Ex Parte Publix Super Markets, Inc.

• Citation: 963 So.2d 654
• Decision Date: 09 March 2007
• Docket Number: 2060092.
• Parties: Ex parte PUBLIX SUPER MARKETS, INC. (In re Frances Lukich v. Publix Super Markets, Inc.)
• Court: Alabama Court of Civil Appeals

963 So.2d 654

Ex parte PUBLIX SUPER MARKETS, INC. (In re Frances Lukich v. Publix Super Markets, Inc.)

2060092.

Court of Civil Appeals of Alabama.

March 9, 2007.

Kyle L. Kinney, Wendy F. Pope, and John B. Welch of Gaines, Wolter & Kinney, P.C., Birmingham, for petitioner.

Christopher J. Zulanas and Michael J. Douglas of Friedman, Leak, Dazzio, Zulanas & Bowling, P.C., Birmingham, for respondent.

MOORE, Judge.

Publix Super Markets, Inc. ("the employer"), the defendant in a pending action brought by Frances Lukich ("the employee") pursuant to the Alabama Workers' Compensation Act, § 25-5-1 et seq., Ala. Code 1975 ("the Act"), petitions for a writ of mandamus directing the Jefferson Circuit Court to rescind an order compelling the employer to provide the employee with medical treatment. For the reasons stated herein, we grant the petition and issue the writ.

I.

On August 24, 2005, the employee visited the Brookwood Medical Center due to back pain. She told the attending physician, Dr. Leah Daggett, that she had picked up a box of bottled water while at work three and one-half weeks earlier and had noticed pain immediately radiating around her lower rib cage. The pain had persisted and the employee had developed a productive cough. She had been admitted to another hospital where a CT angiogram of her chest reportedly showed scarring of her lungs with no pulmonary embolism. She had also visited a Dr. Morgan on August 22, 2005, and he had ordered a bone scan, which showed an abnormality in the thoracic spine, prompting him to order an MRI scan of her spine. On August 23, 2005, after falling to her knees without any obvious injury, the employee had reported to the Brookwood Medical Center emergency room. Various medications had not affected her severe back pain.

Dr. Daggett examined the employee, finding palpable tenderness over the thoracic spine at the T9-T10 level. The doctor diagnosed thoracic pain with abnormal bone scan, which may represent degenerative joint disease or multilevel compression fractures. The doctor also opined that the employee may have osteoporosis or a pathological process of the spine as well. The doctor admitted the employee to the hospital, prescribed medications for her condition, and ordered an MRI of the thoracic spine.

On August 31, 2005, Specialty Risk Services, LLC ("SRS"), the third-party workers' compensation administrator for the employer, wrote the employee a letter stating, in pertinent part:

"Dear Ms. Lukich:

"I hope this letter finds you doing well. Our office has received notice of . . . your . . . claim. The claim that was submitted by your employer, Publix is under investigation.

"Please give me a call at your earliest convenience.

"Please sign and return the medical authorization that has been mailed to you, please include a list of all medical providers including addresses with whom you have had medical treatment within the past ten years. Once we have this, we will order your medical records & evaluate your claim.

". . . .

"Once a decision is reached on your claim, you will be notified."

On September 1, 2005, Dr. Daggett wrote a letter addressed to "To Whom It May Concern" in which she stated:

"Frances Lukich was admitted to my care on August 24, 2005 with a three and half-week history of severe mid back pain, which she related to picking up a box of bottled water while at work. Upon picking up the water she immediately noticed pain, which was treated by her physician with medication without improvement. After an increase in the severity of her pain she was seen in the Brookwood Medical Center Emergency Room and released with a prescription, which was ineffective in treating her pain. She was then admitted to Brookwood Medical Center."

On February 15, 2006, SRS wrote Lukich another letter in which the claims consultant wrote:

"We have received and reviewed the information regarding the claim that was submitted by your employer, Publix. In addition, we have reviewed the medical records obtained from several medical providers. In reviewing this information, we are not able to confirm that an injury occurred within your employment at Publix nor that your condition is related to your employment. Based on the information available, we are not able to accept this claim as compensable under the Alabama Workers' Compensation [Act]. Therefore, I must respectfully deny this claim."

Apparently unable to resolve the dispute, the employee filed a verified complaint in the Jefferson Circuit Court on April 27, 2006. In that complaint, the employee alleged that in early August 2005, "while working in the line and scope of her employment, [the employee] injured her back while lifting a case of bottled water." The employee further alleged that she had properly notified the employer of the accident and that she had become permanently and totally disabled because of the injuries she had sustained. The employee specifically averred that she had obtained medical treatment, including surgery, and that she continued to require medical treatment because of her injuries. The employee asserted that she had notified SRS "to determine if her injury was covered under worker's compensation" but that SRS had denied her claim on February 15, 2006, despite having Dr. Daggett's report and letter. The employee demanded a judgment against the employer, seeking, among other things, "medical expenses and benefits to which [the employee] is entitled to under the workers' compensation law under the State of Alabama." The employee attached to her complaint the medical records and letters referenced above.

On June 2, 2006, the employer filed an answer to the complaint, denying all its material allegations and demanding strict proof thereof.

On August 16, 2006, the employee filed a "Motion to Compel Medical Treatment." In that motion, the employee basically restated the allegations contained in her complaint and requested that the court enter an order compelling the employer to provide her with medical and surgical treatment pursuant to the Act. The employer filed a response to the motion on August 18, 2006, in which it asserted that the motion should be denied because (1) the parties were in the midst of discovery and, therefore, the issue whether medical benefits were owed was not ripe for hearing and (2) the employee had not offered the court any evidence indicating that she had sustained a covered injury.

The trial court conducted a hearing on the motion to compel medical treatment on August 21, 2006. At that hearing, neither party introduced any evidence or called any witnesses; instead the parties relied on the pleadings submitted to the court and the arguments of counsel. On September 15, 2006, the trial court entered an order granting the motion to compel without further comment. The employer timely filed its petition for a writ of mandamus to this court on October 27, 2006, requesting that this court vacate the order granting the motion to compel.

II.

A writ of mandamus is an extraordinary remedy, and it will be issued only when 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 United Service Stations, Inc., 628 So.2d 501, 503 (Ala. 1993). A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal. Ex parte Drill Parts & Serv. Co., 590 So.2d 252 (Ala.1991)."'"

Ex parte Fort James Operating Co., 905 So.2d 836, 842 (Ala.Civ.App.2004) (quoting Ex parte Wilson, 854 So.2d 1106, 1108-09 (Ala.2002), quoting in turn Ex parte Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala. 1998)).

Section 12-3-10, Ala.Code 1975, vests this court with appellate jurisdiction to issue extraordinary writs in workers' compensation actions. See Ex parte Alabama Power Co., 863 So.2d 1099 (Ala.Civ.App. 2003). The employer has properly invoked that jurisdiction by timely filing its petition for a writ of mandamus within a reasonable time following the entry of the order of which it complains. See Rule 21(a)(3), Ala. R.App. P. (requiring the filing of a petition for the writ of mandamus within a reasonable time and establishing "the time for taking an appeal" as a presumptively reasonable time).

This court has exercised its jurisdiction to issue writs of mandamus in workers' compensation actions mainly in cases in which the trial court has entered an order wholly without statutory authority or in direct contravention of the language of the Act. See, e.g., Ex parte Brookwood Med. Ctr., Inc., 895 So.2d 1000 (Ala.Civ.App.2004). We recognize that an action brought under the workers' compensation laws is purely statutory in nature. Fort James Operating Co. v. Irby, 911 So.2d 727, 734 (Ala.Civ.App.2005) (citing Slagle v. Reynolds Metals Co., 344 So.2d 1216, 1217 (Ala.1977)). The Act is a specific and comprehensive system of law for dealing with workplace injuries and "`creates rights . . . remedies . . . and procedures all [its] own.'" Davis v. Fayette County Comm'n, 831 So.2d 50, 53 (Ala.Civ. App.2002) (quoting Riley v. Perkins, 282 Ala. 629, 632, 213 So.2d 796, 798 (1968)). Generally speaking, therefore, the rights and remedies available to the affected parties must be found within the provisions of the Act. See Hedgemon v. United Parcel Serv., Inc., 832 So.2d 656 (Ala.Civ.App. 2002). Thus, in a workers' compensation action, when a trial court exercises power not explicitly granted by the Act or necessarily implied by its terms, this court will issue a writ of mandamus to correct that error. See Ex parte Brookwood Med. Ctr., Inc., supra; Ex parte Alabama Power Co., supra; Ex parte Wal-Mart Stores, Inc., 794 So.2d 1085 (Ala.2001); and Ex parte Smitherman Bros. Trucking, Inc., 751 So.2d 1232 (Ala.1999).

III.

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