Walker v. Flagstar Enterprises, Inc., 2060128.

• Court: Alabama Court of Civil Appeals
• Writing for the Court: Thomas
• Citation: 981 So.2d 1137
• Docket Number: 2060128.
• Decision Date: 21 September 2007
• Parties: Darlene WALKER v. FLAGSTAR ENTERPRISES, INC.

981 So.2d 1137 Darlene WALKER
v.
FLAGSTAR ENTERPRISES, INC. 2060128. Court of Civil Appeals of Alabama. September 21, 2007.

Appeal from the Circuit Court, Autauga County, No. CV-06-03, John B. Bush, J.

[981 So.2d 1138]

J. Myron Smith, Prattville, for appellant.

Kyle L. Kinney and John B. Welsh of Gaines, Wolter & Kinney, P.C., Birmingham, for appellee.

THOMAS, Judge.

Darlene Walker sued Flagstar Enterprises, Inc., her former employer, seeking benefits pursuant to the Alabama Workers' Compensation Act, § 25-5-1 et seq., Ala.Code 1975 ("the Act"), due to an on-the-job incident that, she claims, eventually rendered her permanently and totally disabled. The trial court entered a summary judgment in favor of Flagstar because, the trial court determined, Walker had filed her claim after the applicable statute of limitations had expired. The trial court specifically held that Walker's injury was not a latent injury, and, therefore, that it did not come under the exception tolling the running of the statute of limitations for claims resulting from latent injuries. We affirm.

Walker started her employment with Flagstar when she began working at a Hardee's fast-food restaurant that was owned and operated by Flagstar in 1992. She subsequently became a manager of the restaurant. On July 8, 1996, while Walker was walking to her automobile to deliver a bank deposit for Flagstar, her purse was stolen. Walker claims that the incident resulted in an injury to her left shoulder and neck and that she missed approximately two weeks of work immediately after the incident. Flagstar paid for Walker's medical treatment as a result of the incident, and it paid her temporary-total-disability benefits for two days.

Over the course of the next nine years, Walker continued to experience shoulder and neck pain. During that time, she was prescribed pain medications, received electrical nerve stimulation and steroid injections, and underwent three surgeries to treat her shoulder and neck pain. Flagstar paid all of her medical expenses related to her shoulder and neck pain. Although Walker's employment with Flagstar was terminated approximately one year after the incident in which her purse was stolen, she continued to maintain full-time employment with various other employers despite her struggles with managing her pain. She claimed that, between the time of the incident in 1996 and when she filed this action in January 2006, the pain was bearable, with only sporadic periods of

981 So.2d 1139

great pain; therefore, she said, she had not previously sued Flagstar seeking benefits for a permanent partial or a permanent total disability. However, Walker has filed two previous lawsuits against Flagstar regarding this same injury.

In March 2000, Walker sued to receive medical benefits from Flagstar. The parties settled their dispute, and the case was dismissed. Walker filed the second lawsuit in June 2001, and that lawsuit was also dismissed by the trial court after the parties settled. In the second lawsuit, just as in the first one, Walker sought medical benefits from Flagstar. However, Walker included the following additional allegations in her complaint in the second lawsuit:

"[Walker] contends that she has a permanent disability due to her on-the-job injury of July 8, 1996, and desires a copy of the [Functional Capacities Evaluation].

"[Walker] requests the Court to Order [Flagstar] to provide the Court with the [Functional Capacities Evaluation] results so that the ultimate determination of [Walker's] degree of permanent disability can be expedited."

Walker claims that, in April 2005, the pain became so unbearable that she could no longer take all the pain-management medication she required and still work. Walker claims that she decided on April 8, 2005, that she had exhausted all possible remedies known to her and her doctors and that her injury to her shoulder and neck had resulted in a permanent total disability. Subsequently, Walker's treating physician affirmed her determination and provided a written opinion that Walker's pain was permanent and required continuous medication therapy. The physician opined that Walker was permanently and totally disabled and unable to work due to her pain.

When Flagstar denied her request for permanent-total-disability benefits, Walker filed the present action against Flagstar on January 5, 2006. The trial court entered a summary judgment in favor of Flagstar, concluding that Walker's injury was not a latent injury and that the applicable statute of limitations barred Walker's claim.

Walker timely appeals, alleging that the trial court erred by determining that her claim was barred by the statute of limitations; she specifically asserts that the trial court erred in determining that her injury was not a latent injury and, thus, that her claim did not fall within the latent-injury exception to the statute of limitations for workers' compensation claims.

Standard of Review

This court's review of legal issues in a workers' compensation case is without a presumption of correctness. See § 25-5-81(e)(1), Ala.Code 1975, and Flesher v. Saginaw Div., Gen. Motors Corp., 689 So.2d 113 (Ala.Civ.App.1996). In Bailey v. R.E. Garrison Trucking Co., 834 So.2d 122, 123 (Ala.Civ.App.2002), this court reviewed a summary judgment in a workers' compensation case and stated our standard of review as follows:

"A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing `that there is no genuine issue as to any material fact and that [he] is entitled to a judgment as a matter of law.' Rule 56(c)(3), Ala. R. Civ. P. The court must view the evidence in a light most favorable to the nonmoving party and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990). If the

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movant meets this burden, `the burden then shifts to the nonmovant to rebut the movant's prima facie showing by "substantial evidence."' Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala. 1992)."

834 So.2d at 123.

Discussion

Generally, workers' compensation claims for injuries resulting from work-related accidents must be brought within two years of either: 1) the accident or 2) the date of the employer's last voluntary payment of compensation...