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REL: 09/14/2007

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ALABAMA COURT OF CIVIL APPEALS
SPECIAL TERM, 2007 _________________________ 2060436 _________________________ Dorothy Louise Wright v. Hatley Health Care, Inc. Appeal from Chilton Circuit Court (CV-05-72) MOORE, Judge. Dorothy Louise Wright ("the employee") appeals from a judgment entered on partial findings in her action to recover

2060436 workers' compensation benefits from Hatley Health Care, Inc. ("the employer"). We affirm. Facts On March 13, 2003, the employee was working for the employer as a licensed practical nurse. While the employee

was attempting to move a heavy patient off a bed, the bed shifted and struck the employee in the abdomen, forcing her backwards into a wall in a twisting motion. The employee

testified that, immediately after the accident, she had felt pain in her stomach, shoulder, neck, head, and mid to upper back and that she had reported the pain to her supervisor. The employee also testified that she had additionally

complained of pain in her chest area at the time she reported her injury. The employee denied receiving any injury to her

lower back as a result of the accident. The employee asked to go to a hospital on the date of her accident, but, according to the employee, the employer only authorized her to go to another medical facility. The

employee testified that she did not go to the other medical facility because she had no one to drive her.

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2060436 Three or four days after the accident, the employee visited Dr. Jay Patel, who prescribed medication and

restricted the employee to light-duty work.

On April 21,

2003, a supervisor and the employer's safety director assigned the employee to light-duty work per a printed form. The

employee signed the form under protest, indicating that she did not believe the job outlined in the form constituted light duty. Dr. Patel reviewed the job description on the form and, on April 22, 2003, indicated that the employee could perform the duties outlined in the form. However, he stated that if

the employee experienced further problems, he would refer her to an orthopedic surgeon for an evaluation. The employee left the employment of the employer in May 2003 and has not worked or applied for work since. Around

September 2003, Dr. Patel referred the employee to Dr. Robert G. Sorrell, an orthopedist, who prescribed medication and physical therapy. The employee testified that Dr. Sorrell did not treat the parts of her body that she had injured in the accident but, instead, concentrated on her lower back. Dr.

Sorrell ordered an MRI of the employee's lower back, which he interpreted as being normal. Dr. Sorrell documented that the

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2060436 employee disagreed with his interpretation because, she

asserted, she had had a previous lower back MRI that had shown degenerative changes. Dr. Sorrell determined that the employee had reached maximum medical improvement ("MMI") on January 22, 2004, and he released the employee to return to work full duty with a 0% impairment rating. The employee testified that Dr. Sorrell's

determination of MMI had related solely to her lower back, which, she alleged, she had not injured in the accident. The

employee testified that she had continued to suffer pain in the various parts of her body that she had originally injured in the accident and that she had reported the pain to Dr. Sorrell. The employee testified that Dr. Sorrell had told her he could not help her, so she had asked for another doctor. The employee next visited Dr. Hester, whom the employee described as a shoulder doctor. The employee testified that

because her shoulders were not her main problem, Dr. Hester had referred her to Dr. Michael Davis, an orthopedic surgeon, who had treated her upper-back, neck, and shoulder areas. Dr. Davis ordered an MRI of the employee's neck, which the

employee understood revealed a reversal in the curvature of

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2060436 her spine. The employee testified that she believed this

spinal condition was causing muscle spasms and pain in her chest and back area. After seeing Dr. Davis, the employee visited Dr. Ronald Moon for pain management. Dr. Moon treated the employee with In

injections in her back and neck, medication, and therapy.

November 2004, the employee underwent a functional-capacity evaluation ("FCE") that indicated that the employee could perform work to in the the light-to-medium category the of labor. had

According

evaluation,

although

employee

exhibited a lack of maximum effort during the testing, she had demonstrated the ability to bend, stand, reach, squat, crouch, climb stairs, crawl, and rotate while working. Dr. Moon

concurred with Dr. Sorrell that the employee had reached MMI on January 22, 2004, and that she had no permanent medical impairment. The employee was treated by Dr. Moon until

January 2006, when she was discharged. The employee testified at the December 14, 2006, trial, that, although none of her authorized treating physicians had examined her stomach, she had undergone a stomach procedure in November 2006 that was performed by an unauthorized medical

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2060436 provider. According to the employee, the procedure had

revealed ulcers and other deformities in her stomach that the employee attributed to the use of Celebrex, a medication that Dr. Moon had prescribed for her at some point during her treatment. The employee testified at trial that she had given

maximum effort during her FCE and that she could not perform the activities set out in the FCE report on a continuous basis. The employee testified that the restrictions noted in

the FCE report prevented her from performing the normal duties of her job as a licensed practical nurse. The employee

testified that she has not worked because of constant pain, her use of "a lot of medications,"1 headaches, and pain and problems with her stomach, chest, neck, and shoulders, none of which, the employee claims, existed before the accident. The

employee testified that she could "possibly" perform a job in which she alternated sitting and standing but that she had not

The employee testified that she was currently taking Darvocet, Skelaxin, Vicofin, Lexapro, and Keflex on a daily basis. Her authorized physicians prescribed the first three medications for pain and muscle spasms.
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2060436 returned to work because none of her physicians had clarified the type of jobs she could perform. At the conclusion of the employee's direct testimony, the trial court admitted as exhibits the curriculum vitae of Dr. Sorrell, the medical records of Dr. Sorrell, and the medical records of Dr. Moon. At the conclusion of all the employee's

testimony, the trial court also admitted the depositions of Dr. Sorrell and Dr. Moon. Just after the trial court admitted those depositions, the employee's attorney requested leave to take another deposition relating to the employee's stomach problems. After the employer's counsel objected, the trial The following colloquy then took

court denied the motion. place:

"BY THE COURT: Could I have a motion from the defense? "BY [EMPLOYEE'S COUNSEL]: Well, Your Honor, if I could -"BY THE COURT: Have you got any more evidence? "BY [EMPLOYEE'S COUNSEL]: Well, we just want to point out certain things about the evidence, but I believe I can do so after he makes his motion. "BY THE COURT: No. You better do it before, because I'm fixing to consider a motion to dismiss the case.

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2060436 "BY [EMPLOYEE'S COUNSEL]: I was going to include that in my response to his motion to dismiss. "BY [EMPLOYER'S COUNSEL]: Your Honor, defense asks for a motion to dismiss." Although counsel for the employer moved for a dismissal, we treat the employer's motion as one seeking a judgment on partial findings. See Rule 52(c), Ala. R. Civ. P. In

response to the employer's motion, the employee's counsel argued that Dr. Sorrell had not treated the employee for the injuries caused by the accident and that Dr. Sorrell had testified in deposition that if the employee had injured her upper back, he would have preferred to have had an MRI on her upper back before placing her at MMI and releasing her to return to work full duty. The employee's counsel also argued

that Dr. Moon's records indicated that the employee had actually reached MMI in September 2004, not on January 22, 2004. The employee's counsel further argued that the doctors

had agreed that the employee could not return to work full duty, but could only work within the restrictions noted in the FCE report. The employee's counsel asked the court to

consider that evidence before ruling on the employer's motion.

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2060436 The trial court, which had the employee's medical records before it, pointed out that the employee had undergone MRIs of the upper back and neck, the latter of which had shown a mild reversal of the cervical spine indicative of a muscle spasm. The trial court considered those records to contradict the argument of employee's counsel that Dr. Sorrell had not ordered an MRI of the employee's upper back before assigning no impairment and releasing the employee to return to fullduty work. The trial court then pointed out that Dr. Sorrell

had, indeed, released the employee to return to full-duty work in contradiction of the employee's argument that she had not been released to return to work full duty. The trial court

then asked if the employee had any evidence to support her position on those points. place: "[BY EMPLOYEE'S COUNSEL]: Yes, I believe we do, Your Honor. "BY THE COURT: Well, show it to me right now, and let me see it. If it says something different than what these doctors say -"[BY EMPLOYEE'S COUNSEL]: Okay, if I may, Your Honor -"BY THE COURT: They say two different things. The following colloquy then took

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2060436 "[BY EMPLOYEE'S COUNSEL]: He says

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