Equity Group—Alabama Division d/b/a Keystone Foods ("Keystone Foods") appeals from a judgment determining that Rodney Dewayne Harris sustained a compensable injury and awarding him workers' compensation benefits, pursuant to the Alabama Workers' Compensation Act, § 25-5-1 et seq., Ala.Code 1975 ("the Act"). We affirm in part, reverse in part, and remand.
In February 2008, Harris sued Keystone Foods, seeking workers' compensation benefits. In his complaint, Harris alleged that he had injured his back in a workplace accident on July 6, 2007. Keystone Foods filed an answer denying the material allegations of the complaint. Keystone Foods subsequently sought a hearing to determine whether Harris had sustained a compensable injury. Specifically, Keystone Foods sought a determination whether Harris had actually been involved in an accident at work and whether Harris had given proper notice of his alleged work-related back injury to Keystone Foods. In January 2009, the trial court held an evidentiary hearing to determine compensability.
On February 23, 2009, the trial court entered a judgment finding that Harris had injured his back in an accident at work on July 6, 2007, and that Keystone Foods had received sufficient notice that Harris had injured his back at work. The trial court concluded that Harris had sustained a compensable injury to his back, and the trial court ordered as follows:
After the denial of its postjudgment motion, Keystone Foods appealed.
Initially, we consider whether the trial court's February 23, 2009, judgment is a final judgment that can support an appeal. An appeal typically lies only from a final judgment. Palughi v. Dow, 659 So.2d 112, 113 (Ala.1995). Recently, this court clarified that a "judgment determining compensability and awarding both medical benefits and temporary-total-disability benefits [is] final for purposes of appeal." Fluor Enters., Inc. v. Lawshe, 16 So.3d 96, 99 (Ala.Civ.App.2009). See Belcher-Robinson Foundry, LLC v. Narr, 42 So.3d 774 (Ala.Civ.App.2010) (following the reasoning of Fluor Enterprises but noting that it is in tension with earlier decisions of this court). In this case, the trial court's judgment determined that Harris had sustained a compensable injury, and it
At trial, Harris testified that he injured his back at work on Friday, July 6, 2007, as he "lifted up and pulled" "the drain" of a "macerator" machine or "grinder machine." Harris testified that the alleged accident occurred at approximately 2:15 p.m., 15 minutes before his final shift of the work week was scheduled to end. That day was the last day that Harris was scheduled to work before taking a week-long vacation beginning the following Monday. Harris acknowledged that he knew company policy required him to report any workplace accident to a supervisor immediately. However, Harris did not report an accident to a supervisor on the date of the alleged accident. When asked at trial why he did not immediately report the alleged accident, Harris stated: "I just didn't. [I t]hought it wasn't hurt that bad." Harris stated that he initially believed that he had pulled a muscle in his back. He testified that he had strained his back on past occasions and had recovered from those strains. Harris's wife, April Harris ("April"), testified that Harris returned home from work on July 6 with an injured back. She further testified that, when she asked Harris what had happened to his back, he told her that he had injured his back at work earlier that day.
Harris also testified that, at the time of the alleged accident, there was no supervisor in the vicinity. Joseph Jenkins, one of Harris's supervisors at Keystone Foods, testified at trial that he did not remember if he was at work at the time of Harris's alleged accident. Jenkins stated that a supervisor would have been present at work when the alleged accident occurred. Pam Stone, another one of Harris's supervisors, testified at trial that she did not remember whether she was at work when the alleged accident occurred. She testified that a supervisor would have been present at that time, however.
Harris testified that the pain in his back became worse over the following weekend. April testified that Harris experienced considerable back pain during that weekend. On Monday, July 9, the first day of his vacation, Harris visited either Dr. Elliot Saltz or his partner, a Dr. Taher, complaining of back pain. The medical record of that visit indicates that Harris's back pain began the previous day, which was two days after the alleged accident. Harris
April testified that, on Monday, July 16, the day Harris was scheduled to return to work from vacation, she telephoned Jenkins to report that Harris would be unable to work that day due to his back pain. According to April, she told Jenkins at that time that Harris had injured his back in an accident at work on July 6. However, Jenkins testified at trial that April never informed him that Harris had suffered an accident at work. Stone testified that April called her on Monday, July 16 to report that Harris had fallen on some stairs and that he would not be coming into work. Stone testified that April did not indicate that Harris had had an accident at work. During the subsequent weeks, April and Stone had several telephone conversations in which April reported on the condition of Harris's back. Stone testified that she was never notified that Harris had suffered an accident at work. Stone testified that at some point she prepared "papers" pertaining to the federal Family Medical Leave Act for April to pick up on Harris's behalf; the record does not indicate whether Harris ever filed those documents.
On July 18, 2007, Harris and April visited Dr. James White, a neurosurgeon, to whom Harris had been referred by Dr. Saltz. A "history and physical" form completed on that visit indicates Harris's chief complaint: "[lower back pain], bilateral hip, leg pain [and] numbness. Toes numb [on left] foot x 3 months." That form also indicates that there was no known date of "injury" associated with Harris's complaints. Dr. White's notes of that visit state, in pertinent part: "[Harris] does not relate a job injury but [that] he just got up out of bed after a vacation. His back popped and he has had severe pain in his low back and left leg." Harris, accompanied by Catherine and April, was treated by Dr. White again on July 25, 2007. At that time, Dr. White diagnosed Harris as having a "large" disk herniation and severe degenerative disk disease, both in his lower back. Dr. White testified by deposition that Harris told him that he was not injured at work.
Harris, however, testified that he told Dr. White that he had injured his back in an accident at work. April also disputed Dr. White's testimony stating that Harris did not attribute his back pain to an accident at work. Harris, who is legally deaf, testified that he had difficulty communicating with or understanding Dr. White. According to Harris, he told Dr. White that he needed to read Dr. White's lips to understand him. Harris stated that Dr. White, however, walked back and forth while talking to Harris, making it difficult for Harris to understand him. The record on appeal indicates that Catherine and April helped Harris communicate with Dr. White. Both Catherine and April testified that Harris had difficulty communicating
On August 17, 2007, Harris filed a claim with the United Food and Commercial Workers Union Local 1995 ("the union"), seeking disability benefits. The claim form indicates that Harris sought disability benefits for a ruptured disk; that he asserted that his injury was caused by his employment; and that he asserted that his claim was not "based on an accident" but instead was based on "repetitive motion [and] lifting for several years." According to April, the union denied the claim and informed Harris that he instead needed to file a workers' compensation claim.
The record contains a "Workers Compensation Retail Prescription Drug Program" card issued to Harris by the workers' compensation insurance carrier of Keystone Foods. The card, which April testified Harris received in the mail, indicates a "date of injury" of August 23, 2007, several weeks after the alleged accident of July 6. It is unclear how that date of injury was determined. Although the trial court found that Harris received the card on September 17, 2007, the evidence in the record does not seem to indicate the exact date Harris received the card. In its brief, Keystone Foods asserts that the card was erroneously issued, but Keystone Foods cites no direct evidence in the record supporting that assertion.
On September 10, 2007, Martha Jacobs, the safety manager at Keystone Foods, completed an "accident investigation report" regarding Harris's injured back. The report lists the "date of injury" as "unknown" but has a notation in the margin indicating that Harris had filed a disability claim with the union on August 23, 2007.
At some point, Harris asked Dr. Saltz and Dr. Taher for a written statement indicating that Harris's back injury was caused by a work accident. Dr. Saltz and Dr. Taher responded with a letter stating that they were not comfortable making such a statement because they had no documentation of a workplace accident and they could not remember being told about any such accident.
Standard of Review
Section 25-5-81(e), Ala.Code 1975, provides this court's standard of review:
Substantial evidence is "`evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.'" Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)).
Edwards v. Jesse Stutts, Inc., 655 So.2d 1012 (Ala.Civ.App.1995)."
Landers v. Lowe's Home Ctrs., Inc., 14 So.3d 144, 151 (Ala.Civ.App.2007) (opinion on original submission). The "appellate court must view the facts in the light most favorable to the findings of the trial court." Ex parte Professional Bus. Owners Ass'n Workers' Comp. Fund, 867 So.2d 1099, 1102 (Ala.2003).
Keystone Foods argues that the trial court erred in determining that Harris sustained a compensable back injury. As part of that argument, Keystone Foods argues that Harris's back injury is not compensable because, Keystone Foods says, it did not receive sufficient notice of that injury.
Honda Mfg. of Alabama, LLC v. Alford, 6 So.3d 22, 25-26 (Ala.Civ.App.2007).
Goodyear Tire & Rubber Co. v. Long, 31 So.3d 715, 719 (Ala.Civ.App.2009).
In this case, the trial court, relying on April's testimony, found that April had told one of Harris's supervisors on July 16, 2007, that Harris had injured his back at work 10 days earlier, on July 6, 2007. "Knowledge on the part of a supervisory or representative agent of the employer that a work-related injury has occurred will generally be imputed to the employer." Wal-Mart Stores, Inc. v. Elliott, 650 So.2d 906, 908 (Ala.Civ.App. 1994). Although the record contained testimony by employees of Keystone Foods contradicting April's testimony regarding notice, the trial court assigned greater weight to April's testimony. "It is axiomatic that it is the [fact-finder's] province to resolve conflicts in testimony . . . and to judge the credibility of witnesses." Flint Constr. Co. v. Hall, 904 So.2d 236, 250 (Ala.2004). April's testimony constitutes substantial evidence that Keystone Foods received oral notice of the alleged work-related injury within 90 days of the date the injury allegedly arose. Therefore, no "absolute bar to recovery" ever arose under § 25-5-78. Goodyear and Honda.
Moreover, the record contains further evidence indicating that Keystone Foods was notified of Harris's alleged work-related injury within 90 days. The trial court found that the issuance of the workers' compensation prescription-drug card to Harris further supported its finding that Keystone Foods had received proper notice.
Citing § 25-5-78, Keystone Foods also argues that, because it is undisputed that Harris did not provide notice within five days of the alleged accident, he is barred from recovering any "physician's or medical fees," even if he provided notice during the 90-day period prescribed by § 25-5-78. In making that argument, Keystone Foods cites the language of § 25-5-78, which provides that
(Emphasis added.) Keystone Foods contends that, because the 90-day notice period found in § 25-5-78 refers only to "compensation" while the 5-day notice period refers to "physician's or medical fees," failure to provide notice within the 5-day period bars the recovery of those fees, i.e., it bars the recovery of medical benefits. "Compensation" and "medical benefits" are distinct benefits under the Act. Section 25-5-1(1), Ala.Code 1975, defines "compensation" as "[t]he money benefits to be paid on account of injury or death, as provided in Articles 3 and 4" of the Act. That section further provides that "`[c]ompensation' does not include medical and surgical treatment and attention, medicine, medical and surgical supplies, and crutches and apparatus furnished an employee on account of injury."
We do not read § 25-5-78 to preclude the award of all medical benefits if an employee fails to provide notice within five days of the work-related injury. Section 25-5-78 explicitly provides that, if five days' notice is not given, an employee will not be entitled to medical benefits that "may have accrued" before the date of notice. (Emphasis added.) That section does not bar any subsequent medical benefits accruing after the date of notice. We note that, if an employee who provides notice within the 90-day period but outside the 5-day period establishes a "good reason" for providing notice outside the 5-day period, a trial court may award benefits accruing from the date of the injury rather than from the date of notice. See, e.g., Cook Transports, Inc. v. Beavers, 528 So.2d 875 (Ala.Civ.App.1988). Keystone Foods cites no caselaw applying § 25-5-78 to preclude all medical benefits when notice was given outside the 5-day notice period but within the 90-day notice period. Harris's failure to provide five days' notice did not bar his recovery of medical benefits under § 25-5-78.
Hammons v. Roses Stores, Inc., 547 So.2d 883, 885 (Ala.Civ.App.1989).
Keystone Foods also argues that Harris's back injury is not compensable because, it says, the record does not contain substantial evidence supporting the trial court's finding that Harris had an accident at work on July 6, 2007. Stated differently, Keystone Foods argues that Harris did not establish the existence of an accident arising out and in the course of his employment, i.e., that he did not establish legal causation. Hammons.
In arguing that Harris did not have an accident at work on July 6, Keystone Foods emphasizes that Harris did not immediately report the alleged accident. However, the trial court did not assign much weight to that evidence. The trial court stated:
Keystone Foods also emphasizes that the medical records of the doctors who treated Harris in the days following his alleged accident indicate that Harris did not attribute his back injury to a workplace accident. Certainly, that evidence tends to undermine Harris's contention that he had a workplace accident. In contradiction to those medical records and Dr. White's testimony, which reflects his medical records, Harris, April, and Catherine each testified that Harris's physicians were informed that he had injured his back in an accident at work. The trial court seemed to attribute at least part of this discrepancy to Harris's deafness and his related communication problems. Regarding Harris's treatment with Dr. White in particular, the trial court found:
Keystone Foods contends that the union claim form submitted by Harris approximately six weeks after the alleged accident indicates that a workplace accident never
The trial court was presented with conflicting evidence regarding whether Harris in fact had a workplace accident on July 6. "[T]he trial court is in the best position to weigh conflicting evidence and to judge the credibility of witnesses. . . ." Ex parte Mclnish, 47 So.3d 767, 773 (Ala. 2008). In finding that Harris in fact had had an accident at work on July 6, the trial court placed great weight on Harris's own testimony stating that he had injured his back in a workplace accident. In its judgment, the trial court specifically found Harris to be a credible witness. Harris's testimony was supported by April's testimony that Harris had complained of injuring his back at work when he returned from work on June 6 and that he experienced considerable pain over that weekend. Additionally, the trial court noted that there was evidence tending to explain some of the discrepancies between Harris's testimony and the medical evidence regarding whether an accident had occurred. "This court's role is not to reweigh the evidence, but to affirm the judgment of the trial court if its findings are supported by substantial evidence and, if so, if the correct legal conclusions are drawn therefrom." Bostrom Seating, Inc. v. Adderhold, 852 So.2d 784, 794 (Ala.Civ. App.2002). After a careful consideration of the evidence, we conclude that substantial evidence supports the trial court's finding that Harris suffered a workplace accident on July 6. That is, the record contains evidence of such weight and quality that a fair-minded person in the exercise of impartial judgment could have reasonably inferred that Harris established, by the preponderance of the evidence, that the accident occurred. § 25-5-81(e) and Ex parte Trinity Indus., Inc., 680 So.2d at 268.
In its argument that a work-related accident never occurred, i.e., that there is not legal causation, Keystone Foods briefly contends that the lack of medical evidence relating Harris's back injury to the accident indicates that Harris did not establish medical causation. That contention comes near the end of the argument made by Keystone Foods that the medical evidence in this case indicates that Harris did not have a workplace accident. Keystone Foods states:
Brief of Keystone Foods at 37-38. Although it is unclear whether Keystone Foods has properly presented a lack-of-medical-causation argument, out of an abundance of caution we will address what we understand that argument to be.
To establish medical causation in cases involving an accident, "`an employee must . . . establish medical causation by showing that the accident caused or was a contributing cause of the injury.'" Page v. Cox & Cox, Inc., 892 So.2d 413, 417 (Ala.Civ.App.2004) (quoting Pair v. Jack's Family Rests., Inc., 765 So.2d 678, 681 (Ala.Civ.App.2000)). It appears that Keystone Foods is arguing that the lack of medical evidence connecting Harris's back injury to his accident indicates that Harris did not establish medical causation. However, "the factfinder is authorized to find the [medical] causation element absent medical evidence to that effect." Ex parte Price, 555 So.2d 1060, 1062 (Ala.1989). "It is in the overall substance and effect of the whole of the evidence, when viewed in the full context of all the lay and expert evidence, and not in the witness's use of any magical words or phrases, that the test finds its application." Id. at 1063.
Waters Bros. Contractors, Inc. v. Wimberley, 20 So.3d 125, 134 (Ala.Civ.App.2009).
In this case, Harris was diagnosed as having a large disk herniation in his lower back shortly after the accident. The record indicates that Harris had experienced occurrences of nondisabling back pain before his accident of July 6, 2007. However, the record suggests that the back pain experienced by Harris following his July 6 accident was a severe, disabling pain unlike the back pain he had experienced before. Accordingly, the trial court could have inferred that the accident caused or contributed to Harris's injury. Id. Moreover, Dr. White testified that, assuming that Harris had been pushing, lifting, and pulling at work, those activities could have caused his herniated disk. As noted, Harris testified that he injured his back while lifting up and pulling the drain of a macerator machine at work. Although the medical evidence in the record fails to document that Harris had a workplace accident, that evidence does not indicate that, if such an accident actually occurred, it bears no relation to Harris's herniated disk. We conclude the record contains substantial evidence indicating that Harris established medical causation.
Keystone Foods also argues that the trial court erred by ordering Keystone Foods to provide Harris with "an authorized physician to be selected from a panel
Fluor, 16 So.3d at 99-100.
This court concluded:
16 So.3d at 103.
In this case, the trial court determined that Keystone Foods received proper notice of Harris's work-related injury. However, Keystone Foods did not provide medical treatment to Harris for that injury following that notice, and the trial court later determined Harris's injury to be compensable. Therefore, Keystone Foods has forfeited its right to select an initial treating physician in this case. Fluor. The physicians who treated Harris following the date of notice are deemed to have been implicitly authorized. Id.
Although we disagree with Keystone Foods' argument that it retained the right to select a treating physician until compensability had been determined, we agree with Keystone Foods that the trial court erred by granting Harris the right to select a physician from a panel of four neurosurgeons. Under § 25-5-77(a), an employee who becomes dissatisfied with his or her authorized treating physician and notifies the employer of such dissatisfaction is entitled to select a physician from a panel of four physicians selected by the employer. However, the record does not indicate that that procedure has been implicated in this case. Therefore, the trial court's judgment erroneously required Keystone Foods to provide Harris with a panel of four neurosurgeons. Accordingly, we reverse that part of the trial court's judgment ordering Keystone Foods to provide Harris with a panel of four neurosurgeons from which to choose a treating physician. If Harris should become dissatisfied with his treating physician, Harris would, upon notifying Keystone Foods of his dissatisfaction, be entitled to select a physician from a panel of four physician selected by Keystone Foods at that point. § 25-5-77(a).
Keystone Foods also argues that the trial court erred by awarding benefits retroactive to the date of the accident rather than retroactive to the date of notice. In Ex parte Murray, 490 So.2d 1230, 1232-33 (Ala.1984), our supreme court stated that, if there is no good reason for the employee's failure to notify the employer of an injury within 5 days, but the employer receives notice within 90 days of the injury, then the employee forfeits benefits accrued up to the date of notice. Harris concedes that the trial court should have awarded benefits commencing with the date of notice instead of the date of the accident. Therefore, we reverse that part of the trial court's judgment awarding benefits from the date of the accident rather than from the date of notice.
We reverse the trial court's judgment insofar as it (1) ordered Keystone Foods to provide Harris with a panel of four neurosurgeons from which to choose a treating physician and (2) awarded benefits from the date of the accident rather than from the date of notice, and we remand the case. In all other respects, we affirm the trial court's judgment.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.