Ex parte Sears Roebuck and Co.
Sears Roebuck and Co. In re: Jeffrey Donaldson
Jefferson Circuit Court, CV-17-472
PETITION FOR WRIT OF MANDAMUS
THOMPSON, PRESIDING JUDGE.
workers' compensation action, Sears Roebuck and Co.
("Sears") petitions this court for a writ of
mandamus directing the Jefferson Circuit Court ("the
trial court") to vacate its order compelling Sears to
approve certain medical treatment for its former employee
Jeffrey Donaldson. The medical treatment at issue had been
prescribed by Donaldson's authorized treating physician.
However, Sears argued, to the trial court that it disputed
whether Donaldson's injuries were compensable under the
Alabama Workers' Compensation Act, § 25-5-1 et seq.,
Ala. Code 1975. Accordingly, Sears said, the trial court
could not properly order it to provide the medical treatment
at issue without first holding an evidentiary hearing in
accordance with Ex parte Publix Super Markets, Inc.,
963 So.2d 654 (Ala. Civ. App. 2007).
materials submitted to this court in support of Sears's
petition for the writ of mandamus indicate the following. On
August 16, 2017, Donaldson filed a complaint against Sears in
the Bessemer division of the trial court. In his complaint,
Donaldson alleged that, on or about January 19, 2016, he
injured his back while repairing an air-ventilation unit
during the course of his employment with Sears. As a result
of his injuries, Donaldson sought temporary and permanent
disability benefits, vocational benefits, medical benefits,
and reimbursement for medical expenses related to the alleged
September 19, 2017, Sears moved to dismiss the action or to
transfer it to the Birmingham division of the trial court on
the ground that the injury occurred within the geographical
limits of the Birmingham division. On December 11, 2017, the
motion to transfer was granted, and the action was
transferred to the Birmingham division.
January 19, 2018, Donaldson filed a motion to compel Sears to
provide medical treatment recommended by his authorized
treating physician, Dr. Resit Cezaryirli. In the motion,
Donaldson stated that Dr. Cezaryirli had performed spinal
surgery on him in November 2016. Donaldson said that he had
continued to suffer "severe radiating pain and
numbness" in his lower back and lower extremities, so,
in December 2017, Dr. Cezaryirli had prescribed further
diagnostic testing and an "LSO brace" to relieve
Donaldson's symptoms. No exhibits were attached to the
motion to compel. On February 5, 2018, the trial court set a
hearing on Donaldson's motion to compel for February 26,
2018. On February 21, 2018, Sears answered Donaldson's
complaint. In its answer, Sears acknowledged that it had
provided workers' compensation benefits to Donaldson
after he made his claim. However, Sears continued, those
"benefits were provided in compliance with Alabama Code
§ 25-5-56, and [were] not to be construed as an
admission of liability as said benefits were provided
'without prejudice.'" Sears further denied the
compensability of Donaldson's injury. As defenses, among
others, Sears denied that Donaldson had sustained a
compensable injury that arose out of and occurred during the
course of his employment and asserted that, to the extent
Donaldson was disabled, that disability was caused by a
preexisting or subsequent injury or condition for which Sears
was not responsible.
February 23, 2018, Sears filed an opposition to
Donaldson's motion to compel arguing, among other things,
that, because compensability was disputed, the trial court
was required to hold an evidentiary hearing on the issue of
compensability as required by Ex parte Publix,
supra, before it could order Sears to provide the treatment
Dr. Cezaryirli was recommending. Sears also pointed out that
there were other issues to be considered, such as a possible
preexisting disability and lack of causation, that had to be
determined before it could be ordered to pay the expenses
Donaldson was requesting. In opposing the motion to compel,
Sears pointed out that it was entitled to 60 days in which to
conduct discovery on the issue of compensability. Therefore,
Sears suggested that the trial court set a compensability
hearing for no sooner than 60 days later, "at which time
the parties will present evidence regarding the
compensability of [Donaldson's] claim."
hearing arguments of the parties on February 26, 2018, as
scheduled, but without receiving any evidence at that
hearing, the trial court granted the motion to compel on
March 5, 2018, and ordered Sears to approve the treatment
that Dr. Cezaryirli had recommended. On April 3, 2018, Sears
filed in this court a presumptively timely petition for a
writ of mandamus. See Rule 21(a)(3), Ala. R. App. P.
"'"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)."
parte Sunbelt Transp., Inc., 23 So.3d 1138, 1140 (Ala.
Civ. App. 2009).
issue Sears presents in its petition has been decided in
previous opinions issued by this court, and the applicable
law is now well settled. In Ex parte Steve Cagle
Trucking Co., 989 So.2d 560, 564 (Ala. Civ.
App. 2008), this court held that a trial court erred in
failing to hold an evidentiary hearing on the issue of
compensability before ordering the employer to pay for
medical treatment for the alleged injury. This court wrote:
"'An evidentiary hearing to resolve a dispute over
compensability and the payment of medical benefits is
anticipated in § 25-5-77(a) [, Ala. Code 1975].'
Ex parte Publix [Super Markets, Inc.], 963 So.2d
 at 662 [(Ala. Civ. App. 2007)] (Thompson, P.J.,
concurring in the result). Like the trial court in Ex
parte Publix, the trial court in this case, on
Cagle's motion, compelled SCT to pay for Cagle's
medical treatment before a trial determining whether Cagle
suffers from a compensable injury. However, the [Workers'
Compensation] Act does not authorize the trial court to
compel payment for medical treatment in this ...