Ex parte West Fraser, Inc.
West Fraser, Inc. In re: Johnny Thomas
Circuit Court, CV-15-900205
PETITION FOR WRIT OF MANDAMUS
THOMPSON, PRESIDING JUDGE.
Fraser, Inc. ("West Fraser"), petitions this court
for a writ of mandamus directing the Lee Circuit Court
("the trial court") to vacate its order of June 22,
2017, entered in an action seeking benefits under the Alabama
Workers' Compensation Act, § 25-5-1 et seq., Ala.
Code 1975. That order was entered after a hearing on the
compensability of injuries that West Fraser's employee
Johnny Thomas claims he sustained while working in the line
and scope of his employment. In that order, the trial court
found that Thomas had "not yet reached [maximum medical
improvement] and should continue to receive medical treatment
to determine the source and causation of [his]
materials submitted to this court in support of the petition
indicate the following. On April 17, 2015, Thomas filed a
complaint seeking workers' compensation benefits. In his
complaint, Thomas asserted that, on or about May 15, 2014, he
"injured his neck, back, both arms, and both legs while
trying to dislodge a large log that had become stuck in the
conveyor belt." He claimed that he suffered from a
permanent total disability as a result of his injuries.
answer, West Fraser denied that Thomas was injured in a
work-related accident on or about May 15, 2014. Throughout
this action, West Fraser has consistently denied that Thomas
was ever injured while trying to dislodge a large log. In
fact, West Fraser has asserted that it did not receive notice
of such an accident until it received a copy of the
complaint, which was filed nearly a year after the alleged
trial court held an evidentiary hearing on the issue of
compensability pursuant to Ex parte Ex parte Publix Super
Markets, Inc., 963 So.2d 654, 658 (Ala. Civ. App. 2007).
In its petition for a writ of mandamus, West Fraser contends
that, at that hearing, Thomas presented evidence indicating
that his injury or injuries were the result of cumulative
trauma. Before the hearing, West Fraser had filed a motion
in limine to prevent Thomas from presenting evidence
regarding a cumulative-trauma injury. The trial court denied
that motion, as well as West Fraser's motion for a
partial summary judgment as to a claim by Thomas of
deterioration and/or cumulative trauma.
22, 2017, after the compensability hearing, the trial court
entered an order in which it recognized that the parties
disagreed on the type of injury Thomas had sustained, as well
as "the current source of [his] medical
complaints." The trial court found that Thomas had
"not yet reached [maximum medical improvement] and
should continue to receive medical treatment to determine the
source and causation of [Thomas's] injuries." The
order did not specify which party was responsible for the
payment of that treatment. West Fraser filed its petition for
the writ of mandamus on July 21, 2017.
Fraser contends that the trial court's order fails to
comply with § 25-5-88, Ala. Code 1975. It also maintains
that the trial court abused its discretion by allowing
Thomas, during the compensability hearing, to change his
claim from one seeking benefits for an accidental injury to
one seeking benefits for a cumulative-trauma injury. Finally,
West Fraser contends that the trial court abused its
discretion by failing to dismiss Thomas's claim for an
alleged work-related accident occurring on or about May 15,
2014, because, it says, Thomas failed to provide notice of
such an accident within 90 days of its occurrence.
"'"'A writ of mandamus is an extraordinary
remedy, and it will be "issued only when there is: 1) a
clear legal right in the petitioner to the order sought; 2)
an imperative duty upon the respondent to perform,
accompanied by a refusal to do so; 3) the lack of another
adequate remedy; and 4) properly invoked jurisdiction of the
court." Ex parte United Serv. Stations, Inc.,
628 So.2d 501, 503 (Ala. 1993). A writ of mandamus will issue
only in situations where other relief is unavailable or is
inadequate, and it cannot be used as a substitute for appeal.
Ex parte Drill Parts & Serv. Co., 590 So.2d 252
"'Ex parte Wilson, 854 So.2d 1106, 1108-09
(Ala. 2002) (quoting Ex parte Empire Fire & Marine
Ins. Co., 720 So.2d 893, 894 (Ala. 1998)). Section
12-3-10, Ala. Code 1975, grants this court appellate
jurisdiction to issue extraordinary writs in workers'
compensation cases. Ex parte Alabama Power Co., 863
So.2d 1099, 1101 (Ala. Civ. App. 2003).'
"Ex parte Sunbelt Transp., Inc., 23 So.3d 1138,
1140 (Ala. Civ. App. 2009)."
Ex parte Ward Int'l, 189 So.3d 90, 92 (Ala. Civ.
in a similar case, this court wrote:
"This court has jurisdiction to review interlocutory
orders entered in workers' compensation cases when the
remedy of appeal would be inadequate. See Ex parte
Alabama Power Co., 863 So.2d 1099, 1102 (Ala. Civ. App.
2003). ... [T]he trial court ... required the employer to
immediately provide payment of medical benefits on behalf of
the employee with the employer's being subject to
sanctions for its noncompliance. The employer thereafter
obeyed the trial court's order and began paying the
employee's medical benefits, and, presumably, it
continues to do so. Awaiting review of the order by appeal
would only force the employer to incur further expenses that
it may not owe and that it may never recover from the
employee who, as evidenced by the fact that the employer is
now voluntarily paying temporary-total-disability benefits,
is currently unable to earn wages. In light of those
circumstances, we find that the employer's right to
appeal the final judgment that will ultimately be entered in