REL: 03/09/2007 EX PARTE PUBLIX SUPER MARKETS, INC.
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2006-2007
Ex parte Publix Super Markets, Inc.
PETITION FOR WRIT OF MANDAMUS
Publix Super Markets, Inc.)
(Jefferson Circuit Court, CV-06-2525)
defendant in a pending action brought by Frances Lukich ("the
employee") pursuant to the Alabama Workers' Compensation Act,
§ 25-5-1 et seq., Ala. Code 1975 ("the Act"), petitions for a
writ of mandamus directing the Jefferson Circuit Court to
herein, we grant the petition and issue the writ.
On August 24, 2005, the employee visited the Brookwood
Medical Center due to back pain.
She told the attending
physician, Dr. Leah Daggett, that she had picked up a box of
bottled water while at work three and one-half weeks earlier
and had noticed pain immediately radiating around her lower
another hospital where a CT angiogram of her chest reportedly
showed scarring of her lungs with no pulmonary embolism.
had also visited a Dr. Morgan on August 22, 2005, and he had
thoracic spine, prompting him to order an MRI scan of her
On August 23, 2005, after falling to her knees without
any obvious injury, the employee had reported to the Brookwood
Medical Center emergency room.
Various medications had not
affected her severe back pain.
tenderness over the thoracic spine at the T9-T10 level.
doctor diagnosed thoracic pain with abnormal bone scan, which
employee may have osteoporosis or a pathological process of
the spine as well.
The doctor admitted the employee to the
ordered an MRI of the thoracic spine.
On August 31, 2005, Specialty Risk Services, LLC ("SRS"),
the third-party workers' compensation administrator for the
employer, wrote the employee a letter stating, in pertinent
"Dear Ms. Lukich:
"I hope this letter finds you doing well.
office has received notice of ... your ... claim.
The claim that was submitted by your employer,
Publix is under investigation.
"Please give me a call at your earliest convenience.
"Please sign and return the medical authorization
that has been mailed to you, please include a list
of all medical providers including addresses with
whom you have had medical treatment within the past
Once we have this, we will order your
medical records & evaluate your claim.
"Once a decision is reached on your claim, you will
addressed to "To Whom It May Concern" in which she stated:
"Frances Lukich was admitted to my care on August
24, 2005 with a three and half-week history of
severe mid back pain, which she related to picking
up a box of bottled water while at work.
picking up the water she immediately noticed pain,
which was treated by her physician with medication
After an increase in the
severity of her pain she was seen in the Brookwood
Medical Center Emergency Room and released with a
prescription, which was ineffective in treating her
She was then admitted to Brookwood Medical
On February 15, 2006, SRS wrote Lukich another letter in
which the claims consultant wrote:
"We have received and reviewed the information
regarding the claim that was submitted by your
employer, Publix. In addition, we have reviewed the
medical records obtained from several medical
In reviewing this information, we are
not able to confirm that an injury occurred within
your employment at Publix nor that your condition is
information available, we are not able to accept
this claim as compensable under the Alabama Workers'
Compensation [Act]. Therefore, I must respectfully
deny this claim."
Apparently unable to resolve the dispute, the employee
filed a verified complaint in the Jefferson Circuit Court on
April 27, 2006.
In that complaint, the employee alleged that
in early August 2005, "while working in the line and scope of
her employment, [the employee] injured her back while lifting
a case of bottled water."
The employee further alleged that
she had properly notified the employer of the accident and
that she had become permanently and totally disabled because
of the injuries she had sustained.
The employee specifically
averred that she had obtained medical treatment, including
surgery, and that she continued to require medical treatment
The employee asserted that she had
notified SRS "to determine if her injury was covered under
worker's compensation" but that SRS had denied her claim on
February 15, 2006, despite having Dr. Daggett's report and
employer, seeking, among other things, "medical expenses and
benefits to which [the employee] is entitled to under the
workers' compensation law under the State of Alabama."
employee attached to her complaint the medical records and
letters referenced above.
On June 2, 2006, the employer filed an answer to the
complaint, denying all its material allegations and demanding
strict proof thereof.
basically restated the allegations contained in her complaint
and requested that the court enter an order compelling the
employer to provide her with medical and surgical treatment
pursuant to the Act.
The employer filed a response to the
motion on August 18, 2006, in which it asserted that the
motion should be denied because (1) the parties were in the
midst of discovery and, therefore, the issue whether medical
employee had not offered the court any evidence indicating
that she had sustained a covered injury.
The trial court conducted a hearing on the motion to
compel medical treatment on August 21, 2006.
At that hearing,
neither party introduced any evidence or called any witnesses;
instead the parties relied on the pleadings submitted to the
court and the arguments of counsel.
On September 15, 2006,
the trial court entered an order granting the motion to compel
petition for a writ of mandamus to this court on October 27,
2006, requesting that this court vacate the order granting the
motion to compel.
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 Service 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 Fort James Operating Co., 905 So. 2d 836, 842 (Ala.
Civ. App. 2004) (quoting Ex parte Wilson, 854 So. 2d 1106,
1108-09 (Ala. 2002), quoting in turn Ex parte Fire & Marine
Ins. Co., 720 So. 2d 893, 894 (Ala. 1998)).
Section 12-3-10, Ala. Code 1975, vests this court with
workers' compensation actions.
See Ex parte Alabama Power
Co., 863 So. 2d 1099 (Ala. Civ. App. 2003).
The employer has
petition for a writ of mandamus within a reasonable time
following the entry of the order of which it complains.
Rule 21(a)(3), Ala. R. App. P. (requiring the filing of a
petition for the writ of mandamus within a reasonable time and
presumptively reasonable time).
This court has exercised its jurisdiction to issue writs
of mandamus in workers' compensation actions mainly in cases
in which the trial court has entered an order wholly without
statutory authority or in direct contravention of the language
of the Act.
See, e.g., Ex parte Brookwood Med. Ctr., Inc.,
895 So. 2d 1000 (Ala. Civ. App. 2004).
We recognize that an
action brought under the workers' compensation laws is purely
statutory in nature.
Fort James Operating Co. v. Irby, 911
Reynolds Metals Co., 344 So. 2d 1216, 1217 (Ala. 1977)).
Act is a specific and comprehensive system of law for dealing
with workplace injuries and "'creates rights ... remedies ...
and procedures all [its] own.'"
Davis v. Fayette County
Comm'n, 831 So. 2d 50, 53 (Ala. Civ. App. 2002) (quoting Riley
v. Perkins, 282 Ala. 629, 632, 213 So. 2d 796, 798 (1968)).
available to the affected parties must be found within the
provisions of the Act.
See Hedgemon v. United Parcel Serv.,
Inc., 832 So. 2d 656 (Ala. Civ. App. 2002).
Thus, in a
workers' compensation action, when a trial court exercises
power not explicitly granted by the Act or necessarily implied
by its terms, this court will issue a writ of mandamus to
correct that error.
See Ex parte Brookwood Med. Ctr., Inc.,
supra; Ex parte Alabama Power Co., supra; Ex parte Wal-Mart
Smitherman Bros. Trucking, Inc., 751 So. 2d 1232 (Ala. 1999).
Section 25-5-77(a), Ala. Code 1975, provides that
"the employer, where applicable, ... shall pay an
amount not to exceed the prevailing rate or maximum
schedule of fees as established herein of reasonably
attention ... as the result of an accident arising
out of and in the course of the employment, as may
be obtained by the injured employee ...."
Standing alone, this subsection mandates that employers shall
limitations, for the medical and surgical treatment obtained
by an employee due to injuries received in an accident arising
out of and in the course of the employee's employment.
e.g., Gold Kist, Inc. v. Couch, 671 So. 2d 695 (Ala. Civ. App.
By implication, an employer would not be financially
responsible for medical and surgical treatment obtained by an
employee for conditions unrelated to an accident arising out
of and in the course of the employee's employment.
Boyd v. M. Kimerling & Sons, Inc., 628 So. 2d 711 (Ala. 1993).
In case of a dispute as to the necessity of medical or
surgical treatment, § 25-5-77(a), Ala. Code 1975, provides
The power of the trial court to determine the
necessary due to injuries arising out of and in the course of
Section 25-5-77 does not address the procedure to decide
a dispute over the necessity of medical benefits.
5-88, Ala. Code 1975, however, states that either party to a
controversy brought under the article of the Act providing for
medical benefits may file a verified complaint in the circuit
court that would have jurisdiction of an action between the
same parties arising in tort; once the opposing party has been
properly served, "said action shall proceed in accordance with
and shall be governed by the same rules and statutes as govern
civil actions, except as otherwise provided in this article
actions filed hereunder shall be preferred actions and shall
be set down and tried as expeditiously as possible."
section further provides: "At the hearing ... the court shall
hear such witnesses as may be presented by each party, and in
employer's obligation to pay for medical or surgical treatment
arising under the Act, is governed by the Alabama Rules of
Civil Procedure, unless the Act provides some other procedure.
See, e.g., Ex parte Vance, 900 So. 2d 394, 398 n.7 (Ala.
2004); and Shop-A-Snak Food Mart, Inc. v. Penhale, 693 So. 2d
employee has not directed our attention to, any part of the
Act that authorizes a circuit court with jurisdiction over a
controversy regarding the necessity of medical benefits to
decide, on a motion of the employee filed before a trial and
a determination on the merits, that the employer is compelled
to provide medical or surgical treatment to the employee.
Likewise, our research has not revealed, and the employee has
not cited, any cases interpreting the Act as authorizing such
Hence, we turn to the Alabama Rules of Civil
The only reference to a "motion to compel" in the Alabama
Rules of Civil Procedure can be found in Rule 37, Ala. R. Civ.
That rule authorizes a court in a civil action to enter an
order compelling discovery under certain conditions.
Nevertheless, it is the substance, not the title, of a motion
that determines its character.
293 (Ala. Civ. App. 1991).
Moore v. Graham, 590 So. 2d
In this case, the employee filed
employer to pay medical benefits pursuant to the Act.
motion may only be construed as a motion for a judgment on the
merits that the employee was entitled to such benefits.
The Alabama Rules of Civil Procedure recognize two forms
of pretrial motions for a judgment.
Rule 12(c), Ala. R. Civ.
P., authorizes a party to file a motion for a judgment on the
A trial court may enter a judgment on such a
motion when the allegations in the complaint and the averments
in the answer show that no genuine issue of material fact
exists and that the movant is entitled to a judgment as a
matter of law. Universal Underwriters Ins. Co. v. Thompson,
authorizes a party to file a motion for a summary judgment.
A trial court may enter a judgment on such a motion when the
pleadings and other evidentiary material show that there is no
genuine issue of material fact and that the moving party is
entitled to a judgment as a matter of law.
Ala. R. Civ. P.
Our review of the record leads us to conclude that the
trial court did not rely on either of those rules.
court could not have construed the motion to compel as being
a motion for a judgment on the pleadings because the pleadings
parties concerning whether the medical and surgical treatment
obtained by the employee was necessitated by injuries arising
out of and in the course of her employment.
In the complaint,
the employee alleged that she had injured her back at work
while picking up a box of bottled water and that she had
obtained medical and surgical treatment for that injury.
sustained any work-related injury.
The employer also denied
that the employee required medical and surgical treatment
because of her alleged work-related injuries.
Even if the trial court considered the materials attached
to the complaint, see Thompson, 776 So. 2d at 83 (noting that
in some instances a trial court may consider material attached
to a complaint when ruling on a motion for a judgment on the
pleadings without converting the motion into one for a summary
controversy between the parties.
The medical records and the
Daggett that she had noticed pain in her mid-back region after
picking up a box of bottled water at some workplace and that
the doctor believed the pain could be from any number of
from SRS indicate that the employer
disputed the employee's claim that she had hurt herself while
disputed that the employee's back condition resulted from her
alleged workplace accident.
Likewise, the trial court obviously did not treat the
motion as a motion for a summary judgment.
Rule 56 states
that a motion for a summary judgment "shall be supported by a
undisputed material facts."
Rule 56(c)(1), Ala. R. Civ. P.
Northwest Florida Truss, Inc. v. Baldwin County Comm'n, 782
So. 2d 274 (Ala. 2000) (a motion for a summary judgment that
did not include a narrative summary of undisputed material
facts could not be considered).
The rule further provides
that any hearing on a summary-judgment motion generally must
take place 10 days after service of the motion and supporting
material on the opposing party. Rule 56(c)(2), Ala. R. Civ. P.
In this case, the trial court conducted a hearing on the
Even if these procedural oversights could be excused, the
trial court would have had to deny any motion for a summary
substantial evidence establishing a prima facie case that no
genuine issue of material fact existed.
See Infinity Ins. Co.
v. Gibson, 765 So. 2d 3 (Ala. Civ. App. 1999) (movant has
burden of proving prima facie case showing that no genuine
presented evidence indicating that she told her doctor that
attributed her pain to several possible sources; and that the
employer's workers' compensation adjuster disputed that any
injury had occurred at the employer's work site or that such
employer did not admit in the August 31, 2005, letter that the
acknowledged that the employee had filed a claim for workers'
employee obtained and sought in the future was necessitated by
workplace accident, and it did not shift the
genuine issue of material fact.
As stated by the employer in its briefs, it appears that
the trial court deviated from the procedure established in the
Act and the Alabama Rules of Civil Procedure by deciding a
disputed issue of coverage based on a motion filed by the
encourages employers to provide medical benefits voluntarily,
see Rule 409, Ala. R. Evid., nothing in the law requires
employers to furnish medical benefits to an employee based on
treatment because of a work-related injury.
bears the burden of proving each and every fact prerequisite
to a recovery of medical expenses, including the essential
threshold fact that he or she sustained a work-related injury
that necessitated the medical or surgical treatment obtained.
circuit courts to expedite the trial and determination of
endorsed any procedure that would abrogate the employee's
burden of proof for the sake of expediency.
Because neither the language of the Act nor the Alabama
Rules of Civil Procedure authorize the procedure used by the
trial court to decide the employer's obligation to provide
medical benefits to the employee, we grant the petition for a
writ of mandamus.
We hereby order the trial court to vacate
its September 15, 2006, order granting the employee's "Motion
to Compel Medical Treatment."
PETITION GRANTED; WRIT ISSUED.
Pittman, Bryan, and Thomas, JJ., concur.
Thompson, P.J., concurs in the result, with writing.
THOMPSON, Presiding Judge, concurring in the result.
Initially, I note that a petition for a writ of mandamus
is the appropriate method of review in this action.
of Legend, Inc. v. O'Neal, 855 So. 2d 536 (Ala. Civ. App.
treatment was not sufficiently final to support an appeal.
See also Sign Plex v. Tholl, 863 So. 2d 1113 (Ala. Civ. App.
2003) (order determining whether injury was compensable was
not sufficiently final to support an appeal).
court's September 15, 2006, order, because it required Publix
addressed in the September 15, 2006, order, and, therefore,
that order was not a final judgment capable of supporting an
Accordingly, the appropriate method for reviewing the
trial court's September 15, 2006, order is pursuant to a
petition for a writ of mandamus.
See Ex parte Brookwood Med.
Ctr., Inc., 895 So. 2d 1000 (Ala. Civ. App. 2004) (reviewing
a nonfinal order in a workers' compensation action pursuant to
Amerigas, 855 So. 2d 544, 546 (Ala. Civ. App. 2003) ("Review
another adequate remedy, such as an appeal.").
In its petition for a writ of mandamus, Publix argues,
among other things, that the trial court erred in requiring it
to provide medical treatment in the absence of any evidence to
support a finding that the employee's injury was compensable.
The Workers' Compensation Act, § 25-5-1 et seq., Ala. Code
1975 ("the Act"), provides for disputes over medical expenses
to be resolved in the trial court.
§ 25-5-77(a), Ala. Code
1975 ("All cases of dispute as to the necessity and value of
A dispute over liability for medical payments necessarily
implicates the issue of compensability of the injury.
evidentiary hearing to resolve a dispute over compensability
and the payment of medical benefits is anticipated in § 25-577(a). 1
Further, in order to establish that he is entitled
Review may also be had, under certain circumstances,
pursuant to the Ombudsman Program set forth in Article 11 of
to medical treatment for an injury under the Act, an employee
must establish that his or her
injury is compensable under
"[F]or an injury to be compensable under the
establish both legal and medical causation. Once
legal causation has been established, i.e., once it
has been established that an accident arose out of
and in the course of employment, medical causation
must be established, i.e., that the accident caused
the injury for which recovery is sought."
Ex parte Moncrief, 627 So. 2d 385, 388 (Ala. 1993) (citation
I conclude that the trial court erred by requiring Publix
to pay for the employee's medical treatment in the absence of
any evidence pertaining to the issue of the compensability of
the employee's injury.
Accordingly, I concur in the result.
the Act, §§ 25-5-290 through -294, Ala. Code 1975.
25-5-77(i), Ala. Code 1975.