On Application for Rehearing
THOMPSON, Presiding Judge.
The memorandum affirmance of October 25, 2013, is withdrawn, and the following is substituted therefor.
On June 5, 2012, Richard Purser filed in the Jefferson Circuit Court ("the trial court") an action seeking workers' compensation benefits from his employer, Winn-Dixie Montgomery, LLC ("Winn-Dixie"), for an injury he claimed he suffered during the course of his employment. Winn-Dixie answered and denied liability.
In October 2012, Purser filed a motion seeking a hearing on the issue of the compensability of his claimed injury. In that motion, Purser alleged that Winn-Dixie had refused to pay him temporary-disability benefits and had refused to pay his medical expenses. The trial court granted that motion and scheduled a hearing for December 13, 2012.
The trial court conducted an ore tenus hearing on December 13, 2012, at which, according to the trial court's order, Purser testified. In addition, during that ore tenus hearing, the trial court admitted a number of exhibits into evidence. The transcript of the December 13, 2012, hearing is not contained in the record on appeal.
On January 10, 2013, the trial court entered an order in which it found, among other things, that Purser's injury arose out of and in the course of his employment, that Winn-Dixie was responsible for the payment of reasonable and necessary medical treatment for Purser's injury, and that Purser was entitled to temporary-total-disability benefits. See Belcher-Robinson Foundry, LLC v. Narr, 42 So.3d 774, 776 (Ala.Civ.App.2010) (holding that there existed a final judgment when the trial court's order determined "that the employee's accident arose out of and in the course of his employment, that the employer was responsible for the employee's medical treatment, and that the employer was responsible for payment of temporary-total-disability benefits"). Winn-Dixie filed a postjudgment motion that was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. Winn-Dixie timely appealed.
The record on appeal contains no transcript of the ore tenus hearing. Winn-Dixie has represented to this court that the ore tenus hearing was not transcribed. Neither party has submitted a Rule 10(d), Ala. R.App. P., statement of the evidence to this court. See Rule 10(d), Ala. R.App. P. ("If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection.").
Kimbrough v. Kimbrough, 963 So.2d 662, 665-66 (Ala.Civ.App.2007).
In this case, the trial court received ore tenus evidence that is not contained in the record on appeal. Accordingly, this court must assume that the evidence that is not contained in the record on appeal is sufficient to support the trial court's order. Elliott v. Bud's Truck & Auto Repair, 656 So.2d 837, 838 (Ala.Civ.App.1995) ("Where the trial court hears oral testimony, and that testimony is not in the record on appeal, either in a transcript or summarized in a Rule 10(d) statement, it is conclusively presumed that the testimony is sufficient to support affirmance."). Thus, because of the lack of a transcript of the ore tenus hearing before the trial court, this court is unable to determine whether the multiple arguments Winn-Dixie asserts on appeal concerning the admissibility of certain evidence were presented to the trial court and, if so, whether Winn-Dixie timely objected to the admission of that evidence. Ex parte Coulliette, 857 So.2d 793, 794-95 (Ala.2003) (explaining the necessity of a timely objection to put the trial court on notice of any error to be corrected); Elliott v. Bud's Truck & Auto Repair, 656 So.2d at 838 ("Th[ese] issue[s], and others, simply cannot be addressed by this court, because of the inadequacy of the record.").
In Kimbrough v. Kimbrough, supra, because of the inadequacy of the record, this court rejected an argument asserted by the father in that case that he was denied his right to counsel. This court concluded that it was "unable to determine from the limited record before us whether the father requested appointed counsel or whether the father proved that he was indigent. We cannot assume that the trial court erred when error is not apparent from the record." 963 So.2d at 666.
As in Kimbrough, this court is unable to determine in this case whether Winn-Dixie
Out of an abundance of caution, we note that we have considered whether some of the arguments Winn-Dixie has asserted on appeal could be said to be legal arguments, therefore making the absence of a transcript of the hearing below immaterial.
We also note that Winn-Dixie advocates for a more definitive calculation of benefits in the trial court's order. It cites only § 25-5-88 and Weaver v. Pilgrim's Pride Corp., 106 So.3d at 419-20, for the proposition that a trial court must make "findings of fact and state conclusions of law that are responsive to the issues presented at trial." (Emphasis added.) In making this part of its argument, Winn-Dixie asserts only that a "proper" order would calculate the specific amount of temporary-disability benefits due Purser. It does not, however, assert that a determination of the specific amount of temporary-disability benefits would be "responsive" to the issues presented to the trial court; in other words, Winn-Dixie does not contend, in either its brief on original submission or its brief on application for rehearing, that the parties asked the trial court to determine the specific amount of temporary-disability benefits
Further, Winn-Dixie, although expressing a disinclination to perform those calculations itself, does not argue that, based on any conflicting or omissive findings, it is unable to determine the amount of compensation due to Purser. Indeed, Winn-Dixie is in the same position it would have been in had it not rejected Purser's workers' compensation claim and had instead elected, in the absence of a court order, to pay him temporary-total-disability benefits pending the resolution of his workers' compensation claim. In other words, the payment of temporary-total-disability benefits under the January 10, 2013, order poses no challenges different from those encountered by an employer when it pays such benefits without being compelled to do so by a trial court. Accordingly, given the arguments asserted by Winn-Dixie in its briefs submitted to this court and the record it supplied this court on appeal, we cannot say that Winn-Dixie has demonstrated error with regard to this issue.
Winn-Dixie also contends in its original brief submitted to this court, without citing to any supporting authority, that the trial court erred in finding that the medical charges submitted to it were reasonable and necessary, but also reserving to Winn-Dixie the right to challenge, pursuant to § 25-5-77(a), the cost of any charges by the medical providers. Section § 25-5-77(a) limits Winn-Dixie's payment for reasonably necessary medical treatment to "an amount not to exceed the prevailing rate or maximum schedule of fees." Winn-Dixie contends that Purser was required to demonstrate that each charge was within that limitation. As this court has already held, Winn-Dixie has failed to demonstrate that the evidence presented to the trial court did not support its factual determinations, such as that the medical charges were reasonable and necessary and due to be paid under § 25-5-77(a). Any reservation of an additional right to Winn-Dixie to question the amount of those charges is harmless error. Rule 45, Ala. R.App. P. In its brief "argument" on this issue, Winn-Dixie has failed to show error.
Winn-Dixie asserts in its brief on application for rehearing that "[t]he parties agreed to and filed a Joint Stipulation of the evidence considered by the trial court.[
APPLICATION GRANTED; MEMORANDUM AFFIRMANCE OF OCTOBER 25, 2013, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.
PITTMAN, THOMAS, and DONALDSON, JJ., concur.
MOORE, J., concurs in the rationale in part and concurs in the result, with writing.
MOORE, Judge, concurring in the rationale in part and concurring in the result.
On original submission, I believed that the fact that the record omits a transcript of the trial proceedings occurring on December 13, 2012, precluded our review of the issues raised by Winn-Dixie Montgomery, LLC ("the employer"). Upon further consideration, I am no longer completely convinced of my original conclusion, because I believe some of the issues are reviewable.
Originally, the Alabama Workmen's Compensation Act ("the original Act") allowed only for certiorari review. See Ala. Acts 1919, Act. No. 45, § 21. Certiorari review allowed only for review of legal errors apparent on the face of the record made by the trial court. See Moses v. Pitney Bowes, Inc., 368 So.2d 545, 546 (Ala.1979) (Jones, J., concurring specially). To facilitate certiorari review, the original Act required the trial court to make a written determination containing findings of fact and conclusions of law. See Greek v. Sloss-Sheffield Steel & Iron Co., 207 Ala. 219, 220, 92 So. 458, 459 (1922). On certiorari review, the appellate court could merely review the judgment to ascertain the facts as found by the trial court and the manner in which the trial court applied the law to those facts. Id. An appellate court could accept transcripts of the evidence, but only for the purpose of deciding whether any evidence supported the findings of fact of the trial court, itself a question of law. 207 Ala. at 221, 92 So. at 460.
Today, the Alabama Workers' Compensation Act ("the Act"), Ala.Code 1975,
Under current law, when a party fails to order the transcript, or to substitute a statement of the evidence under Rule 10(d), Ala. R.App. P., this court must presume that the evidence is sufficient to sustain the findings of fact made by the trial court. See Tinney & Assocs., Inc. v. Parham, 588 So.2d 490, 491 (Ala.Civ.App. 1991). The only issue remaining would be, as under certiorari review, whether the trial court correctly applied the law to the facts as found. See Pow v. Southern Constr. Co., 235 Ala. 580, 583, 180 So. 288, 290 (1938).
In this case, the Jefferson Circuit Court ("the trial court") conducted a hearing to determine whether Richard Purser ("the employee") had sustained an injury to his left knee caused by an accident arising out of and in the course of his employment with the employer and whether the employer was liable for certain medical benefits and temporary-total-disability benefits for that injury. See Ex parte Publix Super Markets, Inc., 963 So.2d 654 (Ala.Civ. App.2007). Following that hearing, the trial court entered a judgment containing findings of fact and conclusions of law. The employer transmitted the clerk's record to this court, which contains the judgment; thus, this court has a limited record to review on appeal.
In its findings of facts, the trial court sets out that only one witness testified at the hearing — the employee. Summarizing the testimony of the employee, the trial court states that the employee began working for the employer in 2007 or 2008 as a stocker, but was soon transferred to working as a "bagger," which job is described in an exhibit that is also part of the appellate record. The employee had no physical limitations in regard to his left leg and could fully perform the duties of his job. According to the judgment, the employee testified that, on April 6, 2012, he was at work when his manager requested that the employee assist a coworker with assembling a barbecue grill for display. The two employees sat down in an aisle assembling the grill. After finishing assembling the leg portion of the grill, and in the act of standing up, the employee heard his left leg or knee pop and felt sudden and immediate pain. Over the next several days, his left-knee condition worsened, and, on April 10, 2012, he informed his manager that he needed to see a doctor. The manager agreed but told the employee to use his own health insurance because he did not believe that workers' compensation would cover the claim.
The trial court found that the employee visited Brookwood Hospital that day, reporting his symptoms and how they began. The employer reported the claim to its workers' compensation insurance carrier, who directed the employee to see a doctor at St. Vincent's Occupational Health, who,
Following the denial of the claim, the employee sought the care of Dr. Perry Savage, who performed arthroscopic surgery on the employee's left knee on May 15, 2012. The employee was off work from April 30, 2012, to July 19, 2012, after which he returned to work on a reduced schedule. According to the judgment, the employee testified to continuing pain, disruption of sleep, and a tendency of his left knee to give out.
Presuming, as we must, that the missing transcript contains testimony fully supporting the foregoing findings of fact, this court must determine whether the trial court correctly applied the law to those facts. Pow, supra. This court reviews questions of law de novo, without a presumption of correctness. See Ala.Code 1975, § 25-5-81(e)(1).
The preliminary question for our review is whether the employer proved legal causation. For an injury to be compensable, it must be caused by an accident arising out of and in the course of the employment. See Ala.Code 1975, § 25-5-51. The phrase "arising out of" refers to a causal connection between the injury and the employment. Ex parte Patton, 77 So.3d 591, 593 (Ala.2011). It is not enough that an accidental injury occur in the course of the employment; rather, the employment must be the source and cause of the accident. Slimfold Mfg. Co. v. Martin, 417 So.2d 199, 202 (Ala.Civ.App.1981), writ quashed, 417 So.2d 203 (Ala.1982). To prove legal causation, the employee must prove more than that the injury would not have happened "but for" the employment. Ex parte Patton, 77 So.3d at 595. In other words, the mere fact that the employment placed the employee at the time and place where the injury occurred does not mean that the employment legally caused the accident. See id. "`The rational mind must be able to trace the resultant personal injury to a proximate cause set in motion by the employment, and not by some other agency.'" Garrett v. Gadsden Cooperage Co., 209 Ala. 223, 225, 96 So. 188, 190 (1923) (quoting In re Madden, 222 Mass. 487, 495, 111 N.E. 379, 383 (1916)). An employee must prove that the performance of the employment duties exposed him or her to a danger or risk of injury materially in excess of that to which people are normally exposed in merely living. Ex parte Trinity Indus., Inc., 680 So.2d 262, 267 (Ala.1996).
In this case, the trial court found that the employee injured his knee when, while rising from the floor where his job duties required him to be, the employee's knee "popped." Thus, the duties of the job, and not some other factor, "set in motion" the proximate cause of the injury. The employer notes that, in the act of standing up, the employee was not lifting, pushing, or pulling anything and, further, that he did not slip, fall, or strike anything and nothing
On that point, the employer argues that the employee failed to prove medical causation because, it says, the only evidence supporting the theory that the employee aggravated his left-knee condition consists solely of the testimony of the employee, which, it asserts, is not alone sufficient to prove medical causation under Ex parte Southern Energy Homes, Inc., 873 So.2d 1116 (Ala.2003). Assuming that that case remains good law, see SouthernCare, Inc. v. Cowart, 146 So.3d 1051, 1060 (Ala.Civ. App.2013) (Moore, J., concurring in part and concurring in the result in part), Ex parte Southern Energy Homes does not stand for the broad proposition that an employee's subjective testimony will never be sufficient to prove medical causation. Rather, our supreme court seemed to hold in that case that an employee's testimony alone will not be sufficient if all the other evidence in the case casts serious doubt upon the employee's version of events and the employee's testimony is not corroborated by the circumstances following an alleged accident. See Bruno v. Harbert Int'l, Inc., 593 So.2d 357, 360-61 (La.1992) (collecting Louisiana cases applying similar rationale).
In this case, unlike in Ex parte Southern Energy Homes, according to the findings of the trial court, the employee immediately notified the employer of his accident and consistently reported to his treating physicians
The employer next argues that the trial court erred in awarding the employee medical benefits. The employer first maintains that the medical records, including those relating to the medical charges, were not admissible because, it says, they amount to hearsay and were not properly authenticated in accordance with Ala.Code 1975, § 25-5-81(f)(4). Before the trial date, the employer filed two motions in limine raising the foregoing objections; however, the record contains no order indicating that the trial court took any pretrial action on those motions. Therefore, in order to preserve its objections, the employer had to renew the motions during the trial. See Owens-Corning Fiberglass Corp. v. James, 646 So.2d 669, 673 (Ala. 1994) (explaining the necessity of renewing during trial a motion in limine that has either not been ruled on or has been denied, unless the trial court has expressly stated that no renewal of the motion in limine is required). Because we have no transcript of the trial, we do not have any record that the employer renewed its objections or that the trial court made an adverse ruling against the employer from which an appeal would lie. See Williams v. Seamon, 532 So.2d 1028, 1029 (Ala.Civ. App.1988) ("In the absence of an adverse ruling by the trial court, evidentiary issues will not be considered upon appeal.").
The employer secondly argues that the employee did not prove that the medical treatment for which he sought payment
The employer thirdly maintains that, because it did not authorize the treatment provided, it bears no liability for the charges. Generally speaking, an employer must pre-authorize nonemergency medical treatment in order for that treatment to be covered at the employer's expense. See United States v. Bear Bros., Inc., 355 So.2d 1133, 1137 (Ala.Civ.App.1978). However, when an employer refuses to provide care or when a request for care would be futile, the employee may obtain medical treatment for the work-related injury at the expense of the employer without its authorization. See, e.g., Lipscomb v. City of Gadsden, 794 So.2d 395, 397 (Ala.Civ.App.2000). The trial court found that the employee originally had visited the employer's authorized treating providers but that the employer's workers' compensation insurance carrier denied the employee's claim on April 30, 2012, based on Dr. Weaver's opinion that the employee's knee problem was not work related. It is clear that the employer would no longer provide authorized treatment after that date, and it would have been futile for the employee to request it. Hence, as the trial court concluded, the lack of authorization did not relieve the employer of liability for the charges. The employer maintains that the employee had to first seek a panel of four physicians before seeking his own treatment; however, besides generally citing Ala.Code 1975, § 25-5-77, the employer has not cited any legal authority to support that position, and, thus, we may not consider that argument. See Rule 28(a)(10), Ala. R.App. P.; Maxim Healthcare Servs., Inc. v. Freeman, 93 So.3d 974, 982 (Ala.Civ.App.2012).
As its last point on this issue, the employer argues that the employee failed to prove that the amount of the bills fell within the limitations established in the Act. The employer contends that the employee
Finally, the employer asserts that the trial court erred in its award of temporary-total-disability benefits to the employee. The record discloses that, on October 23, 2012, the employee filed a "motion for compensability hearing" in which the employee, among other things, informed the trial court that he had not received any temporary-total-disability benefits for his recovery period after his May 15, 2012, surgery. The employee requested that the trial court conduct a hearing to decide the compensability of his injury "and order such relief as [the employee] may be entitled under the Act." The trial court granted that motion on November 1, 2012. In its final judgment, the trial court awarded the employee temporary-total-disability benefits "at the appropriate compensation rate subject to the maximum and minimums of § 25-5-68, [Ala.Code 1975,] for time he was off work under the care of treating physician Dr. Savage during recovery process." Those findings imply that the trial court determined that the employee was temporarily totally disabled while healing from his surgery, which finding presumably was supported by the employee's
In its judgment, the trial court found that the employee was "off work under the Doctor's care from on or about April 30, 2012, until his release by Dr. Savage on July 19, 2012." That finding established that the recovery process lasted for 10 weeks and 4 days, or 10.57 weeks. The employee also conceded in his response to the postjudgment motion that the employer had established his average weekly earnings as being $230.02 through one of its exhibits. Section 25-5-57(a)(1), Ala. Code 1975, establishes that the compensation rate shall be 662/3 percent of the average weekly earnings, which, in this case, would be $153.35. Section 25-5-57(a)(1) further provides that the minimums set out in § 25-5-68 apply when calculating the temporary-total-disability rate. Section 25-5-68(a) provides that the compensation rate shall not be less than 27½ percent of the state's average weekly wage, which, on the date of the employee's injury was $755.46, making the employee's minimum weekly compensation rate $208.00.
In the past, a majority of this court has determined that a judgment in a workers' compensation case that fails to specify the dollar amount of compensation awarded is not sufficiently final for appellate review. See, e.g., Coosa Valley Health Care v. Johnson, 961 So.2d 903 (Ala.Civ.App.2007); Norment Sec. Grp. v. Chaney, 938 So.2d 424 (Ala.Civ.App.2006); Homes of Legend, Inc. v. O'Neal, 855 So.2d 536 (Ala.Civ.App. 2003); and International Paper Co. v. Dempsey, 844 So.2d 1236 (Ala.Civ.App. 2002). However, in Equity Group-Alabama Division v. Harris, 55 So.3d 299, 303 (Ala.Civ.App.2010), this court determined that a judgment is final when it awards temporary-total-disability benefits "at the compensation rate" without calculating the exact amount due. Because the judgment in this case contains similar language, and because this court can ascertain from the record the undisputed amount awarded, I believe that the judgment is final under Harris and is sufficient for the purposes of § 25-5-88.
Alternatively, the record does not contain any indication that, before or during the trial, the parties disputed the amount of temporary-total-disability benefits due or that the parties submitted that controversy to the trial court. The employee did make a general plea for an award of temporary-total-disability benefits in his "motion for compensability hearing"; however, both parties filed pretrial briefs, and neither mentioned any controversy regarding
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