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Ex parte West Fraser, Inc.

Alabama Court of Civil Appeals

September 15, 2017

Ex parte West Fraser, Inc.
v.
West Fraser, Inc. In re: Johnny Thomas

         Lee Circuit Court, CV-15-900205

          PETITION FOR WRIT OF MANDAMUS

          THOMPSON, PRESIDING JUDGE.

         West 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] injuries."

         The 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.

         In its 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 accident occurred.

         The 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.

         On June 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.

         West 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 (Ala. 1991).'"
"'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. App. 2015).

         Furthermore, 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 this ...

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