalgia was generally diffuse and that Smith's reports to him were of pain in a specific area. Dr. Kirschberg stated that if Smith had been treated before November 2001 for the same pain of which she now complains, that information would be "important," apparently for diagnosis or determining the cause of the pain.
In August 2002, both because of his own observations of Smith and because of notations from the physical therapist's notes, Dr. Kirschberg became convinced that Smith should submit to a psychological evaluation and psychological or psychiatric treatment. Dr. Kirschberg explained that Smith appeared to be depressed. However, it appears that, at that time, CVS referred Smith to a neuropsychologist for an independent medical evaluation and that that doctor did not refer Smith for counseling.5 Smith was eventually seen by Dr. Daniel M. Doleys, a psychologist who specializes in pain management.
Dr. Doleys testified that he treated Smith for psychological issues related to her chronic pain. Dr. Doleys stated that his testing of Smith indicated that she suffered from moderate depression, and he opined that Smith's psychological profile was consistent with the profiles of about half of all chronic-pain sufferers. Dr. Doleys believed that it was "[c]lear that [Smith] had had issues of pain and difficulties before the [November 7, 2001,] injury." Dr. Doleys testified that Smith's pain experience or her pain perception after her on-the-job accident was likely to be "significantly enhanced" because of her preexisting conditions, such as fibromyalgia. Dr. Doleys explained that "for individuals who have histories of difficulties even though they've been coping; when there is an injury, then the effect of that injury can be more profound in terms of their experience of pain."
Dr. Doleys stated that Smith's psychological condition in itself was not disabling. According to Dr. Doleys, however, Smith's psychological condition together with her physical condition meant it was not likely that she would either improve or be capable of returning to work. Dr. Doleys opined that "[t]he probability is very, very small" that Smith would be able to return to work. Dr. Doleys concluded that Smith had reached maximum medical improvement ("MMI") with regard to her psychological condition on October 24, 2003.
Shortly after her accident, Smith returned to work at CVS in a light-duty capacity. However, in May or early June 2002, CVS informed Smith that it no longer had light-duty work available. Smith has not worked since June 2002. CVS's vocational expert opined that Smith had a vocational-disability rating of 50% to 55%. Smith's vocational expert concluded that Smith was 100% vocationally disabled.
In addition to the facts as set forth above, the trial court, in its November 29, 2006, judgment, made a number of findings regarding the facts of this case. Those findings are set forth as follows, in pertinent part:
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Table of cases
...Co. , 352, Mass. 458, 464 (1967), §9:05 Curd v. Mosaic Fertilizer, LLC , 39 So.3d 1216 (Fla. 2010), §22:20 CVS Corp., Inc. v. Smith , 981 So.2d 1128 (Ala.Civ.App. 2007), §8:24 D D.C. Hudson v. Lazarus, 95 U.S. App. D.C. 16, 217 F.2d 344 (1954), §23:31 Datskow v. Teledyne Continental Motors ......
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Table of Cases
...Co. , 352, Mass. 458, 464 (1967), §9:05 Curd v. Mosaic Fertilizer, LLC , 39 So.3d 1216 (Fla. 2010), §22:20 CVS Corp., Inc. v. Smith , 981 So.2d 1128 (Ala.Civ.App. 2007), §8:24 D D.C. Hudson v. Lazarus, 95 U.S. App. D.C. 16, 217 F.2d 344 (1954), §23:31 Datskow v. Teledyne Continental Motors ......
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Table of cases
...Co. , 352, Mass. 458, 464 (1967), §9:05 Curd v. Mosaic Fertilizer, LLC , 39 So.3d 1216 (Fla. 2010), §22:20 CVS Corp., Inc. v. Smith , 981 So.2d 1128 (Ala.Civ.App. 2007), §8:24 D Datskow v. Teledyne Continental Motors Aircraft Products, 826 F.Supp. 677 (W.D.N.Y. 1993), §11:90 Daubert v. Merr......
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Table of cases
...Co. , 352, Mass. 458, 464 (1967), §9:05 Curd v. Mosaic Fertilizer, LLC , 39 So.3d 1216 (Fla. 2010), §22:20 CVS Corp., Inc. v. Smith , 981 So.2d 1128 (Ala.Civ.App. 2007), §8:24 D D.C. Hudson v. Lazarus, 95 U.S. App. D.C. 16, 217 F.2d 344 (1954), §23:31 Datskow v. Teledyne Continental Motors ......