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Ex parte Fairhope Health & Rehab, LLC

Alabama Court of Civil Appeals

February 27, 2015

Ex parte Fairhope Health & Rehab, LLC In re: Lula Durgin
Fairhope Health & Rehab, LLC

PETITION FOR WRIT OF MANDAMUS Baldwin Circuit Court, CV-13-901187

THOMPSON, Presiding Judge.

Fairhope Health & Rehab, LLC ("FHR"), purports to appeal from an order of the Baldwin Circuit Court ("the trial court") finding that Lula Durgin, its employee, had sustained an injury to her right knee for which she was entitled to receive workers' compensation benefits. In its order, the trial court directed FHR to pay for, among other things, the medical treatment required to replace Durgin's right knee.

The record indicates the following. Durgin worked as the activities director of a nursing home operated by FHR for eight years. Taking residents of the nursing home on outings so they could participate in various activities outside the FHR facility was among her duties as activities director. On Friday, February 10, 2012, Durgin said, she was preparing for an outing to take the residents shopping and had loaded the residents' wheelchairs into the FHR van. As she attempted to climb into the driver's seat of the van, Durgin said, she twisted her right knee and immediately felt pain. Durgin testified that she had to call to a coworker to help her maneuver out from under the steering wheel, where she had become stuck. Durgin said that her right knee hurt, but she continued with the outing. She did not seek medical attention that day.

When she returned to work on Monday, Durgin said, her knee was swelling "pretty good, " so she made a visit to the company doctor. The company doctor treated Durgin and ultimately referred her to Dr. Cesar M. Roca, Jr., an orthopedist. Dr. Roca first saw Durgin on April 2, 2012. Dr. Roca testified by deposition that he had diagnosed Durgin with a torn medial meniscus, or torn cartilage, in her right knee. In fact, Dr. Roca said, Durgin's meniscus was "shredded." He also found that she had preexisting arthritis in her right knee. The evidence is undisputed that Durgin's right knee had preexisting degenerative damage before the February 2012 incident. Dr. Roca looked at an MRI of Durgin's right knee taken in late 2007, and, he said, Durgin had a "terrible-looking knee" then and a "terrible-looking knee in 2012."[1]Dr. Roca said that, during her initial visit with him, Durgin told him that she had had some previous discomfort in her right knee, but not to the extent she had after the February 10, 2012, incident.

Dr. Roca explained that it was difficult to determine how much of Durgin's meniscal tearing was preexisting and how much had been caused by the twisting injury. He said:

"I can guarantee you had a great deal of some shredding pre-existing and some of the few fibers that were–-that were not symptomatic, that finished damaging when she had the twisting injury, so–-so in reality, the–-the condition of her knee was a combination of the preexisting degenerative change plus some acute exacerbation by the twisting injury."

When asked if he could state within a reasonable degree of medical certainty whether the twisting injury that occurred on February 10, 2012, aggravated, accelerated, or incited Durgin's knee condition to make it become symptomatic, Dr. Roca responded "yes."

On May 25, 2012, Dr. Roca operated on Durgin's right knee to remove the meniscal tear. He concluded that, by June 29, 2012, six weeks after the surgery, Durgin had reached maximum medical improvement ("MMI") for the work-related injury, i.e., the injury she received on February 10, 2012. Dr. Roca explained that, as of late June 2012, Durgin was still feeling discomfort in her right knee because of the arthritis she had in that knee, but, he said, she had reached a plateau for the twisting injury. Explicitly excluding the preexisting arthritis, Dr. Roca said, he assigned Durgin an impairment rating of 4% to the whole person and 10% to the "lower extremity" as a result of the February 10, 2012, work-related injury. He also said that Durgin's impairment rating would be higher if he considered the arthritis along with the twisting injury. He released her to return to work with no restrictions.

Nonetheless, Durgin continued to have pain in her right knee. Dr. Roca said that he saw her again in September 2012, when Durgin complained of right-knee pain. He said that Durgin told him that her right knee would "give out, " causing her to fall. Dr. Roca testified that the falls Durgin experienced after he operated on her medial meniscus "ha[d] nothing to do with her work related injury." He referred Durgin to his colleague, Dr. Roger Setzler, who is an orthopedic surgeon. Durgin's medical records indicate that she saw Dr. Setzler on October 1, 2012. At that time, Dr. Setzler diagnosed Durgin with "severe degenerative joint disease" in her right knee. Dr. Setzler recommended that Durgin have her right knee replaced. Dr. Roca said that a knee replacement would not be related "in any way to the [February 10, 2012, ] accident." Instead, he said, the knee replacement would be necessitated because of Durgin's chronic arthritic condition, that is, the preexisting degeneration of her right knee. Dr. Roca said that the twisting injury caused "an acute exacerbation" of Durgin's right-knee condition; however, he said, as a result of the surgery he performed on that knee, "we got her back to better than she was before the [work-related] accident."

On August 20, 2014, after holding an ore tenus hearing and reviewing the documentary evidence the parties' submitted, the trial court entered an order in which it found that Durgin had sustained a work-related injury to her right knee. It ordered FHR to provide medical care and treatment to Durgin for her right-knee injury, "including, but not limited to, the prescribed right knee replacement." The trial court also stated that it would set the matter for a final hearing to determine the disability benefits to which Durgin is entitled, "whether temporary total or permanent, after [Durgin] has reached maximum medical improvement" from her knee-replacement surgery. On September 25, 2014, FHR filed its notice of appeal in this case.

As a preliminary matter, Durgin asserts that, because the trial court has not yet determined the type or amount of disability benefits to which she is entitled, the order is not final for purposes of appeal.

"'"It is a well established rule that, with limited exceptions, an appeal will lie only from a final judgment which determines the issues before the court and ascertains and declares the rights of the parties involved."' Owens v. Owens, 739 So.2d 511, 513 (Ala. Civ. App. 1999), quoting Taylor v. Taylor, 398 So.2d 267, 269 (Ala. 1981). This court has stated:
"'A final judgment is one that completely adjudicates all matters in controversy between all the parties.
"Eubanks v. McCollum, 828 So.2d 935, 937 (Ala. Civ. App. 2002) (citations omitted)."

Adams v. NaphCare, Inc., 869 So.2d 1179, 1181 (Ala. Civ. App. 2003). Because the order in this case does not determine the type or amount, if any, of disability benefits Durgin may recover in this case, the August 20, 2014, order does not completely adjudicate Durgin's claims against FHR. Therefore, our initial inquiry must be to determine whether the order from which FHR "appeals" is a final judgment capable of supporting an appeal.

"[A] mere compensability determination that awards no relief, other than directing an employer to allow medical treatment, is not a 'final judgment' that is subject to appellate review, but is instead reviewable by an appellate court only by a petition for a writ of mandamus. See SouthernCare, Inc. v. Cowart, 48 So.3d 632 (Ala. Civ. App. 2009). However, as Fluor Enterprises[, Inc. v. Lawshe, 16 So.3d 96, 99 (Ala. Civ. App. 2009), ] indicates, the rule is now emerging that when a trial court goes further, and awards medical benefits and temporary-total-disability benefits in addition to determining compensability, the trial court has rendered a final judgment that is susceptible to appellate review. See Fluor Enterprises, 16 So.3d at 99; BE & K, Inc. v. Weaver, 743 So.2d 476, 480 (Ala. Civ. App. 1999); and Ex parte DCH Reg'l Med. Ctr., 571 So.2d 1162, 1164–65 (Ala. Civ. App. 1990)."

Belcher–Robinson Foundry, LLC v. Narr, 42 So.3d 774, 775–76 (Ala. Civ. App. 2010).

In this case, the trial court ordered FHR to pay for the "medical care and treatment of [Durgin's] right knee injury, including, but not limited to, the prescribed right knee replacement." That order is an implicit finding of compensability. However, the trial court reserved ruling on the issue of whether Durgin is entitled to receive temporary or permanent disability benefits and, if so, the amount of those benefits. Thus, FHR seeks appellate review from a nonfinal order. Because the trial court's compensability determination is reviewable by a petition for a writ of mandamus, we ...

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