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Georgia Pacific Consumer Products LP v. Gamble

Alabama Court of Civil Appeals

February 15, 2019

Georgia Pacific Consumer Products LP
Sheryl D. Gamble

          Appeal from Choctaw Circuit Court (CV-15-900061)

          EDWARDS, JUDGE.

         In June 2014, Sheryl D. Gamble was employed by Georgia Pacific Consumer Products LP ("GP") at its plant in Pennington. On June 17, 2014, while operating a "ram truck" and performing the duties of her employment, Gamble suffered an injury to her back and neck when the truck became inoperable and ran into a guardrail. GP admits that Gamble was injured in an on-the-job accident, and it paid Gamble temporary-total-disability benefits for approximately 17 weeks. GP laid off Gamble on October 27, 2014.

         Gamble sued GP in the Choctaw Circuit Court ("the trial court") in August 2015, seeking workers' compensation benefits. After a trial, which was held on August 9, 2017, the trial court entered a detailed judgment on March 29, 2018. In that judgment, the trial court determined that Gamble was 100% permanently and totally disabled as a result of neck and lower-back injuries she sustained in the June 2014 accident while working for GP. The trial court determined that Gamble reached maximum medical improvement ("MMI") on June 9, 2017, the MMI date determined by Gamble's surgeon, Dr. Timothy Holt, and calculated benefits accordingly.[1] The trial court also taxed the costs associated with the action against GP and ordered Gamble to file a costs bill with the clerk within 45 days of the entry of the judgment.

         GP appeals the judgment, raising several issues relating to the language of the judgment and the sufficiency of the evidence. Specifically, GP contests the trial court's determination that Gamble is 100% permanently and totally disabled and contends that the trial court improperly determined the date Gamble reached MMI. GP also complains that the trial court's judgment makes it responsible for all of Gamble's medical treatment, including unauthorized treatment, and that the trial court considered evidence that was not admitted at trial. GP further challenges the trial court's award of litigation costs to Gamble because, GP contends, Gamble had not presented evidence to support the award at the time of the entry of the judgment.

         The evidence of record reveals the following. After the accident, Gamble was initially taken to the on-site medical-treatment room at GP's plant and was then sent to an urgent-care facility, where she was treated and released. When Gamble continued to complain of pain, GP sent her to Dr. Gentry Dodd, who prescribed pain medication and epidural-block injections and referred Gamble to physical therapy. When those measures did not reduce Gamble's pain, Dr. Dodd referred her to Dr. Bryan Givhan, a neurosurgeon, for assessment and possible treatment.

         Dr. Givhan first saw Gamble on November 18, 2014. According to Dr. Givhan, Gamble's reported complaints included severe neck pain, shoulder and arm pain, and numbness and tingling in her arms. Dr. Givhan performed a neurological examination, which, he testified, appeared normal and showed no signs of neural impingement that might be causing Gamble's symptoms; he noted, however, that she did have decreased range of motion in her neck. Dr. Givhan also reviewed magnetic resonance imaging ("MRI") scans of Gamble's cervical spine and lumbar spine, both of which, he testified, reflected age-appropriate degenerative changes and a small osteophyte but no bulging disks or nerve impingements. To be certain that the osteophyte was not causing any nerve compression, Dr. Givhan had Gamble undergo a myelogram, which, he testified, did not reveal any nerve impingement.

         Thus, Dr. Givhan explained, he concluded that Gamble had suffered only a musculoskeletal injury that would eventually resolve. He prescribed Gamble a non-narcotic pain reliever, a muscle relaxer, and gabapentin, which is sometimes prescribed to treat neuropathic pain. According to Dr. Givhan, Gamble reached MMI on December 23, 2014. Dr. Givhan opined that Gamble would be able to return to her former employment without restrictions. Gamble saw Dr. Givhan once more on January 29, 2015, after which he referred her to physical therapy in an attempt to assist her with her pain.

         Because she had not achieved relief from her pain, Gamble sought assistance from her personal doctor, Dr. Huey Kidd. Dr. Kidd referred Gamble to Dr. Timothy Holt, an orthopedic surgeon.[2] Dr. Holt first saw Gamble on February 12, 2015. He testified that Gamble had explained to him on her initial visit that she had suffered neck pain, arm pain, and lower back pain since her accident in June 2014. He further noted that Gamble discussed the fact that she had tried physical therapy, epidural-block injections, and both over-the-counter and prescribed pain relievers but still suffered regular pain that placed limits on her ability to sit, stand, and walk for any length of time. Dr. Holt testified that he performed a neurological examination of Gamble, which, he said, revealed that Gamble was suffering some nerve compression in her neck and lower back.

         According to Dr. Holt, he reviewed Gamble's previous MRI scans, which, he said, revealed degenerative disk disease, as would be expected in someone Gamble's age, but did not reveal any significant abnormalities. Based upon his reading of the MRI scans, Dr. Holt determined that Gamble's "worst" disk was at the C5-6 level. Dr. Holt then ordered a diskogram of Gamble's C4-5, C5-6, and C6-7 vertebrae. That test revealed that the disks at the C4-5 and the C5-6 level were compressing nerve roots and causing Gamble's neck pain. Dr. Holt then performed an anterior cervical diskectomy and fusion surgery on July 27, 2015.

         Dr. Holt testified that Gamble's post-surgery recovery had gone well. He said that his records revealed that Gamble had reported that her neck pain had improved after the surgery. However, he noted that, as a result of the diskectomy and fusion surgery, Gamble's neighboring cervical disk had been producing further symptoms, including arm pain and tingling in her hands. According to Dr. Holt, Gamble had indicated in the months following her surgery that she continued to suffer lower back pain, and he ordered an MRI. That MRI revealed a possible annular tear in the L5-S1 disk.

         Dr. Holt assigned a 12% impairment rating to Gamble for her neck injury and a 2% impairment rating for the annular tear he discovered in her lower back. He also placed permanent restrictions on Gamble, including lifting no more than 25 pounds, limiting sitting, no climbing ladders, no repetitive stair climbing, and no repetitive or frequent looking overhead. Thus, Dr. Holt said, Gamble was permanently restricted to light-duty work. Dr. Holt assigned an MMI date of June 9, 2017.

         Gamble testified at trial that she had tried to resume performing the functions of her job with GP shortly after her accident to no avail. She said that she had continued to suffer pain after the accident and that she had sought assistance from Dr. Kidd because Dr. Givhan kept "telling [her] that [she] was fine." According to Gamble, Dr. Holt's surgery had helped her, but, she testified, although she does have some good days, she has headaches nearly every day, continues to suffer from some neck pain, and also regularly suffers from back pain. She explained that, when she has a headache, she takes her prescribed medication, which puts her to sleep. Gamble said that she is unable to do the things that she used to do, like cook, perform household tasks, engage in activities with her children, and go shopping. Gamble testified that she would work if she could but that she did not think she could get up every day and work even part-time.

         Russ Gurley, a vocational consultant, testified on behalf of GP. Gurley testified that he routinely performs vocational evaluations. Those evaluations, he explained, determine the potential wage loss and the loss of job access a person suffers as the result of an injury. He testified that, in the process of performing a vocational evaluation on Gamble, he interviewed her, requesting information on her vocational history, educational background, and medical history; administered math, reading, and IQ tests; and reviewed her medical records. He said that he had also reviewed the depositions of Dr. Givhan and Dr. Holt after he concluded his report but that they were "consistent with the report."

         Gurley testified that, based on Dr. Givhan's conclusions that Gamble had suffered only musculoskeletal injuries and could return to work, he would assign Gamble a 0% vocational-disability rating. However, he said that, based on Dr. Holt's restrictions and his belief that Gamble could return to some form of work within those restrictions, he would assign Gamble a 50-55% vocational-disability rating. He explained that in his analysis he had considered Gamble's past vocational experience as a cashier and her community-college bookkeeping instruction.[3] According to Gurley, he was able to locate several jobs in the surrounding area within Gamble's restrictions, including positions as a night auditor at a hotel, as a cashier, as a teller at a bank, and as a customer-service representative. Gurley said that jobs like those he had discovered typically paid between $8 and $10 per hour.

         When cross-examined and when questioned by the trial court, Gurley admitted that he had not considered Gamble's subjective complaints of pain or whether her pain would prevent her from working. He said that, if Dr. Givhan and Dr. Holt were wrong about Gamble's ability to resume employment activities, then Gamble would be more vocationally disabled than he had previously concluded. He also testified that, if Gamble could not work because of the effects of her pain, she would be considered 100% vocationally disabled.

         Donald Blanton testified on behalf of Gamble. He testified that he is a licensed professional counselor and that he performs vocational evaluations in workers' compensation and Social Security disability matters. Blanton said that, in order to prepare his evaluation, he had interviewed Gamble, had reviewed her medical records, and had read Dr. Holt's deposition. According to Blanton, based upon "the combination of Gamble's physical problems and pain [she regularly suffered and] her lack of transferable skills," Gamble was 100% vocationally disabled.[4]

         Our review of workers' compensation judgments is well settled. "In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence." Ala. Code 1975, § 25-5-81(e)(2). Our supreme court has explained that a trial court's finding of fact is supported by substantial evidence if it is "supported by '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.'" Ex parte Trinity Indus., Inc., 680 So.2d 262, 269 (Ala. 1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989)); see also § 12-21-12(d). In completing our review, this court "will view the facts in the light most favorable to the findings of the trial court." Whitsett v. BAMSI, Inc., 652 So.2d 287, 290 (Ala. Civ. App. 1994), overruled on other grounds, Ex parte Trinity Indus., 680 So.2d at 269. Further, we review legal issues without a presumption of correctness. See Ala. Code 1975, § 25-5-81(e)(1).

         In its brief on appeal, GP's first issue statement reads: "The trial court correctly found [Gamble] totally disabled due to Dr. Holt's unauthorized and unnecessary surgery and subsequent MMI date of June 9, 2017[, ] versus her accident with GP." GP's first argument centers on one of the trial court's findings and conclusions, which reads: "As a result of her injury, [Gamble] has become permanently and totally disabled as of June 9, 2017, the Maximum Medical Improvement date assigned by Dr. Holt and stipulated to by the parties, which makes it impossible for her to return to any type of work or gainful employment." Thus, it appears that GP is contending that the trial court's conclusion that Gamble became permanently and totally disabled on June 9, 2017, when she reached MMI, is somehow a finding that Gamble's disability is not related to her June 17, 2014, accident. However, in so concluding, GP misreads the particular finding at issue, which simply states the date Gamble reached MMI and thus the date that her disability became permanent as opposed to remaining temporary. In order to receive benefits for permanent and total disability, an employee must have reached MMI. Hillery v. MacMillan Bloedel, Inc., 717 So.2d 824, 825 (Ala. Civ. App. 1998). The trial court's correlation of Dr. Holt's MMI date and the date on which Gamble became permanently and totally disabled is not erroneous and does not amount to a finding that Gamble's disability resulted from her surgery.[5]Secondly, GP argues "alternatively" that the trial court "erred to reversal in finding [Gamble] totally disabled as of June 9, 2017[, ] versus June 17, 2014." We have explained above the importance of the MMI date in the determination of permanent and total disability. GP appears to contend in this portion of its brief on appeal that the trial court "used two different dates for the start of Gamble's disability: June 17, 2014 (the actual accident date)[, ] and June 9, 2017 (the MMI date issued by Dr. Holt)," which, according to GP, requires reversal because the trial court's reliance on an allegedly incorrect date impacted the calculations of the benefits due in some unspecified way.[6] However, other than one specific typographical error in the trial court's final judgment, [7]which error can be rectified by use of Rule 60(a), Ala. R. Civ. P., if necessary, we can discern no confusion in the trial court's judgment relating to the date of the accident, to the date that Gamble became permanently and totally disabled, or in the calculation of the benefits due. Thus, GP has not presented a basis for reversal on this ground.

         GP next argues that the trial court erred in making it responsible for all of Gamble's medical treatment, including unauthorized medical treatment. The trial court's judgment acknowledges that GP paid for all authorized medical treatment. At trial, Gamble stipulated that GP was not required to pay for any medical treatment provided by Dr. Kidd and Dr. Holt, who were not authorized treating physicians. One sentence in the trial court's judgment states that "[GP] shall remain responsible for all medical treatment necessary as a result of said injury and complications pursuant to [ยง] 25-5-77 of the Code of Alabama 1975, as amended." However, nothing in the trial court's judgment indicates that GP is required to pay for any unauthorized medical treatment Gamble received. In the final section of its judgment, the trial court concludes that Gamble "is entitled to future medical benefits as provided by the Workers' Compensation Laws of the State of Alabama as existing on June 17, 2014." Thus, based on the stipulations of the parties and the entirety of the ...

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