Riley v. Reed Contracting Servs., Inc. (Ex parte Reed Contracting Servs., Inc.)

• Decision Date: 29 January 2016
• Docket Number: 2150230.
• Parties: EX PARTE REED CONTRACTING SERVICES, INC. (In re Henry Riley v. Reed Contracting Services, Inc.)
• Court: Alabama Court of Civil Appeals

203 So.3d 96

EX PARTE REED CONTRACTING SERVICES, INC.(In re Henry Riley

v.Reed Contracting Services, Inc.)

2150230.

Court of Civil Appeals of Alabama.

Jan. 29, 2016.

Dennis Riley of Morring Schrimsher & Riley, Huntsville, for petitioner.

J. Barton Warren of Warren & Simpson, P.C., Huntsville, for respondent.

THOMPSON, Presiding Judge.

Reed Contracting Services, Inc. ("Reed Contracting"), petitions this court for a writ of mandamus directing the Madison Circuit Court ("the trial court") to vacate its order of October 28, 2015, in which the trial court ordered Reed Contracting and its workers' compensation carrier to authorize bilateral knee-replacement surgeries for Henry Riley and to resume paying Riley temporary-total-disability benefits in connection with a work-related accident suffered by Riley. In the October 28, 2015, order, the trial court also stated that it "rescinded" or rejected the date one of Riley's treating physicians had given for Riley's having reached maximum medical improvement ("MMI"), and it ordered Reed Contracting to pay Riley "back-pay in the form of accrued temporary-total-disability benefits."¹

The materials submitted to this court in support of the petition indicate the following. Reed Contracting is in the business of paving highways and doing what Riley called "dirt work." Riley was employed by Reed Contracting, working as a tire technician. In that job, Riley said, he was responsible for repairing tires on all vehicles Reed Contracting used, from company automobiles to heavy equipment like dump trucks, tractors, and earth-moving equipment. There is no dispute that on March 29, 2012, Riley was working in a "man lift"—a device that extends to raise workers in a framed basket to enable them to work at elevated heights—when he lost his footing and fell approximately six feet to the asphalt below. He said that he landed directly on his hands and knees. Riley was taken to Reed Contracting's company physician, Dr. Eric Roth of the Occupational Health Group, and was treated for pain in both wrists and both knees. Initially, Riley experienced more pain in his right knee than in his left knee. Riley's wrist injuries are not at issue in this matter; therefore, we will not set forth facts regarding the extent of those injuries or the treatment of those injuries.

On April 16, 2012, a magnetic resonance imaging ("MRI") scan was performed on Riley's right knee. The MRI indicated that Riley had a tear in the medial collateral ligament ("MCL"), or the inside part of his right knee. Dr. Roth referred Riley to Dr. Michael Cantrell, an orthopedic surgeon. Dr. Cantrell first treated Riley on May 7, 2012. Riley was still complaining of pain in both knees, but he said that the pain in his right knee was worse. Dr. Cantrell diagnosed Riley with osteoarthritis in addition to the torn MCL and initially recommended conservative treatment, to include physical therapy. At a follow-up visit on August 16, 2012, Riley was still experiencing pain in both knees. Riley's left knee was x-rayed, and Dr. Cantrell determined that Riley had a "fracture," that is, a fragment of bone or material, in his left kneecap. Dr. Cantrell testified that, in his opinion, the fracture was the result of the March 29, 2012, fall. The X-ray also showed that Riley had osteoarthritis in his left knee. In a report that Dr. Cantrell prepared for Dr. Roth, Dr. Cantrell stated that he told Riley he could excise the fragment, which would ease the pain directly over Riley's kneecap but "would not resolve his osteoarthritic pain, which is present in both knees and has been aggravated by his work injury." The record indicates that Riley did not have the fragment removed from his left knee.

It appears from the record that Riley then concentrated on obtaining treatment for his wrists, one of which required surgery, and that he next sought medical attention for the pain in his knees on May 13, 2014. On that date, Dr. Cantrell said, Riley stated that his left knee hurt worse than his right knee. Dr. Cantrell had both of Riley's knees x-rayed. The X-rays showed that Riley had arthritis in the three compartments of both knees. However, Dr. Cantrell testified that the X-rays did not show any kind of fracture or loose fragment of the left kneecap. In the physician notes regarding Riley's May 13, 2014, visit, Dr. Cantrell stated:

"Arthritis symptoms are not directly related to the work injury, should be treated outside of the work injury with regards to the left knee. I don't see a fragment on the radiographs, so I'd like to get a CT scan. If there is a separate fragment which is symptomatic, we would excise that and that would be related to his work injury."

The CT scan was performed on May 21, 2014. According to Dr. Cantrell, the scan showed only "arthritic changes," and there was no evidence of a recent acute fracture and no scarring or indication of a "fracture site."

Dr. Cantrell saw Riley for the last time on June 17, 2014. At that time, Dr. Cantrell diagnosed Riley with osteoarthritis in both knees. The physician notes for June 17, 2014, state that Dr. Cantrell prescribed an anti-inflammatory medication and gave Riley a home-therapy program. He also told Riley that, "from here on out, we'd be treating his arthritic symptoms, which are unrelated to his work injury and see him as needed." Dr. Cantrell placed Riley at MMI on June 17, 2014. He determined that Riley had no impairment to his knees and approved him for full duty.

Riley was not happy with the treatment rendered by Dr. Cantrell and said his knees still hurt to the point that he was unable to do his previous job. He requested a panel of four physicians, as he is permitted to do under § 25–5–77(a), Ala.Code 1975, a part of the Alabama Workers' Compensation Act ("the Act"), § 25–5–1 et seq., Ala.Code 1975. From that panel of four, Riley chose to be treated by Dr. Jeffrey C. Davis, an orthopedic surgeon. Dr. Davis first saw Riley on October 28, 2014, and on that day, X-rays were taken of both of Riley's knees. Dr. Davis said that the X-rays indicated that Riley had severe arthritis in both kneecaps and mild to moderate arthritis in the inside part of both knees. Dr. Davis testified that he believed that Riley had knee arthritis that predated or pre-existed his March 29, 2012, injury, but that the arthritis"was made worse and more symptomatic as a result of his on-the-job injury." The record demonstrates that Dr. Greg Cheatham, Riley's personal physician, had diagnosed Riley with arthritis in his knees before the March 2012 accident.

In his deposition, Dr. Davis explained that an injury like Riley's does not necessarily make existing arthritis worse, but, he said, it can make symptoms of the underlying arthritic condition worse or produce new symptoms. Dr. Davis said the injury "precipitates symptoms or pain, inflammation that's hard to settle down after that, so that it becomes symptomatic." Similarly, despite his statement that Riley's arthritic symptoms were unrelated to the March 2012 accident, Dr. Cantrell also testified that trauma to an arthritic knee such as that experienced by Riley in the fall can aggravate an underlying arthritic condition and produce new symptoms.

Dr. Davis testified that, in his opinion, Riley's March 2012 fall aggravated his pre-existing arthritis to produce symptoms that warrant bilateral knee-replacement surgery. Nonetheless, Dr. Davis did express some reservations about the potential success of the knee-replacement surgeries in Riley's case given Riley's failure to respond to conservative treatment. He also said that, although there is no question that Riley suffered an injury to his knees, "[i]t wasn't a type of injury that I would necessarily associate with subsequently leading to a knee replacement surgery most of the time. That is my hesitation" with saying that the surgeries are, as Reed Contracting's attorney asked, "actually related to the work injury." Dr. Davis did note, however, that he believed that the trauma to Riley's knees accelerated the timing of when Riley needed the surgeries.

Dr. Cantrell testified that he would have no hesitation recommending knee-replacement surgeries for Riley, saying that when all other treatment has failed, knee replacements would be the next step for Riley. Dr. Cantrell testified that he could not say whether the effect of the March 2012 fall on Riley's knees was an aggravation of Riley's arthritis, which Reed Contracting's attorney defined as making the arthritis permanently worse, or whether the effect was an exacerbation of his arthritis, which Reed Contracting's attorney defined as making the underlying problem temporarily worse but then the underlying problem returns to its pre-injury state. Dr. Cantrell said that Riley would have to be the person to answer that question.

Dr. Davis testified that, if Riley were to have the knee-replacement surgeries, Riley's current date of MMI would have to be "rescinded" and a new date determined. He said that he anticipated Riley would reach MMI three to four months after the surgeries. Dr. Davis's records on Riley indicate that, without the surgeries, Dr. Davis would "recommend no change in his date of [MMI] or permanent partial impairment."

During his testimony, Riley, who was 53 when the accident occurred, acknowledged that, before the March 2012 accident, he had had some pain in his knees from the "normal aging process." He said that Dr. Cheatham had told him he had some degenerative joint disease or arthritis in his knees and gave him "a cream" that helped. However, Riley said, he had not had problems with his knees before the accident and had been able to do his job without any assistance or problems. Since the accident, however, Riley said that he has "a great deal of pain" in both knees and experiences discomfort while sleeping. He said that, on a scale of 1 to 10, he rated his knee pain as a 6, and that it would sometimes rise to an 8.

After March 29, 2012, Riley said, he had...