Ex parte Advantage Resourcing, Inc. PETITION FOR WRIT OF MANDAMUS (In re: Hennon Hollinghead v. Willstaff, Inc., et al.)
Annotate this Case
Download PDF
Rel: 04/20/2012 Notice: T h i s o p i n i o n i s s u b j e c t t o f o r m a l r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , A l a b a m a A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2011-2012 2100716 Ex p a r t e A d v a n t a g e R e s o u r c i n g , I n c . PETITION FOR WRIT OF MANDAMUS (In re: Hennon H o l l i n g h e a d v. W i l l s t a f f , Inc., e t a l . ) ( M o b i l e C i r c u i t C o u r t , CV-10-310) PITTMAN, Judge. Advantage Resourcing, entity formerly known I n c . ("the e m p l o y e r " ) , as "Willstaff a corporate Worldwide Temporary 2100716 Services, Inc.," C i r c u i t Court, and seeks 1 entered review on M a r c h 2 2 , ("the Compensation Act"), directed to the Act, Hennon employer s u r g i c a l procedure. order the Mobile t h a t awarded 2011, Ala. to permit trial medical J a n u a r y 21, deemed compensable be sustained while i n order working hours, pain spine. to had symptoms The employee complaint in employer under amend h i s the the his trial Act, complaint seq. employee") and to undergo the in the because work that employee's area of filed seeking e m p l o y e e was assert a separate was motor before development his a cervical single-count benefits the later from the permitted third-party tort c l a i m a g a i n s t D & E C o n s t r u c t i o n , L.L.C., the e n t i t y t h a t , employee the a l l e g e d , had walkway that the n e g l i g e n t l y caused debris employee when was using by court i t day a based from h i s parked of to court to et injury suffered Act walking originally but 25-5-1 employee the place neck had Alabama which i n j u r y the t r i a l under contributed his § ("the the 2010, enter in 1975, the c o u r t awarded t h a t r e l i e f t h e e m p l o y e e was vehicle of under that a s l i p - a n d - f a l l t h e e m p l o y e e on to Code Hollinghead The upon i t s d e t e r m i n a t i o n to an temporary-total-disability benefits Workers' of of to he the remain fell; on that The defendant business e n t i t y named i n t h e original c o m p l a i n t i n t h i s c a s e was " W i l l s t a f f , I n c . , " a name t h a t was c l a i m e d b y d e f e n s e c o u n s e l t o be a m i s i d e n t i f i c a t i o n . 1 2 2100716 c l a i m remains pending i n the t r i a l of the employee's from entitlement, the employer under The employer, appeal and seeking review i n i t s brief n o t mandamus Belcher-Robinson 76 ( A l a . C i v . App. 2010), rendered a review." However, N a r r against separate trial order See 136, that see Rule effect order we 138-39 upon mechanism f o r 42 S o . 3 d 7 7 4 , 7 7 5 ¬ court defendant, benefits i n court has to appellate not separate i n this claims case. against Because the a l l claims as t o a l l A l a . R. C i v . P., t h e M a r c h 2 2 , 2 0 1 1 , judgment Coatings, i n this that would support I n c . v. L o l l e y , Nevertheless, case the p a r t i e s ' (Ala. awards i n v o l v e d only a s i n g l e c l a i m under the 54(b), reviewed ... the t r i a l i s susceptible d i d not adjudicate f o r review that noting our h o l d i n g "when a t r i a l compensability, ( A l a . C i v . App. 2003). legal the order i s not a f i n a l presented order, d e f e n d a n t s as a r e p r e s e n t Edmonds I n d u s . 1122 court's that judgment a single court's parties, appropriate asserts and t e m p o r a r y - t o t a l - d i s a b i l i t y to determining Act court, F o u n d r y , LLC v. N a r r , addition final to this i s the of the t r i a l benefits i f any, t o f u r t h e r b e n e f i t s theA c t . in medical court, along with the issue rights i n Ex p a r t e C i v . App. 3 closely and appeal. 863 S o . 2 d 1 1 2 1 , because the order parallels, in i t s responsibilities, Cowabunga, 2011), an I n c . , 67 S o . 3 d i n which we treated an 2100716 a p p e a l as a p e t i t i o n the employer's f o ra writ appeal i n this mandamus d i r e c t e d t o t h e t r i a l March o f mandamus, we w i l l case as seeking consider a writ of court to set aside i t s order of 22, 2011. "The s t a n d a r d o f a p p e l l a t e r e v i e w i n w o r k e r s ' compensation cases i s governed by § 25-5-81(e), A l a . Code 1 9 7 5 , w h i c h p r o v i d e s t h a t , ' [ i ] n r e v i e w i n g p u r e findings of fact, the f i n d i n g of the c i r c u i t court s h a l l n o t be r e v e r s e d i f t h a t f i n d i n g i s s u p p o r t e d by s u b s t a n t i a l e v i d e n c e . ' 'Substantial evidence' i s '"evidence of such weight and quality that fair-minded persons i n the exercise of impartial judgment can r e a s o n a b l y i n f e r the e x i s t e n c e of the fact sought t o be p r o v e d . " ' Ex p a r t e Trinity Indus., I n c . , 680 S o . 2 d 2 6 2 , 2 68 ( A l a . 1 996) ( q u o t i n g West v. F o u n d e r s L i f e A s s u r a n c e C o . , 547 So. 2 d 8 7 0 , 871 ( A l a . 1 9 8 9 ) ) . "When e v i d e n c e i s p r e s e n t e d o r e t e n u s , i t i s t h e duty of the t r i a l c o u r t , which had the o p p o r t u n i t y to observe t h e w i t n e s s e s and t h e i r demeanors, and not the appellate court, t o make credibility d e t e r m i n a t i o n s and t o weigh t h e e v i d e n c e p r e s e n t e d . B l a c k m a n v . G r a y R i d e r T r u c k L i n e s , I n c . , 716 S o . 2 d 698 , 700 ( A l a . C i v . A p p . 1998 ) . The r o l e o f t h e appellate court i s not to reweigh the evidence but to a f f i r m the judgment of the t r i a l c o u r t i f i t s f i n d i n g s a r e r e a s o n a b l y s u p p o r t e d by t h e e v i d e n c e and t h e c o r r e c t l e g a l c o n c l u s i o n s have been drawn therefrom. E x p a r t e T r i n i t y I n d u s . , 680 S o . 2 d a t 2 68-6 9; F r y f o g l e v . S p r i n g h i l l Mem'l H o s p . , I n c . , 742 S o . 2 d 1 2 5 5 ( A l a . C i v . A p p . 1998 ) , a f f ' d , 742 So. 2 d 1258 ( A l a . 1 9 9 9 ) . The ' a p p e l l a t e c o u r t m u s t v i e w t h e f a c t s i n t h e l i g h t most f a v o r a b l e t o t h e findings of the t r i a l court.' Ex p a r t e P r o f e s s i o n a l Bus. Owners A s s ' n W o r k e r s ' Comp. F u n d , 867 S o . 2 d 1099, 1102 ( A l a . 2 0 0 3 ) . " Ex p a r t e H a y e s , petition 70 S o . 3 d 1 2 1 1 , 1 2 1 5 ( A l a . 2 0 1 1 ) . f o r the writ o f mandamus 4 Although a n d n o t an a p p e a l a i s the 2100716 proper mechanism t h e M a r c h 22, § 2011, 25-5-81(e) Prattville, by which the order, the standard nonetheless 56 employer So. applies. 3d 684, substantial-evidence 691 may See an of review "[F]or an injury Compensation Act, medical 1993). trial court's to the causation." (Ala. to provide The be employer be Inc. r e s o l v e d by v. Andrews, principle standard The Although of Power So. law that set e m p l o y e e was the as to as 3d court," 726, 732 directly forth 72 employee's employee Associates trial review of blacksmith, the the 21 findings treatment). by years legal and 385, 388 the So. 2d causation prongs. i s a q u e s t i o n of Francis Powell implicates the the the date experience a welder, and, i n h i s youth, had recently worked 2009), in of h i s included as a dump-truck 5 driver; Hayes. injury. labor as a as a rodeo rider, for Ronnie Davis ("RDA"), a c o n s t r u c t i o n c o n t r a c t o r f o r t h e Company, a deferential supreme c o u r t o l d on fact Enters., ( A l a . C i v . App. work more Workers' challenges 627 both the both proceeding " W h e t h e r t h e e m p l o y m e n t c a u s e d an i n j u r y to (applying under Moncrief, determinations of compensation a c t i o n medical in this City factual to compensable parte in 2010) employee must e s t a b l i s h Ex of parte ( A l a . C i v . App. standard employer Ex review set f o r t h of review made i n n o n f i n a l o r d e r e n t e r e d i n w o r k e r s ' compelling obtain however, Alabama upon his 2100716 having was reached t h e age o f 70, t h e e m p l o y e e " t o o o l d t o b e c a r r i e d o n " RDA's p a y r o l l that he w o u l d company such have to obtain as t h e e m p l o y e r w o r k he h a d p r e v i o u s l y b e e n On the date of the employment i n order was t o l d t h a t he and i n s u r a n c e and through a to continue staffing doing the doing. employee's injury, the employee r e p o r t e d t o h i s c u s t o m a r y p l a c e o f w o r k -- a " s h o p " l o c a t e d o n the premises of approximately and 5:30 he e n t e r e d nearby parking testified, the Thyssen-Krupp a.m., which "everybody" at h i s motor retrieve shop, it. the happen[ing] moving vehicle, a walkway (a w a l k w a y he behind" forward; returned testified, him; turned and s l i p p e d on h i s b a c k a n d r i g h t debilitating after arrival extending to used). pain. the injury, time, from a However, the parking he perceived to look behind on a p i e c e at t h e employee A s he a g a i n u s e d t h e w a l k w a y h e a d i n g employee -- h i s p o r t a b l e two-way r a d i o ("PVC") p i p i n g t h a t r o l l e d u n d e r n e a t h fall plant that, h i s workplace because t h e employee had l e f t in was h i s n o r m a l t h e shop by u s i n g l o t t o t h e shop industrial unit l o t to toward the "something him; resumed of p o l y v i n y l - c h l o r i d e his foot, causing him t o s i d e and t o immediately experience U n a b l e t o p i c k h i m s e l f up f r o m the ground t h e employee 6 immediately called f o r help 2100716 from coworkers After was subsequently t o a l o c a l h o s p i t a l f o r t r e a t m e n t and transported on examination. the the two-way r a d i o , employee left the workers' compensation insurance to be examined after being symptoms, by an the hospital, orthopedic specialist. a the After performing physical d i r e c t e d the imaging ("MRI") to Dr. William C. X-ray Dr. pain Patton, stemmed f r o m arthritis, determine magnetic-resonancethe referred the employee surgeon, for further examination, "Hoffman forearm region Dr. of vertebrae, the and to i.e., that spinal that Dr. employee's Kevin assessment Donahoe reflexes," muscles i n the revealed of i . e . , d e g e n e r a t i v e n a r r o w i n g of nerve c o n d u i t s , fluid MRI presence stenosis, of neck. Donahoe, and observed that spasticity the and the near the fifth employee c o u l d not Dr. and Patton orthopedic during his employee had fasciculation in and pressure in the sixth cervical perform a heel-to- toe walk, a c o n d i t i o n t h a t i s a l s o p o t e n t i a l l y a s s o c i a t e d 7 a foraminal a treatment; potentially indicate cord and initially c e r v i c a l v e r t e b r a l d i s k ; the accumulation an images herniated an who, Patton employee to undergo a to employee practitioner, obtaining examination, procedure employer's employee's continued b e l i e v e d t h a t the employee's neck p a i n he the c a r r i e r d i r e c t e d the employee but he industrial-medicine unable to a l l e v i a t e referred and with 2100716 spinal-cord pressure. A subsequent nerve-conduction r e v e a l e d t h e employee t o have r i g h t p r o n a t o r abnormalities nerve roots that were i n the area cervical vertebrae. undergo a attributable sixth procedure (a vertebral disks i n the c e r v i c a l alleviate pressure upon the Although the surgery, The arise roots, thereby employee the employer employer i s thus law. As placed 942 decreasing desired contends the employer i n some d o u b t i n order to cord and spinal h i s continued undergo the under correctly Patton, t h e A c t as a m a t t e r notes by d i c t a i n i t sbrief, 77 S o . 3 d 591 the p r i n c i p l e -- one i n Ex p a r t e ( A l a . 2 0 0 4 ) -- t h a t a c l a i m a n t work and t h e i n j u r y ' " able cause to trace d i dnot o f h i s employment and t h a t t h e which Byrom, under the Act, such that s e t i n motion by t h e employment, 8 injury the had been 895 S o . 2 d i n order to "'the rational the r e s u l t a n t personal of (Ala. 2011), r e c o v e r , must " ' e s t a b l i s h a d e f i n i t e c a u s a l c o n n e c t i o n the pain. recommended t h a t the employee's i n j u r y not compensable reconfirmed to remove declined to authorize i t . supreme c o u r t , i n Ex p a r t e recently the seventh to spine employee's out o f and i n t h e course injury and corpectomy) impinging nerve with Dr. Donahoe recommended t h a t t h e e m p l o y e e surgical affected t e r e s and t r i c e p s to problems of the employee's study to a between mind [ i s ] proximate a n d n o t b y some other 2100716 agency.'" Martin, v. 77 417 Roden, parte So. So. 3d 199, Ala. 606, leaves no 260 Patton effect in this Unlike however, prove the Rather, had to the being in on start automobile was the impassable remain 802, 806 that causation case issue Wooten (1954)). the Ex traditional is in full i n Ex d i d not a fall this the on an case, used PVC parte simply force in Patton, allege employer's viewed of a and premises. light most of the was used in place his the where workdays, process the of employee after employee's work. by suffered the his RDA fall proximity to pipe having and that been leading c o w o r k e r s were to at the subsequent marked That the had no walkway workers a walkway 9 The t h a t p a t h was employee's f a l l . PVC his other fact that a and of was the r e t r i e v e a two-way r a d i o , w h i c h a f t e r the employee the each to employee from pipe, i.e., a tool stemmed in close the legal in this notwithstanding case 2d room f o r d i s p u t e shop, employee that injury, which his the disputes time this at the So. and v. to the employee, i n d i c a t e s t h a t the employee, at returning that 71 Co. state. evidence fell party 611, suffered he gone t o 1981), i n j u r e d employee at that reported S l i m f o l d Mfg. ( A l a . C i v . App. 202 (quoting t e s t of employee he the favorable time the that 594-95 2d "causal-connection" and at as fall in allowed to to report a shop for at work 2100716 each day place and at reported See indeed arose Ex parte jumped out from a from employment" of for was employment); see Ala. 220, the employee and 222-23, 109 to employment'" (quoting 219, employer determination 94 at employee's (Ala. occurred after employer's items 1989) and under a work to his the Act; time, or space, and near his place of Co. 880 (1926) ("'the movement at the his parte So. 289, actual acts service'" i n the medical Moore, 215 of time, the [and] his are deemed course of & Nashville the R.R., (1922))). contests 10 function Louisville 292 v. appropriate his he company Mining incidental also have Coal Ex concerning was and employment. 595 causation discharge ... r e l a t e d and 216, he 878, premises begin 593, reasonable Benoit So. the of h i s w h i c h had legal a entering, to that his to "'naturally related' after "'naturally The of in preparation Ala. was for also 2d a time r e l a t i o n s h i p both course So. at expected retrieved personal purposes before employer's i n the enclosing lot, covered be determination fence the occurred employment injury, having opportunity 208 the o f and employee's fall reasonably court's lot after employee would S t r i c k l a n d , 553 that belt employee's furtherance trial parking tool the he the (holding had which in support fall that the causation. trial In court's Associated 2100716 Grocers Civ. of the App. South, 2007), principles of I n c . v. this law Goodwin, court governing 965 So. restated medical 2d 1102 several (Ala. pertinent c a u s a t i o n under the Act: "To e s t a b l i s h m e d i c a l c a u s a t i o n , t h e c l a i m a n t m u s t show t h a t t h e a c c i d e n t was, i n f a c t , a c o n t r i b u t i n g cause of the employee's [injury]. It is not n e c e s s a r y t h a t t h e e m p l o y m e n t - r e l a t e d i n j u r y be t h e s o l e cause, or the dominant cause, of the [injury], s o l o n g a s i t was a c o n t r i b u t i n g cause. I f the employee s u f f e r s from a l a t e n t p r e e x i s t i n g c o n d i t i o n t h a t i n e v i t a b l y w i l l produce i n j u r y or death, but t h e e m p l o y m e n t a c t s on t h e p r e e x i s t i n g c o n d i t i o n t o h a s t e n t h e a p p e a r a n c e o f symptoms o r a c c e l e r a t e i t s injurious consequences, the employment will be considered the medical cause of the resulting injury." 965 So. 2d at testimony, 1110 such (citations as that of the considered along with medical of c a u s a t i o n because effect context of the whole of witness's a l l the use [causation] 3d of test 767, "'[i]t of finds 779 the l a y and any omitted). employee i s i n the evidence, expert magical overall is to or 2d 1060, At t r i a l , the employee t e s t i f i e d Ex ( q u o t i n g Ex full in the that phrases, i t s application.'" ( A l a . 2008) not be and i n the and lay proof substance when v i e w e d words So. and here, evidence, So. pain i n his right regard, t e s t i m o n y as a m o u n t i n g t o 47 1063 In t h i s the parte Mclnish, parte Price, 555 (Ala. 1989)). t h a t he knee, r i g h t h i p , r i g h t neck a f t e r having f a l l e n on J a n u a r y 11 had experienced shoulder, lower 21, 2010, and back, that his 2100716 continued, constant pain symptoms i n h i s neck made h i m u n a b l e t o r e s u m e w o r k i n g a f t e r w a r d s . the issue of preexisting testified that problems" and t h a t problem before he had a tending from The employee's and When deposition that were employer he c o u l d current complaints of admitted asked "form Dr. some s o r t certainty ... t h a t a n d symptoms a r e , i n f a c t , January 21, 2010, a c c i d e n t , f o r [the employee's] me," i . e . , the workplace fall, make [one's] neck worse w i t h evidence recovered two into was that the evidence. Donahoe at h i s of opinion to a [the employee's] the result of" Dr. Donahoe r e p l i e d injury of t o examine t h e he that "the described "a m e c h a n i s m that a p r e - e x i s t i n g bad neck 12 was and Dr. Donahoe) by t h e employer Petersen) he collision. (Dr. Patton degree of medical mechanism personnel d i d not e l i c i t depositions certain the collision the f o r the whether i n that retained (Dr. Bendt counsel of "neck f o r a neck to medical physicians treating of a physician employee experienced t h e employee had not f u l l y suffered transcripts employee A l t h o u g h t h e employee d i d admit the employer to indicate that the a physician motor-vehicle neck p a i n , any i n j u r i e s seen t h a t he h a d r e p o r t e d 2002 With respect to conditions, previously the accident. November experiencing never he h a d n e v e r on c r o s s - e x a m i n a t i o n after neck and back had to would ... t o a 2100716 degree of Donahoe medical flatly employee's opined, neck] employer's the certainty"; necessity "yeah, worse" objection, of on and that the I think the further the fall surgery" [the over the least contributed had recommended t h e e m p l o y e e w o u l d h a v e "a m o r e s u b s t a n t i a l i m p a c t although he whether were than a to Dr. Dr. suffered that to testified at his his opinion as question fall medical f a c t s from "at least posed the a by thirty the the to" fall were fall, he for or Finally, on direct employee had that the forty," fall. the that regarding deposition employee's p r i o r contributed or opinion counsel question as admitted the in employee hypothesized work h i s t o r y , employee's not a that post-fall problems. T h u s , we conclude suffered degenerative trial evidence, that a r e s u l t of cross-examination, number of the by i t was such a f t e r the to injury a problems of] contributed Petersen a new response or neck [man fall Donahoe's employee's examination the old caused although during year deferred the not a the s u f f e r e d by seventy-two that for to Dr. a testified made opined, "at he fall Dr. employee. on Patton cross-examination, court as that, stenosis could i t did, although that 13 employee had i n h i s neck b e f o r e properly that the conclude c o n d i t i o n had from the indeed injury, substantial remained latent 2100716 until the employee's workplace injury acted to d e b i l i t a t i n g neck p a i n n e c e s s i t a t i n g the s u r g i c a l p r e s c r i b e d by c o u r t , was by the Dr. Donahoe. The trial cause intervention c o u r t , r a t h e r than e n t i t l e d under the Act to weigh the testimony employee and the treating the and examining this given physicians a g a i n s t t h e m e d i c a l r e c o r d s s u b m i t t e d by t h e e m p l o y e r by the e m p l o y e r had sought as of to the onset to impeach the employee's his neck symptoms. o f t h e t e s t i m o n y o f l a y and m e d i c a l w i t n e s s e s i n t h i s not rise medical For simply to the most 1116 parte totality in a light 2d i n Ex Energy viewed So. credibility Southern case, Homes, I n c . , 873 Unlike which ( A l a . 2003), f a v o r a b l e to the level of a mere employee, the does "possibility" of c o u r t ' s March 22, causation. the foregoing reasons, 2011, order i s not issue a writ o f mandamus i n t h i s PETITION due to be the trial d i s t u r b e d , and we decline to case. DENIED. Thompson, P . J . , concurs. Bryan, and without Thomas, Moore, writings. 14 J J . , concur in the result,
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
