Masterbrand Cabinets, Inc. v. Gilmore
| Decision Date | 12 October 2012 |
| Docket Number | 2100937. |
| Citation | 107 So.3d 1104 |
| Parties | MASTERBRAND CABINETS, INC. v. Meleya GILMORE. |
| Court | Alabama Court of Civil Appeals |
OPINION TEXT STARTS HERE
Alabama Supreme Court 1111537.
Mark J. Romaniuk of Baker & Daniels, LLP, Indianapolis, Indiana; and John C. DeShazo of Laney & Foster, P.C., Birmingham, for appellant.
Donald W. Lang, Sylacauga, for appellee.
On Application for Rehearing
The opinion of June 8, 2012, is withdrawn, and the following is substituted therefor.
Masterbrand Cabinets, Inc. (“Masterbrand”), appeals from a judgment awarding workers' compensation benefits to Meleya Gilmore. The Talladega Circuit Court found that Gilmore was permanently and totally disabled as a result of an injury she suffered in a work-related accident, and it awarded benefits accordingly. We affirm.
On October 12, 2007, Gilmore filed a complaint seeking workers' compensation benefits, alleging that she had been injured in a January 29, 2003, work-related accident that had rendered her permanently and totally disabled; Masterbrand answered the complaint, denying the material allegations. On October 30, 2007, the trial court entered a pretrial scheduling order (“the scheduling order”), which, among other things, provided discovery deadlines. The parties conducted discovery.
On November 22, 2010, Masterbrand filed a notice to take the deposition of Don Hoffman; on November 24, 2010, Masterbrand filed a notice to take the deposition of Dean Wennerberg. On November 23, 2010, Gilmore filed a motion to quash Masterbrand's notice of deposition of Hoffman. She later filed a motion requesting that her motion to quash the deposition of Hoffman also apply to the notice of deposition of Wennerberg. In her motions to quash, she argued that the scheduling order prohibited Masterbrand from taking Hoffman's and Wennerberg's depositions (“the Empi depositions”) because, she contended, no further discovery was to be conducted by the parties because the discovery-cutoff date had passed. Additionally,she argued that the deponents were not listed on Masterbrand's September 23, 2010, witness list (“the original witness list”), that she was unaware of the proposed deponents' occupations or their involvement in the action, and that her counsel was unable to attend the depositions in person or telephonically on the date noticed in the notices of depositions filed with the trial court. In response to the motions to quash the Empi depositions, Masterbrand argued that the scheduling order was inapplicable because the Empi depositions were to be used at trial as testimony and not for discovery purposes and, alternatively, that the discovery-cutoff date had not been triggered because, it said, Gilmore had failed to provide it with written notice of maximum medical improvement (“MMI”) as required in the scheduling order. Additionally, Masterbrand stated that Gilmore's counsel's unavailability on the scheduled date did not constitute a ground to quash the notices of depositions, and it stated that it would reschedule the depositions at a date and time convenient for Gilmore's counsel to attend either in person or telephonically. On November 30, 2010, the trial court granted Gilmore's motions to quash the Empi depositions.
On December 1, 2010, Masterbrand filed a motion to reconsider the trial court's decision to grant Gilmore's motions to quash the Empi depositions. 1 On December 1, 2010, Masterbrand filed a “notice of trial deposition of Don Hoffman” and a “notice of trial deposition of Dean Wennerberg.” On December 6, 2010, Masterbrand filed an amended witness list specifically listing both Hoffman and Wennerberg; the December 6, 2010, witness list noted that Hoffman and Wennerberg would be testifying by deposition. Masterbrand proceeded to take Hoffman's and Wennerberg's depositions on December 7, 2010. Although Masterbrand rescheduled the depositions, notified Gilmore's counsel of the new date, and provided Gilmore's counsel telephonic access to participate in the depositions, Gilmore's counsel did not attend or telephonically participate in the depositions based on the facts that the trial court had granted the motions to quash and that the Empi depositions were taken a mere nine days before trial; thus, Gilmore's counsel did not cross-examine either Hoffman or Wennerberg.
On December 16, 2010, the trial court conducted a trial at which it heard ore tenus testimony. At the start of the trial, Masterbrand attempted to enter the Empi depositions into evidence and the trial court denied that request. After hearing the testimony at trial and considering the evidentiary submissions of the parties, including medical records and the deposition testimony of Dr. Michelle Turnley, Gilmore's treating physician, the trial court entered a detailed judgment finding that Gilmore was permanently and totally disabled. On May 12, 2011, Masterbrand filed a motion to alter, amend, or vacate the judgment or, in the alternative, for a new trial. In its postjudgment motion, Masterbrand asserted that the trial court had erred in excluding the Empi depositions from evidence at trial and that the trial court's judgment was unsupported by the evidence. On May 27, 2011, the trial court denied Masterbrand's postjudgment motion. Masterbrand filed a timely notice of appeal to this court.
At the time of trial, Gilmore was a 46–year–old high-school graduate who had worked as a cashier, as a manager of a feed store, and as an assembly-line worker at Masterbrand. It was undisputed that she suffered a work-related injury while working for Masterbrand on January 29, 2003. Gilmore began experiencing pain in the left side of her body after having worked on the assembly line lifting cabinet doors. She notified Masterbrand of the injury and immediately sought medical treatment. She testified that after the injury the left side of her body around her neck and her left arm hurt and that her supervisor sent her to Masterbrand's nurse, who, in turn, sent her to the hospital for medical treatment. The initial treating physicians diagnosed a cervical strain and recommended physical therapy. Gilmore returned to work, with some restrictions, on February 3, 2003, and, after completing further physical therapy, she returned to work, without any limitations, on March 17, 2003. Gilmore testified that she was still suffering from pain during this period and was experiencing some numbness in her arm.
Based on Gilmore's continued complaints of pain, her initial treating physician ordered an MRI. The MRI indicated disk bulges at the C4–C5 and C5–C6 levels as well as a disk herniation at the C6–C7 level. The initial treating physician again placed Gilmore on several work restrictions and referred her to Dr. James White, a neurosurgeon, who opined that Gilmore was a candidate for surgery. Gilmore requested a second opinion and demanded a panel of four physicians from which she chose Dr. Donald H. Slappey, Jr. See§ 25–5–77(a), Ala.Code 1975. Dr. Slappey performed a second MRI and determined that there had been no changes since the first MRI. Additionally, he determined that Gilmore was not a surgical candidate, continued treating her for a cervical strain, and recommended physical therapy. Dr. Slappey released her to full work without any limitations in August 2003. Gilmore testified that she continued to experience pain from the time she was injured on January 29, 2003, until her last day of work on October 10, 2003.
On October 10, 2003, Gilmore left her employment at Masterbrand, and she has not been employed since that date. Gilmore testified that, although she had ceased working, she would have “good days and bad days” and that she continued to take the medication Dr. Slappey had prescribed for her. In December 2004, Gilmore again demanded a panel of four physicians from which she chose Dr. Swaid N. Swaid. She complained of consistent arm and neck pain with greater pain on the left side of her body in 2004. Dr. Swaid ordered a third MRI, which revealed mild disk bulges at the C4–C5, C5–C6, and C6–C7 levels. He also noted degenerative changes to Gilmore's spine. Dr. Swaid opined that Gilmore was not a surgical candidate and referred her to Dr. Michelle Turnley for pain management in February 2005.
Dr. Turnley administered Gilmore trigger-point injections and prescribed her Lortab and other pain medications. On August 11, 2005, Dr. Turnley placed Gilmore at MMI with no impairment rating. She also referred Gilmore for a functional-capacities evaluation (“FCE”), which indicated that Gilmore's ability to lift was significantly impaired and that her lower-body functions, such as standing and walking, were also occasionally impaired. After receiving the FCE results, Dr. Turnley rescinded her initial impairment rating and assigned Gilmore a 4% impairment rating in September 2005 and ceased treating Gilmore.
In November 2008, Gilmore again sought medical treatment for her pain from Dr. Turnley. Gilmore testified that she had had trouble obtaining medical treatment through Masterbrand from September 2005 until November 2008. She testified that during that period she had continued taking the medications Dr. Turnley had initially prescribed for her because her personal internist, Dr. Renee Davis, had continued to prescribe her the medications during that period. In November 2008, Dr. Turnley diagnosed a persistent cervicalgia neck pain that did not radiate outward or downward. To treat Gilmore's pain, Dr. Turnley prescribed Lortab, Nuerotin, and Flexeril. Further, in December 2009, she ordered Gilmore a TENS unit to manage the pain. Additionally, Dr. Turnley authorized several epidural blocks in an attempt to manage Gilmore's pain. Dr. Turnley testified that she ordered a fourth MRI, which indicated ongoing degenerative changes and showed no substantial differences from the previous MRI tests. Dr. Turnley opined that Gilmore was functionally...
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