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Bailey v. Jacksonville Health & Rehabilitation Center

Alabama Court of Civil Appeals

July 21, 2017

Felisha Bailey
v.
Jacksonville Health and Rehabilitation Center

         Appeal from Calhoun Circuit Court (CV-13-900028)

          PER CURIAM

         Felisha Bailey ("the employee") was employed by Jacksonville Health and Rehabilitation Center ("the employer") as a certified nursing assistant. In January 2013, she sued the employer and Millennium Risk Managers, the employer's workers' compensation claims administrator, in the Calhoun Circuit Court ("the trial court"). In her complaint, the employee sought from the employer benefits under the Alabama Workers' Compensation Act, codified at Ala. Code 1975, § 25-5-1 et seq. ("the Act"), for her alleged contraction of scabies and her alleged resulting psychological injuries. In count two of her complaint, the employee sought damages for the tort of outrage from the employer and Millennium Risk Managers. The trial court dismissed the tort-of-outrage claim in May 2013, and the workers' compensation action proceeded solely against the employer.

         In August 2016, the employer moved for a summary judgment in its favor. In that motion, the employer argued that the employee had not contracted scabies and that she had not suffered a psychological injury compensable under the Act and that she was therefore not entitled to workers' compensation benefits. The employer's motion was supported by excerpts from the employee's deposition, excerpts from the deposition of Dr. Janet Cash, [1] and an affidavit from Dr. Glenn O. Archibald. The employee responded to the motion, filing in opposition to the motion copies of certain medical records.[2]After a hearing, the trial court entered a judgment in favor of the employer. The employee timely appealed.

         We review a summary judgment de novo; we apply the same standard as was applied in the trial court. 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 [it] is entitled to a judgment as a matter of law." Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala. 1992). If the movant meets that burden, "the burden then shifts to the nonmovant to rebut the movant's prima facie showing by 'substantial evidence.'" Lee, 592 So.2d at 1038 (footnote omitted). "[S]ubstantial 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." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989); see Ala. Code 1975, § 12-21-12(d). Furthermore, when reviewing a summary judgment, the appellate court must view all the evidence in a light most favorable to the nonmovant and must entertain all reasonable inferences from the evidence that a jury would be entitled to draw. See Nationwide Prop. & Cas. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala. 2000); and Fuqua v. Ingersoll-Rand Co., 591 So.2d 486, 487 (Ala. 1991).

         The facts contained in the exhibits supporting and opposing the motion for a summary judgment are as follows. In June 2012, the employee noticed a rash on her arms and face. The employee explained that the employer had experienced an outbreak of scabies at its facility during this time frame. The employee admitted that she could not diagnose herself with scabies because "it is not like you can just look at your skin and say 'oh, I've got scabies.'" She also testified in her deposition that she knew that she had lice in June 2012 because she could see the lice; however, she also said that the "white stuff" in her hair could have been dandruff. She reported that she had requested that the employer provide medication to treat her rash and that Bonita Golding, the director of nursing for the employer, had supplied the employee with medication.

         The employee then sought treatment from her personal physician, Dr. Johnnie Stevens, on June 25, 2012. The employee reported to Dr. Stevens that she had been exposed to scabies and lice during her employment. Medical records from Dr. Stevens indicate that he diagnosed the employee with "a rash that is erythematous urticarial." Dr. Stevens prescribed an injection of Decadron and several other medications, including Elimite, Ivermectin, Vistaril, and DexPak. The medical records indicate that Dr. Stevens instructed the employee to "follow up as needed, if not better in 3 to 4 days."

         The employee sought additional medical treatment at the Stringfellow Memorial Hospital emergency room ("the emergency room") on June 28, 2012. The record from the employee's visit on that date indicates that she was seen by Dr. Kevin Sells, to whom she reported that her place of employment had suffered an outbreak of scabies. The medical record also indicates that the employee reported that "the scabies are coming out." According to the medical record, Dr. Sells diagnosed the employee with scabies and instructed her on the treatment of scabies. Like Dr. Stevens, Dr. Sells prescribed Decadron, Vistaril, and Elimite; in addition, Dr. Sells prescribed prednisone. The employee's discharge instructions were to see Dr. Mohammad Ismail in two to three days for a "recheck."

         The employee returned to the emergency room on July 1, 2012, and was again treated by Dr. Sells. The record from the July 1, 2012, visit contains the following description of the employee's condition:

"The [employee's] rash thought to be caused by scabies. The rash is located on the body diffusely. The rash can be described as erythematous, papular, consistent with scabies infestation. ... [The employee's] husband states that 'her nerves are driving her crazy and she is driving me crazy.' [The employee] states that she continues to itch."

         The July 1, 2012, record indicates that Dr. Sells's impression was "Scabies, Anxiety Reaction." Dr. Sells administered an injection of hydroxyzine to the employee at the July 1, 2012, visit.

         The employee was examined by Dr. Michael K. Morris on July 10 and 19, 2012. Dr. Morris's notes indicate that the employee reported that she was being treated for scabies. His examination of the employee on July 10, 2012, revealed no rash on her neck, face, or hands, but he noted that examination of the employee's limbs revealed "several punctuate [sic] lesions with scabs." Upon his reexamination of the employee on July 19, 2012, Dr. Morris noted "no rash, including no punctuate [sic] lesion, scabs, or burrowing" on her limbs. Dr. Morris diagnosed the employee with a mite infestation.

         Dr. Janet Cash, a dermatologist, examined the employee on October 11, 2012. She testified in her deposition that the employee was not suffering from scabies at the time of the October 2012 appointment. Dr. Cash noted that the employee had reported that she had had scabies on her face and scalp, which, according to Dr. Cash, scabies do not inhabit. In addition, Dr. Cash said that the employee testified that she had seen the scabies "coming out, " which Dr. Cash explained was not possible because scabies are microscopic parasites. Dr. Cash also pointed out that Dr. Stevens, who saw the employee in June 2012, had diagnosed the employee with "a rash that is erythematous urticarial, " which, Dr. Cash explained, is, in common parlance, hives resulting from an allergic reaction.

         Dr. Cash further testified that, although she was aware that other physicians had diagnosed the employee with scabies, she had not seen any evidence or documentation that supported that diagnosis; notably, Dr. Cash said, other physicians had not performed objective testing to confirm the diagnosis. According to Dr. Cash, scabies cannot be diagnosed merely by examining a patient's rash. She said that other rashes have a similar appearance to that of a scabies rash. Dr. Cash explained that, to verify that a patient is suffering from scabies, a skin scraping or biopsy must be performed and the sample examined under a microscope. Dr. Cash opined that, based on her examination of the employee, the employee likely never had scabies; however, she indicated that, had the employee had scabies in June or July 2012, ...


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