Mike Makemson Logging v. Colburn

• Decision Date: 12 June 1992
• Parties: MIKE MAKEMSON LOGGING v. James Alvin COLBURN. 2910241.
• Court: Alabama Court of Civil Appeals

Page 1049

600 So.2d 1049

MIKE MAKEMSON LOGGING v. James Alvin COLBURN.

2910241.

Court of Civil Appeals of Alabama.

June 12, 1992.

Harvey Jackson, Jr. and Richard E. Fikes of Tweedy, Jackson and Beech, Jasper, for appellant.

James E. Wilson, Jasper, for appellee.

RUSSELL, Judge.

Mike Makemson Logging (employer) appeals from an order entered in a workmen's compensation case awarding thirty weeks of temporary total disability to James Alvin Colburn (employee) and continuing the case for six months for a determination of permanent disability.

Initially, we note that the employee filed a motion to dismiss the appeal, alleging that the "temporary order and decree" entered by the trial court is not a final and appealable order as required by Alabama law. The employee contends that, because the trial court stated that there was reason to believe that the employee's disability will improve if he stops smoking and, therefore, delayed final determination of the extent of his disability, there is an issue for appeal that has yet to be determined by the trial court, and there is no appealable order.

A party may appeal to the appropriate court from any final judgment of the circuit court or probate court. § 12-22-2, Ala.Code 1975. The appellate court is without jurisdiction to hear the matter where no final judgment has been entered. John Crane-Houdaille, Inc. v. Lucas, 534 So.2d 1070 (Ala.1988). However, the determination of a judgment's finality does not depend on the title of the order; rather, it depends on whether the judgment sufficiently ascertains and declares the rights of the parties. Ex parte DCH Regional Medical Center, 571 So.2d 1162 (Ala.Civ.App.1990). In addition, a final judgment in a workmen's compensation case must contain a statement of the law and facts and conclusions as determined by the trial court. § 25-5-88, Ala.Code 1975.

In DCH the trial court entered an "interlocutory decree" ordering weekly temporary total disability payments "until such time as the plaintiff reaches maximum medical recovery." The trial court "retained jurisdiction to determine the issue of permanent loss of earning capacity at a later date." Here, as in DCH, we find that the trial court's order contains the necessary findings to support an appeal. We further find that the trial court's retention of jurisdiction over the award of permanent disability does not bar such an appeal. Therefore, we deny the motion.

We note that in a workmen's compensation case this court's standard of review is a two-step process. We will first determine if any legal evidence supports the trial court's findings. Then we must determine whether any reasonable view of that evidence supports the trial court's judgment. Ex parte Eastwood Foods, Inc., 575 So.2d 91 (Ala.1991).

The facts in this case are that the employee is forty-three years old, is married, and has three children. On February 20, 1990, while on the job as a truck driver for the employer and changing a truck tire, the employee skinned his leg. At first the leg healed, and he continued to work. However, problems occurred with the leg due to swelling and pain, and he was hospitalized. He subsequently was treated by two different doctors. The treatment prescribed included taking medication, elevating the leg, stopping smoking, and losing weight.

The employee continued to work for a period of time, but eventually was unable to work due to problems with his leg. He took the medication prescribed and elevated the leg; however, he did not stop smoking and did not lose weight.

Two doctors who treated the employee testified at deposition that the employee would not reach maximum medical improvement until he quit smoking. They also testified that smoking was the cause of the employee's condition and that there could be a complete recovery, probably within two months, if he followed instructions and stopped smoking.

In addition to awarding thirty weeks of temporary total disability, the trial court continued the cause "for a period of six months in order to allow the [employee] to attempt to reach maximum medical improvement." The trial court further stated "that a final hearing will be had in this cause on the regular workmen's compensation docket on July 8, 1992, or as soon as the medical experts are convinced that the [employee] has reached maximum medical improvement, and that a final determination will be made at that time by this Court as to the extent of the [employee's] permanent disabilities and entitlements, if any."

The employer contends that the employee has refused reasonable medical treatment and that, pursuant to § 25-5-77(b), Ala.Code 1975, he is not entitled to temporary total benefits. Section 25-5-77(b) provides in pertinent part as follows:

"If the injured employee refuses to comply with any reasonable request for examination, or refuses to accept the medical service or physical rehabilitation which the employer elects to furnish under the provisions of this chapter, his right to compensation shall be suspended and no compensation shall be payable for the period of such refusal."

This provision's purpose is to prevent malingering or to determine if the injury is real, reparable, or capable of being...