Ex parte Fort James Operating Co.

• Decision Date: 22 October 2004
• Citation: 905 So.2d 836
• Parties: Ex parte FORT JAMES OPERATING COMPANY. (In re Jimmy Roberts v. Fort James Operating Company).
• Court: Alabama Court of Civil Appeals

905 So.2d 836

Ex parte FORT JAMES OPERATING COMPANY.

(In re Jimmy Roberts v. Fort James Operating Company).

2020435.

Court of Civil Appeals of Alabama.

October 22, 2004.

Certiorari Denied January 7, 2005.

Terry A. Moore of Vickers, Riis, Murray & Curran, L.L.C., Mobile, for petitioner.

William L. Utsey, Tara B. Armistead, and J. Perry Newton of Utsey & Utsey, Butler, for respondent.

Alabama Supreme Court 1040220.

On Application for Rehearing

MURDOCK, Judge.

This court's opinion of January 16, 2004, is withdrawn, and the following is substituted therefor.

Fort James Operating Company ("Fort James") petitions this court for a writ of mandamus in this workers' compensation case. The plaintiff in this case, Jimmy Roberts, has alleged injuries to both his right and left knees as a result of various accidents occurring during 1997 in the course of his employment with Fort James, as well as "cumulative trauma" to both knees.

On August 5, 1999, Roberts filed a verified and notarized complaint alleging that he had injured his right knee in January 1997, when he slipped on a patch of ice and fell. He also alleged that on some unspecified date he had injured his left knee when he "had to make a three-foot step down." The complaint further alleged that both knees were injured as the result of cumulative on-the-job trauma caused by climbing, kneeling, squatting, twisting, and falling. Finally, the complaint included an allegation that Roberts had again injured his left knee in October 1997 when he "slipped off of a piece of pipe."

The materials submitted by the parties to this court tend to indicate the following: In June 1997, Roberts underwent an operation on his right knee; Roberts testified in his deposition that the operation did not improve the condition of that knee. Roberts's physician, Dr. Gus A. Rush III, subsequently assigned an 8% permanent-impairment rating to Roberts's right leg as a result of his injuries.

In December 1997, a second physician, Dr. William Standeffer, performed an operation on Roberts's left knee. Thereafter, Standeffer assigned a 10% permanent-impairment rating to Roberts's left leg. Because of continued pain in Roberts's right knee, Dr. Standeffer performed another operation on the right knee in August 1998. According to Roberts's deposition testimony, this second operation "fixed" his right knee. Nonetheless, Dr. Standeffer subsequently assigned a 17% permanent-impairment rating to Roberts's right leg.

Roberts returned to full-duty work at Fort James with no work restrictions in October 1998, but he continued to complain of knee pain. Dr. Standeffer subsequently diagnosed Roberts with arthritis in his knees, limited Roberts to 40 hours of work per week, and eventually concluded that Roberts could not continue to work as a pipe fitter or heavy laborer. Roberts quit work in May 1999.

Fort James treated Roberts's injuries as scheduled injuries under § 25-5-57(a), Ala. Code 1975. Section 25-5-57(a)(3)a., Ala. Code 1975, provides for 200 weeks of benefits for the loss of a leg. Section 25-5-57(a)(3)d., Ala.Code 1975, provides:

"Loss of Use of Member. The permanent and total loss of the use of a member shall be considered as equivalent to the loss of that member, but in such cases the compensation specified in the schedule for such injury shall be in lieu of all other compensation, except as otherwise provided herein. For permanent disability due to injury to a member resulting in less than total loss of use of the member not otherwise compensated in this schedule, compensation shall be paid at the prescribed rate during that part of the time specified in the schedule for the total loss or total loss of use of the respective member which the extent of the injury to the member bears to its total loss."

Fort James reasoned that the 10% permanent-impairment rating that Dr. Standeffer assigned to Roberts's left leg entitled Roberts to 20 weeks of benefits, and that the 17% permanent-impairment rating that Dr. Standeffer assigned to Roberts's right leg entitled Roberts to 34 weeks of benefits. Accordingly, Fort James paid Roberts 56 weeks of permanent partial disability benefits: 20 weeks for the partial loss of use of the left leg and 36 weeks (rather than the 34 weeks calculated) for the partial loss of use of the right leg.

In July 1999, Roberts filed a claim for disability benefits under his pension plan, which is wholly funded by Fort James. Since November 1, 1999, the Fort James pension plan has paid Roberts $1,363 per month in disability-retirement benefits; those payments will continue for the remainder of his life.

As noted above, Roberts filed his complaint on August 5, 1999. Over the course of the next 18 months after the complaint was filed, the parties conducted discovery as to the injuries alleged in that complaint, namely, the alleged injuries to Roberts's knees. Among other things, Fort James propounded a "first set of interrogatories"; in answers to those interrogatories dated May 19, 2000, Roberts stated that he had suffered knee injuries before the injuries for which he made claims in this case but that he had no other permanent mental or physical conditions that affected his ability to function.

In a deposition taken on March 26, 2001, Roberts testified that he had some muscle pain in his back and that in December 2000 he had fallen and injured his shoulder while walking in the woods:

"Q: Besides the injuries to your knees, do you have any — you were telling me a minute ago about some kidney stones that you had. Do you have any other problems, physical problems?

"A: The only thing I have is my back muscles. I take muscle relaxers for that. I assume, it's caused by, you know, the way I walk or move around. I have trouble with my back every once in a while.

"Q: I saw recently your attorney sent me a record indicating that you had some problem with your shoulder.

"A: Yes.

"Q: Tell me about that.

"A: I slipped and fell. I don't know what to blame it on, but I slipped. My knees are not as good as they used to be, and I slipped and I fell. And I caught on this arm and tore up my shoulder.

"Q: Has that problem been fixed?

"A: It's been operated on.

"Q: That was also by Dr. Standeffer; is that right?

"A: That's true.

"Q: Did workers' comp pay for that?

"A: No.

"Q: Your own health insurance?

"A: Yes.

"Q: You still have health insurance?

"A: True.

"Q: Okay. You're not claiming that your back or your shoulder are a part of this lawsuit, are you?

"A: My back has hurt me worse since my knees have been — of course, and it's like he said, it's all tied together.

"Q: Who said that?

"A: Dr. Standeffer.

"Q: I'm just asking —

"A: I don't know.

"Q: You don't have in your complaint any mention about your back or your shoulder. You're not claiming that, are you?

"A: No.

"Q: It's your knees that are really keeping you from working?

"A: My knees are keeping me from working.

"Q: Okay.

"A: But now my back does give me problems.

"Q: Are you still seeing anybody for that?

"A: I hadn't seen anybody lately, but Dr. Standeffer is the only one.

"Q: Is he giving you medicine for it?

"A: Yes. I have muscle relaxers I take.

"Q: And when did he fix your shoulder?

"A: In December, middle of December [2000].

"Q: And is it better now?

"A: It's better."

On March 26, 2001, several hours after the conclusion of the deposition, Roberts filed an "Amendment to Complaint," which was also verified by Roberts and notarized. In this amendment, Roberts alleged: "Further, as a result of the injuries to his knees, the Plaintiff has sustained an injury to his back and limitations therefrom." There was no mention in the amendment of any claim for a shoulder injury.

On April 21, 2001, Fort James filed a motion to strike Roberts's amendment to his complaint, asserting that Roberts had unduly delayed in notifying Fort James of a claim for compensation due to a back injury. Fort James contended that it would be prejudiced by the amendment because it had already conducted its discovery in the case and had prepared its defense based on Roberts's allegation that his injuries were limited to his knee injuries. In the alternative, if the amendment were allowed, Fort James requested that Roberts be required to respond again to all previous written discovery and that Roberts be required to pay the additional costs incurred in obtaining the additional discovery, including the cost of a second deposition.

Roberts responded to the motion to strike by citing Rule 15(a), Ala. R. Civ. P., which states, in pertinent part, that "a party may amend a pleading without leave of court, but subject to disallowance on the court's own motion or a motion to strike of an adverse party, at any time more than forty-two (42) days before the first setting of the case for trial, and such amendment shall be freely allowed when justice so requires." Roberts filed an affidavit from his counsel stating that the filing of the amendment on the very day of the deposition was a coincidence and that it was the result of confusion between two different attorneys who were working on Roberts's case. In support of his response to the motion to strike, Roberts submitted medical records dated February 21, 2000, and August 1, 2000, which mentioned his complaint of back tenderness. The February 2000 records indicate that Roberts related his back tenderness to a fall that had occurred when his knee gave way.

On July 12, 2001, the trial court denied Fort James's motion to strike Roberts's amendment to his complaint. The court made no ruling on Fort James's request for alternative relief with respect to the expense of additional discovery. Fort James nonetheless proceeded to propound a second set of interrogatories to Roberts. After receiving Roberts's responses to those interrogatories, Fort James noticed a second deposition of Roberts in order to question him regarding his claims for compensation for a back injury. The parties set the deposition to be...