SouthernCare, Inc. v. Cowart

• Decision Date: 20 December 2013
• Docket Number: 2120387.
• Citation: 146 So.3d 1051
• Parties: SOUTHERNCARE, INC. v. Margaret COWART.
• Court: Alabama Court of Civil Appeals

146 So.3d 1051

SOUTHERNCARE, INC.

v.Margaret COWART.

2120387.

Court of Civil Appeals of Alabama.

Dec. 20, 2013.

Joseph H. Driver, Thomas L. Oliver II, and Richard E. Trewhella, Jr., of Carr Allison, Birmingham, for appellant.

Donald R. Rhea of Rhea, Boyd & Rhea, Gadsden, for appellee.

On Application for Rehearing

THOMAS, Judge.

The opinion of September 6, 2013, is withdrawn, and the following is substituted therefor.

This is the third time that this case has been before this court. See SouthernCare, Inc. v. Cowart, 48 So.3d 632 (Ala.Civ.App.2009) ; Ex parte SouthernCare, Inc. (No. 2071026, August 19, 2008), 30 So.3d 474 (Ala.Civ.App.2008) (table) (denying a petition for the writ of mandamus). In Cowart, we determined that the trial court's June 2008 interim judgment, which determined that Margaret Cowart's back condition arose out of and in the course of her employment and ordered SouthernCare, Inc. (“SCI”), to be responsible for the care and treatment of that condition, was not a final judgment and was therefore not appealable. Cowart, 48 So.3d at 633. SCI sought certiorari review of our dismissal of its appeal, which review our supreme court granted; however, our supreme court ultimately quashed the writ of certiorari on May 14, 2010. Ex parte SouthernCare, Inc., 48 So.3d 635 (Ala.2010).

The trial court held a second trial to determine Cowart's disability on August 12, 2012, and it entered a judgment on September 6, 2012, determining that Cowart was permanently and totally disabled. After its postjudgment motion was denied by operation of law, SCI appealed the September 6, 2012, judgment to this court.

The following facts were presented to the trial court at the November 2007 compensability trial. Cowart was employed by SCI as a hospice nurse in 1999. In February 2004, Cowart slipped and fell while on her way to recover patient files from a coworker; Cowart landed on her right hip and injured her back. Cowart was not able to work for four or five months as a result of her injuries; SCI paid workers' compensation benefits to Cowart as a result of her injuries. She later returned to work performing her full duties.

In April 2005, Cowart again suffered an injury to her back while assisting a patient. Cowart explained that she was helping the patient turn onto her side and tending the patient's wound

and that when she stood up “it was like you have to stretch and everything and it was hurting really, really bad.” Cowart was again out of work for a short time, and SCI paid workers' compensation benefits to Cowart. After first resuming work on light-duty status, Cowart later resumed her full duties.

Cowart also injured her back at a patient's home in November 2005, when she twisted her back when she missed a step at the patient's home. The record does not indicate that Cowart missed any work as a result of that injury, but she testified that the pain she had suffered after the 2004 fall and the April 2005 injury occurred in the same area of her back and was the same type of pain.

In January 2007, Cowart again injured herself while performing wound

care on a patient. Although Cowart related that she had had assistance from three people to roll and hold the patient so that Cowart could reach the back wound, Cowart stated she had to stand and bend in an awkward way to reach and dress the wound and that when she stood up “it was like something, I said snapped. It was like electricity or something, pain just went through my left leg and into my hip and it was awful.” Cowart continued her work and saw her next patient. However, she said, she was in excruciating pain. The next morning, Cowart testified, she reported the incident to her supervisor. She said that she was out of work for a few months as a result of that incident and that she received workers' compensation benefits while she was not working. Cowart said that, although she resumed working after her January 2007 injury when SCI determined that her injury was not work-related, she worked in constant pain. She also reported that she had had to rely on her sisters to assist her because she could not “do anything” and that she had had to rest in the evenings and on weekends to recuperate; she also commented that she had gone a month without grocery shopping because of her pain.

On the morning of June 12, 2007, Cowart was getting ready for work. When she lifted her left leg to put on her pants, Cowart testified, she felt the same pain she had felt in January 2007, only this time, she said, the pain was even more excruciating. When Cowart telephoned her supervisor to report that she could not come into work, Cowart said, her supervisor informed her that her injury, having occurred at home, was not work-related.

In addition to Cowart's testimony, the record contains voluminous medical records and the deposition testimony of Dr. James White III. The medical records reflect that Cowart received an MRI in 2004 and in June 2005; those MRIs were described as “unremarkable.” Cowart also underwent a myleogram in May 2006; the report from that test stated that Cowart had a “posterior disk bulge at L2–3, L3–4, and L4–5, which does not produce root sleeve cutoff or spinal stenosis

,” and “mild spondylosis at C2–3 and C3–4, which does not produce spinal stenosis and no root sleeve impingement or entrapment demonstrated.” A February 2007 MRI without contrast revealed “moderate central spinal canal and bilateral recess stenosis of L2 to L4 secondary to disc bulging and osteoprolific disease” but “[n]o evidence of herniation or acute intraspinal pathology.” Although Cowart sought and received a court order requiring SCI to pay for a myleogram and a post-myleogram CT scan, those tests were, as far as the record reveals, never conducted.

Cowart's medical history reflects that Cowart had suffered a back strain in 1993 while working for a previous employer. She had also fallen when she was a teenager. However, despite both accidents, Cowart was able to work for several years for SCI without incident. Cowart's medical records also reflect that she fell in her bathtub in July 2004; Cowart testified that she did not recall that incident, and the medical records regarding that fall do not indicate that Cowart complained of back pain as a result of the incident.

The medical records also indicate that Cowart was diagnosed with fibromyalgia

by Dr. Gene Watterson at least as early as 2002. Some of the medical records related to her fibromyalgia diagnosis and treatment reveal that Cowart complained of aching, stabbing, and burning pain in her lower back. However, Dr. Watterson's notes indicate that Cowart reported lower-back pain without radiation. Dr. Watterson's notes indicate that in August 2002 mild degenerative disk-disease symptoms were apparent at T11–12 and that “osteophytic changes are seen arising from the anterior vertebral body endplates anteriorly an L4 and L5.” Throughout Dr. Watterson's notes, he refers to Cowart's fibromyalgia as “significantly symptomatic” and notes that it had “not significantly improved.”

Cowart saw Dr. Steven Roberts in March 2004, after her February 2004 fall. His notes indicate that Cowart had previously been diagnosed with fibromyalgia

, osteoporosis, and osteoarthritis. Based on his reviews of X-rays of Cowart's lumbar spine, Dr. Roberts noted that Cowart suffered from some slight lumbar scoliosis and “some” degenerative disk disease in the upper lumbar region of her back. Dr. Roberts's impression was that Cowart had “degenerative disk disease [in the] lumbar disk area without significant collapse.” Dr. Roberts ordered an MRI; that 2004 MRI report indicated that Cowart has “minor bulges at 2–3, 3–4, and 4–5 without any stenosis or nerve impingement.”

Dr. Perry Savage, who treated Cowart in May 2004 for continued symptoms after her February 2004 fall, indicates in his notes that Cowart's 2004 MRI shows no stenosis, “no HNP,” “mild bulging,” and degeneration at L3–4 and L4–5. Dr. Thomas Staner, who also treated Cowart after the February 2004 fall, indicates that Cowart's 2004 “MRI scan films” are “unremarkable for age.” He opined that Cowart was suffering from “mechanical low back pain.”

Dr. Michael K. Morris treated Cowart in October 2004 for continued pain in her lower back. He notes that Cowart's MRI and X-rays are “unremarkable.” Dr. Morris's notes state that “a lot of [Cowart's] pain can be attributed to her history of fibromyalgia

.” He further noted that, “[o]bviously, this diagnosis is not work-related.”

With the exception of her February 2004 fall, each time that Cowart injured herself at work, SCI directed her to seek medical treatment at Occupational Health Center (“OHC”). The records from OHC reveal that Dr. Nathalla Elmore diagnosed Cowart with a lumbar strain

in April 2005, in November 2005, and in January 2007. Cowart also went to OHC in June 2007; again, she was diagnosed with a lumbar strain. The June 2007 records indicate that the June 21, 2007, appointment was considered to be a follow-up visit related to Cowart's January 2007 injury.

After her January 2007 injury, Cowart was referred to Dr. Morris Seymour for evaluation. Dr. Seymour saw Cowart only once on April 20, 2007. Cowart testified that she took her February 2007 MRI film to Dr. Seymour's office with her. Dr. Seymour's office note indicates, however, that he reviewed an April 15, 2007, MRI from BioImaging of Huntsville, which the parties agree was not an MRI of Cowart's spine. Further, in his office note, Dr. Seymour comments that, upon review of the MRI, “I cannot see any true amount of stenosis at any level.” Based on his examination and his review of an MRI, Dr. Seymour stated that Cowart's MRI was basically unremarkable, that Cowart did have some symptoms suggestive of an L5 nerve-root irritation and that a myleogram might be useful for further diagnosis, and that he “cannot see any injury that I would delineate and attribute to her work[ers'] compensation event.” In Dr. Seymour's opinion,...