Dodson v. Johns & Kirksey, Inc. (Ex parte Johns & Kirksey, Inc.)
| Decision Date | 08 February 2013 |
| Docket Number | 2111228. |
| Citation | 121 So.3d 1005 |
| Court | Alabama Court of Civil Appeals |
| Parties | Ex parte JOHNS & KIRKSEY, INC. (In re Thomas C. Dodson III v. Johns & Kirksey, Inc.). |
OPINION TEXT STARTS HERE
Jonathan L. Berryhill and Robert A. Feeley of Wilson & Berryhill P.C., Birmingham, for petitioner.
Steven W. Ford and Burke M. Spree of Lewis, Smyth, Winter & Ford, LLC, Tuscaloosa, for respondent.
Johns & Kirksey, Inc. (“the employer”), a metal-roofing and general contractor, petitions for a writ of mandamus directing the Tuscaloosa Circuit Court (“the trial court”) to set aside an interlocutory order it entered on August 9, 2012, in an action brought by Thomas C. Dodson III (“the employee”), pursuant to the Alabama Workers' Compensation Act, § 25–5–1 et seq., Ala.Code 1975 (“the Act”).1 We deny the petition.
On July 2, 2010, the employee sued the employer, alleging that he had sustained a cumulative-trauma injury arising out of and in the course of his employment with the employer and seeking both medical benefits under § 25–5–77, Ala.Code 1975, and permanent-disability benefits under § 25–5–57, Ala.Code 1975.2 Specifically, the employee's complaint, as amended, alleged that, on November 4, 1996, he had sustained an injury to his lower back while lifting a piece of structural steel in the course of his employment with the employer; that the injury he had sustained on November 4, 1996, had been surgically repaired by Rick McKenzie, M.D. (“Dr. McKenzie”), on November 7, 1996; that the employee and the employer had reached a settlement regarding the amount of the compensation and vocational benefits the employee was due as a result of the November 4, 1996, injury and had left open the amount of the medical benefits the employee was due; that, after recuperating from the November 7, 1996, surgery, the employee had returned to work for the employer and had performed his full duties, which had included performing manual labor; and that the employee thereafter had sustained cumulative-trauma injuries to his back and right leg as a result of performing manual labor in the course of his employment with the employer. Answering, the employer denied that the employee had sustained cumulative-trauma injuries, denied that the employee was entitled to benefits under the Act, and asserted various affirmative defenses.
The trial court set the case for a bench trial on February 29, 2010, that was limited to the issue whether the employee had sustained a compensable injury. On February 28, 2010, the employer moved to strike a portion of the deposition testimony of Dr. McKenzie, which the employee had indicated that he intended to introduce at the February 29, 2010, trial. The trial court tried the issue whether the employee had sustained a compensable cumulative-trauma injury on February 29 and April 17, 2012. During the trial, the trial court heard the live testimony of witnesses and admitted into evidence the deposition testimony of witnesses, written documents, and photographs. The deposition testimony admitted by the trial court included the portion of Dr. McKenzie's deposition testimony that was the subject of the employer's motion to strike.
On August 9, 2012, the trial court entered an order (1) determining that the employee had sustained a cumulative-trauma injury that was compensable under the Act, (2) awarding the employee medical benefits under § 25–5–77, (3) deferring the adjudication of the issue whether the employee was entitled to permanent-disability benefits under § 25–5–57 until the employee had reached maximum medical improvement, (4) denying the employer's motion to strike a portion of Dr. McKenzie's deposition testimony, and (5) awarding the employee costs in the amount of $1,811. The employer then filed its mandamus petition on September 20, 2012.
Initially, the employer argues that its mandamus petition should be treated as an appeal because, the employer says, the trial court's August 9, 2012, order constituted a final judgment. “ ‘An appeal ordinarily lies only from a final judgment.’ ” Alvira v. Campbell, 909 So.2d 847, 849 (Ala.Civ.App.2005) (quoting Tomlinson v. Tomlinson, 816 So.2d 57, 58 (Ala.Civ.App.2001)). “A final judgment completely adjudicates all matters in controversy between the parties.” Stanford v. Feige, 816 So.2d 501, 502 (Ala.Civ.App.2001). This court has held that an order determining that an injury is compensable under the Act and awarding medical benefits only, without adjudicating the issue whether the worker is entitled to disability benefits, does not constitute a final judgment because such an order does not completely adjudicate the worker's claim under the Act. See Ex parte Cowabunga, Inc., 67 So.3d 136, 138 (Ala.Civ.App.2011); SouthernCare, Inc. v. Cowart, 48 So.3d 632 (Ala.Civ.App.2009), writ quashed, Ex parte SouthernCare, Inc., 48 So.3d 635 (Ala.2010); Homes of Legend, Inc. v. O'Neal, 855 So.2d 536 (Ala.Civ.App.2003); and USA Motor Express, Inc. v. Renner, 853 So.2d 1019 (Ala.Civ.App.2003). In the present case, although the August 9, 2012, order determined that the employee had sustained a compensable injury and awarded him medical benefits under § 25–5–77, it did not adjudicate the employee's claim insofar as it sought permanent-disability benefits under § 25–5–57; indeed, the August 9, 2012, order expressly deferred the adjudication of the issue whether the employee was entitled to permanent-disability benefits under § 25–5–57 until the employee had reached maximum medical improvement. Accordingly, the August 9, 2012, order is not a final judgment that will support an appeal. Id.
In Cowabunga, Cowabunga, Inc., doing business as Domino's Pizza (“Cowabunga”), sought appellate review of an interlocutory order determining that Thomas W. Short had sustained a compensable injury and awarding Short medical benefits. Although we ruled that an appeal would not lie from that interlocutory order, Cowabunga, 67 So.3d at 138, we determined that Cowabunga was entitled to appellate review of that interlocutory order by a petition for a writ of mandamus because
“[a]waiting review of the order by appeal [after a final judgment had been entered] would only force [Cowabunga] to incur further expenses that it may not owe and that it may never recover from [Short] who, as evidenced by the fact that [Cowabunga] is now voluntarily paying temporary-total-disability benefits, is currently unable to earn wages.”
Cowabunga, 67 So.3d at 139. Although the employer in the present case is not paying the employee temporary-total-disability benefits, delaying review of the trial court's August 9, 2012, order awarding medical benefits would potentially force the employer to incur medical expenses it may not owe and may not be able to recover from the employee. Accordingly, we conclude that an appeal would not afford the employer an adequate remedy in this case, and, therefore, we will review the trial court's August 9, 2012, order pursuant to the employer's mandamus petition. See Cowabunga.
“Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.”
Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995).
The employer argues that the trial court erred in determining that the employee had proved by clear and convincing evidence that he had sustained a compensable cumulative-trauma injury.
“In order to prove that an injury arose from work-related cumulative trauma, an employee must present clear and convincing evidence of legal and medical causation. Valtex, Inc. v. Brown, 897 So.2d 332, 334 (Ala.Civ.App.2004); Safeco Ins. Co. v. Blackmon, 851 So.2d 532, 537 (Ala.Civ.App.2002); and § 25–5–81(c), Ala.Code 1975. ‘Clear and convincing’ evidence is
“
“§ 25–5–81(c), Ala.Code 1975.
“
City of Gadsden v. Scott, 61 So.3d 296, 301–02 (Ala.Civ.App.2010).
“In deciding whether it was reasonable for a trial court to have concluded that a fact was proven by clear and convincing evidence, i.e., whether it was reasonable for the fact-finder to reach a firm conviction as to each essential element of the claim and infer a high probability as to the correctness of the conclusion, the appellate court must limit its determination to ‘whether there was substantial evidence before the trial court...
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