Cvs Corp., Inc. v. Smith, 2060514.

Citation981 So.2d 1128
Decision Date21 September 2007
Docket Number2060514.
PartiesCVS CORPORATION, INC. v. Frances SMITH.
CourtAlabama 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.

THOMPSON, Presiding Judge.

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."

After conducting an ore tenus hearing on Smith's workers' compensation claim, the trial court, on June 15, 2005, entered an order finding Smith to be permanently and totally disabled; however, that order did not determine the amount of benefits to which Smith was entitled. CVS appealed. During the pendency of that appeal, this court reinvested the trial court with jurisdiction to enter a final judgment on Smith's workers' compensation claim. The trial court entered an order in which it purported to certify the June 15, 2005, order as final pursuant to Rule 54(b), Ala. R. Civ. P. This court later dismissed CVS's appeal after determining that the June 15, 2005, order failed to

"`"`sufficiently[] ascertain and declare[] the rights of the parties'" so as to constitute a final judgment that would support an appeal. [International Paper Co. v. Dempsey,] 844 So.2d [1236,] 1237 [(Ala.Civ.App.2002)] (quoting Ex parte DCH Reg'l Med. Ctr., 571 So.2d 1162, 1164 (Ala.Civ.App.1990)).' Sign Plex v. Tholl, 863 So.2d [1113, 1116 (Ala. Civ.App.2003)]."

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:

"TRIAL STIPULATIONS OF THE PARTIES

"1. Plaintiff Frances Smith and Defendant CVS Corporation are the proper parties to this action.

"....

"3. While acting within the line and scope of her duties as an employee of the Defendant, CVS Corporation on or about November 7, 2001, [Smith] suffered an accident when a box of totes fell on her. However, the parties cannot agree as to whether or not this accident caused any permanent injury.

"....

"5. [Smith] reached MMI on August 29, 2002.

"....

"18. The only issues in this case to be tried are whether or not there is a compensable injury, the extent of disability therefrom, if any, and the amount of accrued and future indemnity for disability benefits due [Smith] under the Workers' Compensation Act, if any.

"FINDINGS OF FACT BY THE COURT

"....

"After her November 7, 2001, on-the-job injury, Ms. Smith saw workers' compensation-authorized treating physicians Dr. Lauren Savage, Dr. Gaylon Rodgers, Dr. Gordon Kirschberg, Dr. Daniel Doleys, Dr. Lisa Columbia and Physical Therapist Starr Kellogg for treatment. She also saw other non-authorized doctors. The Court has reviewed the depositions and deposition exhibits of Dr. Kirschberg and Dr. Doleys. She had an Independent Medical Evaluation by Dr. Keith Langford. The Court has reviewed Dr. Langford's deposition and the exhibits thereto.

"Dr. Gordon Kirschberg, a neurologist, said on his physical examination of [Smith] on her first visit to him on June 28, 2002, he found:

"`this large indentation just below—or back and below the left hip joint which did not look like muscle atrophy. It looked more like subcutaneous lipoatrophy or fat necrosis.'

"and Dr. Kirschberg came to the conclusion:

"`That she had some trauma to the left upper thigh to cause this fat necrosis and I thought it was the trauma, and not the necrosis that was causing the pain.'

"Dr. Kirschberg, in his August 29, 2002, medical record placed Ms. Smith at MMI and gave her a...

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