Dillard v. Calvary Assembly of God, 2210341

CourtAlabama Court of Civil Appeals
Writing for the CourtTHOMPSON, PRESIDING JUDGE
PartiesRon Dillard v. Calvary Assembly of God
Docket Number2210341
Decision Date23 September 2022

Ron Dillard
v.

Calvary Assembly of God

No. 2210341

Alabama Court of Civil Appeals

September 23, 2022


Appeal from Morgan Circuit Court (CV-20-900306)

THOMPSON, PRESIDING JUDGE

Ron Dillard appeals the judgment entered by the Morgan Circuit Court ("the trial court") in favor of Calvary Assembly of God ("Calvary"), holding that his workers' compensation action is barred by the two-year

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statute of limitations set forth in § 25-5-80, Ala. Code 1975, of the Alabama Workers' Compensation Act. We affirm.

On September 1, 2020, Dillard filed a complaint in the trial court seeking workers' compensation benefits for a work-related injury that had occurred on September 20, 2017. According to Dillard, he suffered a latent injury to his back. Calvary filed an answer denying that Dillard was entitled to workers' compensation benefits. On June 24, 2021, Calvary filed a motion for a summary judgment, arguing that the evidence did not support a conclusion that Dillard had suffered a latent injury and that, therefore, because Dillard did not file his complaint within two years of his work-related injury, his action seeking workers' compensation benefits was time-barred. On September 10, 2021, Dillard filed a response. The trial court conducted a hearing on September 22, 2021.

The evidence submitted to the trial court indicated that in May 1996 Calvary hired Dillard as a maintenance employee. On September 20, 2017, while moving some of Calvary's tax files, Dillard suffered a work-related injury when the tread on a stair came loose and he fell down at least five stairs. Dillard landed in a seated position, suffered an injury

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to his lower back, and experienced lower back pain. Dillard reported his injury to Calvary's secretary. When the secretary asked him if he wanted to see a doctor, Dillard responded that he would keep working and would decide later if he needed treatment.

On October 10, 2017, Dillard fell down several stairs at his home and on October 13, 2017, he sought treatment at Decatur Morgan Hospital. During that visit, he informed the medical staff that he had been suffering from lower back pain since falling at work on September 20, 2017. X-rays of Dillard's lumbar spine taken at the hospital revealed that Dillard had mild degenerative changes, but no acute changes, in his lower back. He was diagnosed with lower back pain, prescribed medication, and sent home. Dillard did not miss any time from work.

Although Dillard continued to work, he also continued to experience lower back pain, and on November 28, 2017, Dillard decided to seek treatment from Dr. Derrick Cho at Huntsville Hospital Spine and Neurology.[1] Dr. Cho ordered a Magnetic Resonance Imaging ("MRI") scan of Dillard's spine that revealed that Dillard suffered from disk

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protrusions in the lower lumbar levels. On December 14, 2017, Dr. Cho discussed with Dillard the results of the MRI scan and the potential benefits, risks, and outcomes of various treatment options, including surgery that would likely involve a lumbar diskectomy and spinal fusion at the L5-S1 joint. Dillard decided not to have surgery at that time and to try other, less invasive treatments, including manipulations of the spine by a chiropractor. Those less invasive treatments, however, did not provide Dillard with relief from his lower back pain, and on February 27, 2018, after meeting with Dr. Cho to discuss surgery, Dillard decided to proceed with the surgery. Dillard did not miss any time from work while under Dr. Cho's care.

Upon making the decision to undergo surgery, Dillard informed Calvary, and, at Calvary's instruction, Dillard proceeded through the workers' compensation process. On April 3, 2018, Dillard saw Dr. Larry Parker, a physician who Calvary had authorized to treat Dillard. Dr. Parker recommended conservative treatment, ordered physical therapy, and prescribed nonnarcotic pain medication and "LidoPro" patches and gel. Dr. Parker did not assign any work restrictions and indicated that he anticipated a "0% impairment rating, and no long-term sequelae in

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terms of his low back issue." According to evidence presented by Dillard, Dr. Parker led Dillard to believe that his injury was a muscular problem and that surgery was not needed. After Dr. Parker, on June 7, 2018, opined that Dillard's injury was a musculoligamentous complaint, determined that Dillard had reached maximum medical improvement ("MMI"), and assigned Dillard a 0% physical-impairment rating, Dillard exercised his right under § 25-5-77, Ala. Code 1975, to choose a new authorized treating physician from a panel of four doctors provided by Calvary and selected Dr. Blake Boyett. Dillard did not miss any work while under Dr. Parker's care.

On October 17, 2018, Dillard began treatment for his lower back pain with Dr. Boyett, who recommended epidural steroid injections. On November 1, 2018, Dillard received an epidural steroid injection at the L5-S1 joint. On November 15, 2018, Dr. Boyett noted that Dillard's pain had returned to baseline and that Dillard had reached MMI. Dr. Boyett instructed Dillard to follow up as needed.

On July 2, 2019, Dillard returned to Dr. Boyett complaining of lower back pain and Dr. Boyett ordered another epidural steroid injection. On July 16, 2019, Dillard received the injection and by August

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20, 2019, his pain had returned to baseline according to Dr. Boyett. On December 17, 2019, Dillard received a lumbar-facet injection, and on January 2, 2020, Dr. Boyett concluded that Dillard was at "non-surgical MMI." Dillard's medical records reflect that Dr. Boyett would recommend surgery if Dillard's pain returned.

On February 14, 2020, Dr. Boyett noted in one of Dillard's medical records that, because Dillard had continued to complain of lower back pain, he had ordered an MRI scan of Dillard's spine and that, after having evaluated the MRI scan, he had recommended spinal-fusion surgery to Dillard. Dr. Boyett's notes indicate that he believed that Dillard's pain originated from the 2017 work-related injury. On March 2, 2020, Dillard underwent surgery that included a L5-S1 transfemoral lumbar interbody fusion, a nerve-root decompression, and a bilateral L5-S1 posterolateral fusion. Calvary's workers' compensation insurance carrier paid for the surgery.

Dillard had continued to work while under Dr. Boyett's care until he had the March 2, 2020, surgery. However, during his rehabilitation from the surgery, Dillard was unable to work. The evidence indicates that, while Dillard was recovering from the March 2, 2020, surgery,

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Calvary did not pay Dillard any temporary-total-disability benefits. Dillard returned to work in May 2020.

On August 18, 2020, because Dillard continued to experience lower back pain, Dr. Boyett ordered a left-side sacroiliac-joint injection. On August 25, 2020, Dillard saw Dr. Boyett, who, in a record of that visit, noted that Dillard had received some pain relief from the injection and ordered an additional sacroiliac-joint injection for Dillard's continued lower back pain. Because the injections failed to provide Dillard with any long-term relief from the lower back pain, Dillard underwent a second spinal-fusion surgery on February 10, 2021. During the rehabilitation period from that second surgery, Dillard was unable to work, and Calvary did not pay Dillard any temporary-total-disability benefits. Dillard returned to work after he was released by his doctor.

The evidence Dillard presented to the trial court indicates that he has limited ability to lift, to bend, to sit, and to tie his shoes. Dillard stated that he had continued to work from when he suffered his September 2017 work-related injury until the recovery period after his March 2, 2020, surgery. He stated that, because he had been able to continue to work, he had not realized that he had a compensable injury

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and a viable claim for workers' compensation benefits until undergoing his March 2, 2020, surgery. The evidence indicated that Dillard had two surgeries after, which he received no temporary-total-disability benefits, and that he never requested any.

On November 10, 2021, the trial court entered a summary judgment in favor of Calvary, holding that Dillard's action was barred by the two-year limitations period. On November 19, 2021, Dillard filed a postjudgment motion. On December 21, 2021, the trial court entered an order denying Dillard's postjudgment motion. On January 22, 2022, Dillard filed his notice of appeal.

"This court's review of legal issues in a workers' compensation case is without a presumption of correctness. See § 25-5-81(e)(1), Ala. Code 1975, and Flesher v. Saginaw Div., Gen. Motors Corp., 689 So.2d 113 (Ala. Civ. App. 1996). In Bailey v. R.E. Garrison Trucking Co., 834 So.2d 122, 123 (Ala. Civ. App. 2002), this court reviewed a summary judgment in a workers' compensation case and stated our standard of review as follows:

"'A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing "that there is no genuine issue as to any material fact and that [he] is entitled to a judgment as a matter of law." Rule 56(c)(3), Ala. R. Civ. P. The court must view the
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evidence in a light most favorable to the nonmoving party and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.
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