Masterbrand Cabinets, Inc. v. Meleya Gilmore

Annotate this Case

Download PDF

REL: 06/08/2012 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 2100937 Masterbrand C a b i n e t s , Inc. v. Meleya Gilmore Appeal from T a l l a d e g a C i r c u i t (CV-07-422) THOMAS, Court Judge. Masterbrand Cabinets, I n c . ("Masterbrand"), a judgment awarding Gilmore. workers' compensation The T a l l a d e g a C i r c u i t permanently and t o t a l l y Court appeals benefits found from t o Meleya t h a t G i l m o r e was d i s a b l e d as a r e s u l t o f an i n j u r y she 2100937 suffered i n a work-related accordingly. We accident, October workers' 12, 2007, compensation Background Gilmore benefits, filed a alleging her permanently answered the complaint, October 30, scheduling things, 2007, order and totally the trial disabled; court discovery seeking she h a d accident, denying the material ("the s c h e d u l i n g provided complaint that i n j u r e d i n a J a n u a r y 29, 2003, w o r k - r e l a t e d rendered benefits affirm. Procedural On and i t awarded that had Masterbrand allegations. entered a On pretrial o r d e r " ) , w h i c h , among deadlines. been The p a r t i e s other conducted discovery. On N o v e m b e r 2 2 , 2 0 1 0 , M a s t e r b r a n d f i l e d the deposition Masterbrand Wennerberg. of filed a Don Hoffman; notice On N o v e m b e r to take Masterbrand's notice later filed requesting deposition of Hoffman a l s o of Wennerberg. scheduling order November of deposition to the notice t o quash, 2010, Dean a motion to She to quash the of deposition she argued p r o h i b i t e d Masterbrand from t a k i n g 2 of Hoffman. that her motion apply In her motions filed of to take 24, the deposition 23, 2010, G i l m o r e quash a motion on a notice that the Hoffman's 2100937 and Wennerberg's d e p o s i t i o n s she c o n t e n d e d , no parties she Masterbrand's the witness deponents' action, and the that list, of to her Empi and not t h a t the d i s c o v e r y had listed of involvement to the passed. unaware unable motions f i l e d with to quash depositions were for discovery on the in the attend of maximum improvement scheduling order. Gilmore's counsel's the and i t stated time that to quash i t would convenient to 3 In inapplicable be used at trial as alternatively, i t with written ("MMI") the as required Masterbrand on the the Gilmore's notice in stated of did depositions, depositions counsel the that scheduled date notices reschedule for was and, court. depositions, order to provide unavailability c o n s t i t u t e grounds Empi in not been t r i g g e r e d because, Additionally, not trial the purposes c u t o f f date had failed medical the scheduling s a i d , G i l m o r e had and was their was it date c o n d u c t e d by date she or counsel depositions the the testimony that occupations Masterbrand argued t h a t the because cutoff because, i n p e r s o n o r t e l e p h o n i c a l l y on t h e d a t e n o t i c e d notices response discovery t o be argued t h a t the deponents were not proposed depositions Empi d e p o s i t i o n s " ) f u r t h e r d i s c o v e r y was because Additionally, ("the to at a attend 2100937 e i t h e r i n person or t e l e p h o n i c a l l y . trial court granted Gilmore's On N o v e m b e r 3 0 , 2 0 1 0 , motions to quash the the Empi depositions. On December reconsider motions the 1, trial to quash Masterbrand Hoffman" Masterbrand court's and a a "notice "notice Wennerberg's depositions of of Masterbrand to On 1 trial trial to December counsel the and d i d not attend or depositions based granted motions were taken counsel On at the which 1 The a mere the facts to quash December nine and that Gilmore's Gilmore's trial the Empi trial; either Hoffman or i t heard ore the trial Gilmore's At the court orally denied this motion the had depositions Gilmore's Wennerberg. court conducted testimony. in court thus, tenus 4 counsel participate before 2010, and notified days 16, Dean Although the that Don Hoffman's cross-examine d i d not trial on of 2010. provided telephonically 2010, of t e l e p h o n i c access to p a r t i c i p a t e i n the d e p o s i t i o n s , counsel to Gilmore's D e c e m b e r 1, 7, depositions, date, grant take rescheduled the new motion deposition Masterbrand of a deposition proceeded on filed decision the Empi d e p o s i t i o n s . filed Wennerberg." 2010, start at a trial of trial. the 2100937 trial, Masterbrand i n t o e v i d e n c e and attempted the t r i a l to submissions of the p a r t i e s , testimony treating physician, judgment finding of disabled. On that May alter, for new a trial. In the trial Masterbrand school a It the court denied filed time by while Masterbrand the graduate and undisputed working trial, who had as an that and a detailed totally motion Masterbrand that the t r i a l On to alternative, motion, evidence. notice a and filed the Gilmore's i n e x c l u d i n g the Masterbrand's a timely of permanently c o u r t had e r r e d unsupported feed store, was was entered i t s postjudgment Factual At court from evidence a t t r i a l j u d g m e n t was After evidentiary Turnley, the judgment or, i n the a s s e r t e d t h a t the t r i a l depositions Michelle trial 2011, amend, o r v a c a t e depositions i n c l u d i n g m e d i c a l r e c o r d s and Gilmore 12, Empi and c o n s i d e r i n g t h e Dr. the the court denied that request. hearing the testimony at t r i a l deposition enter May court's 27, postjudgment of appeal to t h i s Empi 2011, motion. court. Background Gilmore w o r k e d as was a 46-year-old high- a cashier, as a manager a s s e m b l y - l i n e worker at Masterbrand. she suffered for Masterbrand on 5 a January work-related 29, 2003. of injury Gilmore 2100937 began experiencing pain i n the left h a v i n g w o r k e d on t h e a s s e m b l y l i n e notified medical left and in Masterbrand treatment. side of her t h a t her turn, initial She sent her treating physical limitations, still on Based initial disk testified her therapy, March 17, 2003. from pain Gilmore's during at the C4-C5 and her The to Dr. James Gilmore was a White, candidate a for hurt nurse, who, treatment. The cervical strain r e t u r n e d t o work, after t o work, this and with completing without testified an M R I . level initial any that she and was pain, her period of The as MRI well surgery. indicated as a disk treating physician neurosurgeon, 6 the arm a g a i n p l a c e d G i l m o r e on s e v e r a l w o r k r e s t r i c t i o n s and her sought injury left complaints C5-C6 h e r n i a t i o n a t t h e C6-C7 l e v e l . the She arm. continued treating physician ordered bulges a Gilmore some n u m b n e s s i n h e r on and 2003, and, returned after immediately for medical 3, she body to Masterbrand's Gilmore on F e b r u a r y her that after physicians diagnosed therapy. of cabinet doors. and neck to the h o s p i t a l suffering experiencing lifting injury s u p e r v i s o r sent her some r e s t r i c t i o n s , was the body around recommended p h y s i c a l further of side who Gilmore referred opined that requested a 2100937 second which Ala. opinion she and chose Code demanded a p a n e l Dr. 1975. Donald Slappey, physicians J r . See MRI. candidate, continued treating recommended full that physical Gilmore her therapy. a 25-5-77(a), d e t e r m i n e d t h a t t h e r e h a d b e e n no c h a n g e s s i n c e t h e f i r s t determined performed § from and he Slappey four MRI Additionally, Dr. H. of second was not for a cervical Dr. a surgical strain, Slappey i n August 2003. her work without any testified t h a t she c o n t i n u e d to e x p e r i e n c e p a i n from the she was limitations released injured on January w o r k on O c t o b e r 10, October Masterbrand, Gilmore would take and testified 10, 2003, she has 2004, Gilmore from complained of c o n s i s t e n t on the left t h i r d MRI, side which of d a y s " and again she her had and neck body i n 2004. revealed mild at since t h a t she a Swaid that date. continued to f o r her. panel N. she In of four Swaid. She pain with greater pain Dr. ordered disk bulges 7 of prescribed Dr. arm day ceased working, demanded chose last time employment her had Slappey physicians her employed Gilmore which left not been and bad t h e m e d i c a t i o n Dr. December Gilmore until a l t h o u g h she that, have "good days 2003, to 2003. On 29, and Swaid a t the C4-C5, a C5- 2100937 C6, and C6-C7 l e v e l s . He a l s o noted Gilmore's spine. Dr. Swaid surgical candidate and referred for degenerative that opined her p a i n management i n F e b r u a r y changes was to Gilmore Dr. p r e s c r i b e d her August 11, 2005, impairment Lortab Dr. and Turnley rating. She a Michelle Turnley 2005. Dr. T u r n l e y a d m i n i s t e r e d G i l m o r e t r i g g e r - p o i n t and not to other placed also pain injections medications. Gilmore at On with no Gilmore referred MMI for a f u n c t i o n a l - c a p a c i t i e s e v a l u a t i o n ("FCE"), w h i c h i n d i c a t e d t h a t Gilmore's a b i l i t y to l i f t her body lower Turnley significantly f u n c t i o n s , such also occasionally Dr. was impaired. rescinded After her assigned Gilmore a 4% ceased as s t a n d i n g and receiving initial walking, t h e FCE impairment In November 2008, G i l m o r e rating that were results, rating i n S e p t e m b e r 2005 and Gilmore. treating impairment i m p a i r e d and again sought medical for h e r p a i n from Dr. T u r n l e y . Gilmore had trouble obtaining medical treatment from S e p t e m b e r 2005 u n t i l during t h a t p e r i o d she T u r n l e y had testified November 2008. continued through She t a k i n g the treatment t h a t she had Masterbrand testified medications i n i t i a l l y p r e s c r i b e d f o r her because her 8 and that Dr. personal 2100937 internist, Dr. Renee D a v i s , medications diagnosed during a persistent Turnley prescribed Lortab, the pain. or 2009, indicated tunnel her in She syndrome, January the ordered from light-work also 29, arm the epidural blocks that had to a complaints hand the to manage several of no Dr. t o engage i n her medical degree dizziness, of carpal unrelated to injury. medications, the TENS some r e l i e f b u t intensifies 9 which tests. on are Dr. showed MRI numbness provided pain Further, reasonable further the Dr. MRI, and based a t an that fourth f u n c t i o n a l l y able suffers from consistent pain stated not authorized previous 2003, w o r k - r e l a t e d testified did pain, a TENS u n i t changes that, and that Flexeril. a category, stated and and the Turnley t o manage G i l m o r e ' s p a i n . she c e r t a i n t y , Gilmore's Gilmore and a pain Gilmore's Turnley o p i n e d t h a t G i l m o r e was history. medical Dr. degenerative differences employment treat Gilmore attempt that ongoing substantial Turnley ordered i n an testified To neck Nuerotin, Additionally, epidural blocks Turnley downward. she to p r e s c r i b e her I n November 2008, Dr. cervicalgia outward December continued that period. radiate in had 8 on unit, that a 1-to-10 s c a l e . when she engages she She in 2100937 any activity Masterbrand in consistently Russ and that 2003 she has because not of Masterbrand's t h a t he h a d assigned Gilmore 45 had as opined that, not opportunities In He Gilmore's work h i s t o r y , she light-work is age, that are such further testified that for Gilmore's education, vocational vocationally "[c]onsidering work history, [Gilmore's] subjective [Gilmore was] capable open a t t h i s present Issues 10 available job category. 100% p r e s c r i p t i o n medications [Gilmore category, area t e s t i f i e d that, limitations, not] believe jobs Gilmore's Spradley, to restrictions." H o w e v e r , he Jo she testified Turnley's of Gilmore [Gilmore's] physical the i n the that Specifically, of searched contrast, opined she a " v o c a t i o n a l d i s a b i l i t y o f 40 because i n a cashier position. had left pain expert, the a b i l i t y to f i n d a j o b i n the l i g h t - w o r k he she debilitating vocational b a s e d p r i m a r i l y Dr. further the since experiences. Gurley, percent, worked of was] disabled. the factors [Gilmore's] complaints, taking, performing time." expert, [she any of and did the 2100937 Masterbrand trial court raises erred barred Masterbrand having them produced finding issues i n concluding from admitted taking into i s sufficient that two on that the scheduling the order the Empi d e p o s i t i o n s and evidence to support and whether the t r i a l G i l m o r e was p e r m a n e n t l y Standards a p p e a l : whether the from evidence c o u r t ' s judgment and t o t a l l y disabled. of Review "'The t r i a l c o u r t h a s b r o a d a n d c o n s i d e r a b l e d i s c r e t i o n i n c o n t r o l l i n g t h e d i s c o v e r y p r o c e s s and has t h e p o w e r t o manage i t s a f f a i r s . . . t o e n s u r e the o r d e r l y and e x p e d i t i o u s d i s p o s i t i o n o f c a s e s . ' S a l s e r v . K . I . W . I . , S.A., 5 9 1 S o . 2 d 4 5 4 , 456 ( A l a . 1991). T h e r e f o r e , t h i s Court w i l l not i n t e r f e r e w i t h a t r i a l c o u r t ' s r u l i n g on a d i s c o v e r y m a t t e r u n l e s s t h i s C o u r t ' " d e t e r m i n e s , b a s e d on a l l t h e f a c t s t h a t were b e f o r e t h e t r i a l c o u r t , t h a t t h e t r i a l c o u r t c l e a r l y [exceeded] i t s d i s c r e t i o n . " ' Ex p a r t e Henry, 770 S o . 2 d 7 6 , 80 ( A l a . 2 0 0 0 ) ( q u o t i n g Ex p a r t e H o r t o n , 711 S o . 2 d 9 7 9 , 983 ( A l a . 1 9 9 8 ) ) . " Ex parte Vulcan Materials Co., 992 So. 2d 1252, 1259 ( A l a . 2008). "Section the standard cases: 25-5-81(e), of review A l a . Code 1975, p r o v i d e s i n workers' compensation "'(1) In reviewing proof set forth herein issues, review by the A p p e a l s s h a l l be w i t h o u t correctness. 11 the standard of and o t h e r legal Court of Civil a presumption of 2100937 "'(2) In reviewing pure f i n d i n g s 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 supported by s u b s t a n t i a l evidence.' "Substantial evidence i s '"evidence of such weight and q u a l i t y t h a t f a i r - m i n d e d persons i n t h e e x e r c i s e of i m p a r t i a l judgment can reasonably infer t h e e x i s t e n c e o f t h e f a c t s o u g h t t o be p r o v e d . " ' Ex parte T r i n i t y I n d u s . , I n c . , 680 S o . 2 d 2 6 2 , 268 (Ala. 1996) ( 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 . o f F l o r i d a , 547 S o . 2 d 8 7 0 , 871 ( A l a . 1 9 8 9 ) ) . " White 13, Tiger 2012] Graphics, I n c . v. Clemons, So. 3d , [Ms. 2 1 0 0 4 8 2 , ( A l a . C i v . App. January 2012) . Discussion F i r s t , Masterbrand contends that the t r i a l its discretion in concluding that the depositions i n t o evidence at t r i a l . exceeded scheduling p r o h i b i t e d i t from t a k i n g t h e Empi d e p o s i t i o n s Empi court order or entering the In support of i t s argument, M a s t e r b r a n d contends t h a t the d i s c o v e r y c u t o f f as d e s i g n a t e d i n the scheduling Empi d e p o s i t i o n s "trial" because, depositions, order, i t says, allowed and not " d i s c o v e r y " was i n a p p l i c a b l e t o t h e t h e Empi d e p o s i t i o n s pursuant date, to Rule 32(a)(3), A l a . R. C i v . P., it c o n t e n d s t h a t t h e d i s c o v e r y c u t o f f d a t e was n e v e r t r i g g e r e d because Gilmore f a i l e d to provide 12 depositions. were Alternatively, w r i t t e n n o t i c e t h a t she had 2100937 r e a c h e d MMI those explained motions filed i n the above, to quash the subsequent Hoffman and take quashed scheduling trial notices Wennerberg the the Empi trial court Empi d e p o s i t i o n s . to and take order. We deposition granted However, "trial" proceeded depositions i t s original d i d not and, required reject contentions. As and as to after the thus, no quashed opportunity the motions to request to decision quash offer the the regarding Empi Empi exchange o c c u r r e d court fact that depositions depositions of and into either reconsider grant Gilmore's the record, and the court: "THE COURT: Y o u r response, [Gilmore's do offer [the counsel]? " [ G i l m o r e ' s c o u n s e l ] : Judge, these d e p o s i t i o n s were taken after the time for taking depositions contained i n your s c h e d u l i n g order e x p i r e d . And 13 the Masterbrand's between the p a r t i e s " [ M a s t e r b r a n d ' s c o u n s e l ] : J u d g e , we Empi d e p o s i t i o n s ] i n t o the r e c o r d . the notices, to cross-examine its had counsel deposition to of Minnesota Gilmore's In denying Masterbrand's motion court's following previously G i l m o r e had deponent. trial had to trial a t t e n d t h e E m p i d e p o s i t i o n s b a s e d on t h e court Masterbrand depositions travel notices. Gilmore's the trial 2100937 t h e y were a l s o t a k e n a f t e r I f i l e d a m o t i o n t o quash t h e i r d e p o s i t i o n n o t i c e a n d , [ y o u ] , r u l e d a n d -¬ that the scheduling order i n essence p r o h i b i t e d the taking of further depositions. A n d -- a n d g r a n t e d my m o t i o n t o q u a s h , e v e n a f t e r t h a t , t h e y w e n t a h e a d a n d w e n t t o -- i s i t M i n n e s o t a ? "[Masterbrand's counsel]: Yes. "[Gilmore's counsel]: Minnesota. And took these depositions. I h a v e no i d e a w h a t t h e y s a y a n d I h a v e no i d e a why t h e y w e n t t o M i n n e s o t a , b u t , [you], had a l r e a d y quashed t h e i r d e p o s i t i o n n o t i c e and i n essence r u l e d t h a t the time had expired. "THE COURT: I s t h a t r i g h t , [ M a s t e r b r a n d ' s D i d I do t h a t ? T h a t ' s a y e s o r no. counsel]? "[Masterbrand's counsel]: The first notice -- t h e n o t i c e s were resent. specific notices of t r i a l deposition. deposition They were "THE COURT: T h a t ' s n o t w h a t I'm a s k i n g . an o r d e r q u a s h i n g t h e d e p o s i t i o n ? Did I issue "[Masterbrand's counsel]: quash d e p o s i t i o n -¬ "THE COURT: A n d y o u w e n t "[Masterbrand's sir. "THE You an order to ahead? counsel]: COURT: A l l r i g h t . issued -- That's o f Don H o f f m a n , y e s , denied. "[Masterbrand's counsel]: Judge, the motion t o reconsider points out the fact that [Gilmore's counsel] pointed to the scheduling order, that, [ y o u ] , e n t e r e d y o u r o r d e r -- I t h i n k y o u p o i n t e d t o the s c h e d u l i n g o r d e r w i t h r e l y i n g on y o u r d e c i s i o n . I want t o p o i n t o u t t o t h e C o u r t t h a t t h e s c h e d u l i n g order requires [Gilmore] the date that's 14 2100937 triggered i n the scheduling order, starts when [Gilmore] gives written notification to [ M a s t e r b r a n d ] t h a t [ G i l m o r e ] i s a t MMI. T h a t ' s w h e n t h e d a t e s i n y o u r o r d e r a r e t r i g g e r e d , t h a t ' s when the time s t a r t s t o r u n . We h a v e n e v e r received w r i t t e n n o t i f i c a t i o n from [Gilmore's counsel] that h i s c l i e n t , t h a t Ms. G i l m o r e , i s a t MMI. Therefore, i t w o u l d be o u r p o s i t i o n t h o s e d a t e s n e v e r s t a r t e d to run. "THE COURT: Overruled. "[Masterbrand's counsel]: Further, Judge, the depositions are f o r t r i a l purposes. These a r e d e p o s i t i o n s o f p e o p l e o u t s i d e t h e power o f t h e c o u r t and they were trial depositions, evidentiary d e p o s i t i o n s as opposed t o d i s c o v e r y d e p o s i t i o n s . We would ask the court allow these t r i a l depositions, w h i c h t h e y w e r e s p e c i f i c a l l y n o t i c e d a s t o come i n a s D e f e n d a n t ' s E x h i b i t s 1 a n d 2. "THE COURT: Overruled. " [ M a s t e r b r a n d ' s c o u n s e l ] : J u d g e , I ' d l i k e t o make a n o f f e r o f p r o o f on t h e s e d e p o s i t i o n s . I c a n do i t now o r I c a n d o i t d u r i n g my c a s e . B u t , we f e e l t h e s e d e p o s i t i o n s , i f t h e y ' r e a l l o w e d t o come i n t o evidence would give relevant background that would b e b e n e f i c i a l t o t h e C o u r t r e g a r d i n g some o f h e r u s e o f TENS u n i t a n d w h e n s u p p l i e s w e r e g i v e n t o h e r , a s w e l l as g i v e t h e c o u r t knowledge and i n f o r m a t i o n r e l a t e d t o t h e p u r p o s e o f t h e TENS u n i t a n d w h a t a TENS u n i t d o e s . We feel we w o u l d b e g r e a t l y prejudiced i f we a r e n o t a l l o w e d to enter these t r i a l d e p o s i t i o n s i n t o t h e r e c o r d as evidence. "THE COURT: The way I see i t , you prejudiced y o u r s e l f b y n o t g e t t i n g up t h e r e e a r l i e r a n d d o i n g it. 15 2100937 " [ M a s t e r b r a n d ' s c o u n s e l ] : J u d g e , i f I may, we w o u l d again to ask the court to reconsider i t ' s exclusion o f [ t h e E m p i d e p o s i t i o n s ] . We f e e l t h a t t h o s e i f t h o s e w e r e a l l o w e d i n , t h e y w o u l d show e v i d e n c e o f t h e TENS u n i t , t h e u s a g e o f t h e TENS u n i t , which w o u l d be h e l p f u l i n t h e c o u r t making determination in this case a n d we feel we w o u l d b e g r e a t l y p r e j u d i c e d i f t h e s e a r e n o t a l l o w e d t o be "THE COURT: W o u l d i t b e p r e j u d i c e d t o [Gilmore's counsel] i f h e was n o t p e r m i t t e d t o c r o s s - e x a m i n e t h o s e p e o p l e t h a t g a v e t h o s e d e p o s i t i o n s ? I mean, w o u l d t h a t be any p r e j u d i c e t o h i m a t a l l ? "[Masterbrand's counsel]: w i l l s a y t h a t I -"THE COURT: As for court's t h e Empi d e p o s i t i o n s h i n g e d on i t s the discovery c u t o f f date, as s t a t e d reasoning determination i n the scheduling had p a s s e d and t h a t G i l m o r e would have been order, by I Overruled." evidenced by t h e exchange, t h e t r i a l excluding that I can't speak t o t h a t . prejudiced t h e i n t r o d u c t i o n o f t h e Empi d e p o s i t i o n s b a s e d on t h e f a c t s surrounding and the i n i t i a l the subsequent notices as t o which motions requests taking t o take t h e Empi of the depositions, order cannot deposition Masterbrand be used o r deny as a court the first basis i t s offer had e x p l i c i t l y initial t o quash. On a p p e a l , the t r i a l depositions argues that t o quash o f t h e Empi 16 the granted scheduling the notices depositions of into 2100937 evidence "trial" at trial because, depositions Rule 32, Ala. and, thus, R. the of an Civ. r e j e c t t h i s argument and the trial court and not cutoff court relies on the t r i a l being of See depositions d i d not and exceed i t s brief or admitted discovery and date is trial i s no at the trial oral and in this court argument, v. Wade, t o d e p o s e an p r i s o n -- 665 listed F.2d district i n the 661, c o u r t had that case. and before Masterbrand i t s position that discovery from the e x p i r a t i o n scheduling 664-65 2 1982) erred i n denying a party an (5th order. Cir. unavailable witness because the We distinction depositions i t s discretion to depositions, inapplicable. i n t o e v i d e n c e b a s e d on c u t o f f date (holding t h a t the to "discovery" are pursuant c o u r t e r r e d i n p r o h i b i t i n g the Empi d e p o s i t i o n s Charles leave witness, numerous f e d e r a l c a s e s t o s u p p o r t taken the in Empi d e p o s i t i o n s conclude that there In a s s e r t i n g i t s argument to this the unavailable P., discovery between d i s c o v e r y i t says, inmate c u t o f f d a t e had confined passed and As i s w e l l e s t a b l i s h e d , f e d e r a l c a s e l a w i n t e r p r e t i n g t h e F e d e r a l R u l e s o f C i v i l P r o c e d u r e may be p e r s u a s i v e a u t h o r i t y in a n a l y z i n g the Alabama Rules of C i v i l Procedure. First B a p t i s t C h u r c h o f C i t r o n e l l e v. C i t r o n e l l e - M o b i l e G a t h e r i n g , I n c . , 409 So. 2d 727, 729 (Ala. 1981). However, f e d e r a l a u t h o r i t i e s a r e n o t b i n d i n g on an a p p e l l a t e c o u r t i n t e r p r e t i n g the Alabama Rules of C i v i l Procedure. I d . 2 17 2100937 noting that there was a p r a c t i c a l distinction between trial d e p o s i t i o n s a n d d i s c o v e r y d e p o s i t i o n s ) ; O d e l l v . B u r l i n g t o n N. R.R., 151 F.R.D. 6 6 1 , 663 (D. C o l o . 1993) ( h o l d i n g t h a t trial depositions a r e not d i s c o v e r y d e p o s i t i o n s ) ; Spangler v. Sears, Roebuck Co., & (concluding 138 F.R.D. 122, prepare f o r t r i a l w i t n e s s e s whose u n a v a i l a b i l i t y either 356 the taking party); (D. (S.D. I n d . 1991) t h a t , a l t h o u g h t h e d i s c o v e r y p e r i o d has c l o s e d , "a p a r t y may s t i l l allowing 124 f o rt r i a l of the depositions Estenfelder Colo. by t a k i n g t h e d e p o s i t i o n s o f 2001) poses 199 F.R.D. 3 5 1 , there that no d e t r i m e n t t o Corp., v. Gates (finding i s a n t i c i p a t e d " when i s a d i f f e r e n c e between d i s c o v e r y d e p o s i t i o n s and t r i a l and holding that the discovery the taking of t r i a l cutoff depositions t h a t he w o u l d be p r e j u d i c e d date practical depositions d i d not apply to when p l a i n t i f f failed t o show by a l l o w i n g t h e d e p o s i t i o n s ) ; and M a t h e w s v . D e n v e r N e w s p a p e r A g e n c y L L P , ( C i v i l A c t i o n No. 0 7 cv-02097-WDM-KLM, published several there i n F. other Jan. Supp. federal 15, 2d) courts have (D. (same). i s a distinction, depositions 2009) and d i s c o v e r y even However, rejected a practical depositions. 18 Colo. 2009) (not i n contrast, the notion one, between that trial Henkel v. XIM P r o d s . , 2100937 Inc., of 133 F.R.D. 5 5 6 , 557 (D. M i n n . 1 9 9 1 ) ( " N e i t h e r Civil Procedure nor the Rules of the Rules Evidence make any d i s t i n c t i o n between d i s c o v e r y d e p o s i t i o n s and d e p o s i t i o n s f o r use 190 at t r i a l . " ) ; F.R.D. Integra 556 (S.D. C a l . 1999) between a discovery stating that several amendments specifically scheduling States L i f e s c i e n c e s I , L t d . v. Merck deposition Charles, and a to the Federal dictating v. I n t e r n a t i o n a l trial Rules t o Rule at t r i a l purposes of discovery (quoting Rosenthal (W.D. Pa. 1960))); v. between F.3d 1 3 5 8 , 1362 ( 1 1 t h C i r . 2002) before Procedure, provides f o r process); United a distinction a deposition Cab and C h r y s l e r and C o r p . , 90 F.R.D. 3 7 7 , 3 8 1 a n d one t a k e n Peoples decided of C i v i l the discovery Bus. Machs. distinction deposition 16, w h i c h (S.D.N.Y. 1 9 8 1 ) ( " R u l e 32 d o e s n o t ' e v i n c e admissibility no 665 F . 2 d 6 6 1 , h a d b e e n t h e amendment orders (finding KGaA, taken as t o solely for f o r use at t r i a l C o . , 26 Int'l F.R.D. '" 1 1 6 , 117 Corp. v. Chemaly, (declining to extend 280 Charles, 665 F . 2 d 6 6 1 , t o a s i t u a t i o n w h e r e t h e p a r t y t o b e d e p o s e d was a "free" "unduly individual delayed and t h e p a r t y i n undertaking 19 seeking to obtain" the d e p o s i t i o n had the deposition). 2100937 Thus, the federal caselaw regarding this issue i s scant and addressed whether the conflicting. No Alabama expiration of can noted a the Coots, 527 In like mandamus Ala. the R. P. Id. at r i g h t to f u l l y and do Civil not distinguish court issued discovery to Rule The to the trial the 20 allow a the pursuant d e p o s i t i o n was parte Court Procedure, during because the regarding party Ex in to court a the between t h a t he writ of doctor's period, 32(a)(3)(D), had d e f e n d a n t had fact was excluded argued that deprived of b e c a u s e he h a d not qualifications and n o t i c e of d e p o s i t i o n had doctor's because the p l a i n t i f f ' s suggested t h a t the of order a t h e A l a b a m a Supreme cross-examine the doctor conducted discovery opinions However, of court 1296. p r e j u d i c e d due deposition supreme trial evidence scheduling depositions. been taken d e p o s i t i o n at t r i a l he w o u l d be his into the Rules trial our the w h i c h had Civ. and in a power. Procedure Coots, directing admitted taking Federal Civil parte deposition, be the date ( A l a . 1988), depositions Ex cutoff from 1292 of directly subpoena 2d Rules discovery party So. has discovery court's that, Alabama to a preclude outside court only a discovery deposition 2100937 and not an supreme court excluding "'the cause, determined the deposition for "evidentiary" doctor's stated deposition. that the the for conducted both other qualifications examine him however, purposes,'" forms and of discovery in the deposition. in reaching to order as between and and cited with had also rejected between Id. at approval discovery the several argument depositions and used in this could have the doctor's cross- importantly, not noted differentiate "evidentiary" depositions federal court that distinction a the opinions "evidentiary" that existed depositions. 1294-95. T h u s , Ex parte Coots does not provide the i s s u e p r e s e n t e d i n t h i s a p p e a l -- off date otherwise trial; t o be supreme c o u r t P r o c e d u r e do depositions of More t h a t the Alabama R u l e s of C i v i l discovery was in of effectively I d . a t 1294. our erred evidence learn The notice defendant to i t s conclusion, 1295. had the deposition f o r use opinions and i n the or at court because doctor's purpose of d i s c o v e r y or trial deposition that Id. can be used allowed as the pursuant however, i t p r o v i d e s to to 32(a), relevant 21 guidance whether a d i s c o v e r y a basis Rule direct and exclude a from binding on cut¬ deposition, evidence at authority for 2100937 the proposition distinguish After See § case, we Alabama Rules discovery 12-3-16, A l a . considering supreme c o u r t ' s its the between depositions. this that cannot Code that do and not trial 1975. federal parte conclude Evidence depositions numerous d e c i s i o n i n Ex of authorities, Coots, the and trial the court our facts exceeded d i s c r e t i o n by g r a n t i n g G i l m o r e ' s m o t i o n s t o quash the depositions and evidence trial based listed i n the cutoff at date At oral in excluding on the Empi the scheduling argument b e f o r e this Empi depositions e x p i r a t i o n of the of from discovery order. court, Masterbrand asserted t h a t , b a s e d on t h e p r e v i o u s l y c i t e d f e d e r a l a u t h o r i t i e s , t r i a l courts should employ a balancing t e s t to weigh the possible p r e j u d i c e of t a k i n g the d e p o s i t i o n a f t e r the e x p i r a t i o n of discovery cutoff date against the need for Masterbrand contends t h a t , i n t h i s case, the because, i t says, prejudice instead, cutoff the versus relied date deposition trial the solely i n the notices need on deposition. trial court c o u r t d i d not b a l a n c e the for the scheduling and the the Empi expiration order to deny 22 in deciding i t s request erred possible depositions, of the the discovery to quash to enter and, the the Empi 2100937 depositions the i n t o evidence, requirements of Rule although t h e Empi d e p o s i t i o n s 32(a)(3)(B), A l a . R. met C i v . P. We disagree. Initially, and we n o t e t h a t considerable the "[t]he t r i a l discretion in court controlling the p r o c e s s a n d h a s t h e p o w e r t o manage i t s a f f a i r s the o r d e r l y and e x p e d i t i o u s K.I.W.I., S.A., trial court had the a b i l i t y dates listed i n the scheduling Masterbrand had had good cause and November scheduled of undisputed or discovery Salser December some v a r i a t i o n f r o m t h e order had i t determined for waiting 16, 2010, t r i a l notifying "trial" the date, court depositions. until to f i l e that In that Masterbrand had f a i l e d Wennerberg as w i t n e s s e s v. Thus, t h e 3 that November 2 4 , 2 0 1 0 , r e s p e c t i v e l y 23 a n d 21 d a y s b e f o r e depositions additional ( A l a . 1991). to allow broad ... t o e n s u r e d i s p o s i t i o n of cases." 5 9 1 S o . 2 d 4 5 4 , 456 has to l i s t on t h e w i t n e s s the i t s notices i t intended this list 22 case, take i t was e i t h e r Hoffman i t had filed We f u r t h e r n o t e t h a t i n t h e p r e s e n t c a s e t h e u n d e r l y i n g a c t i o n concerned a workers' compensation c l a i m and t h a t A l a . Code 1975, § 25-5-81, p r o v i d e s specific limitations on d i s c o v e r y i n workers' compensation cases i n a d d i t i o n t o the l i m i t a t i o n s on d i s c o v e r y f o u n d i n t h e A l a b a m a R u l e s o f C i v i l P r o c e d u r e . A l a . Code 1975, § 25-5-81 ( " I t i s t h e i n t e n t o f t h i s s e c t i o n t h a t l i m i t e d d i s c o v e r y s h a l l be a v a i l a b l e . " ) . 3 23 2100937 with the t r i a l court. The record also indicates was s e t a f t e r t h e p a r t i e s h a d n o t i f i e d that the trial date court i n w r i t i n g t h a t e a c h p a r t y was p r e p a r e d f o r t r i a l , customary p r a c t i c e i nworkers' Most i m p o r t a n t l y , court concluded Masterbrand enter been allowed t h e Empi distinguishes Masterbrand F.2d Gilmore this relied case upon a t 665 ( " p e r m i t t i n g have p r e j u d i c e d appellees indicates that the t r i a l would t o take depositions been p r e j u d i c e d t h e Empi d e p o s i t i o n s into from have evidence. the federal on a p p e a l . 356; the deposition express on the record finding regarding prejudice, Next, not court exceeded Masterbrand cutoff date v . Wade, 665 R o e b u c k & C o . , 13 8 Corp., and 199 F.R.D. a t supra. the t r i a l Thus, court's we c a n n o t c o n c l u d e that itsdiscretion. argues that p r o h i b i t e d by the scheduling discovery that t o be t a k e n w o u l d n o t v. Gates of trial finding i n a n y w a y " ) ; O d e l l v . B u r l i n g t o n N. Estenfelder our review had or to authorities and Mathews v. Denver Newspaper Agency LLP, based the This See C h a r l e s R.R., 151 F.R.D. a t 6 6 3 ; S p a n g l e r v . S e a r s , F.R.D. a t 1 2 4 - 2 5 ; as i s compensation cases i n Alabama. though, the record that the t r i a l t h e Empi d e p o s i t i o n s because, i tsays, the h a d n o t r u n on December 7, 2 0 1 0 , t h e 24 order were 2100937 date i t took provided MMI. t h e Empi d e p o s i t i o n s , i twith This The written notification argument l a c k s October 30, because Gilmore had never that she had attained merit. 2007, scheduling order provided, p e r t i n e n t p a r t , as f o l l o w s : "That [Masterbrand] s h a l l all discovery [Gilmore] within [Masterbrand] that from written provides 120 d a y s notification [Gilmore] the date that to h a s r e a c h e d MMI, had been placed a t MMI two and a h a l f years before the issuance have notice 2009, been that placed Dr. at testified MMI at t r i a l 15 by for In this case, almost The t r i a l had could constructive on September 15, that Gilmore 11, and the the date passed because court deposition August months counsel 1 1 , 2005 Masterbrand deposition Turnley's deposition i t intended on that Turnley's approximately that that order. G i l m o r e h a d r e a c h e d MMI Dr. T u r n l e y stipulated in concluded counsel f o r t h e commencement o f t h e a c t i o n a n d of the scheduling reasonably on A u g u s t complete or the date of t h i s Order, whichever event i s l a s t t o occur." Gilmore in 2005, o f MMI and between parties was t h e d a t e records. the had stated Further, date of Dr. and the date Masterbrand sent i t s n o t i c e to take t h e Empi 25 depositions. Thus, we 2100937 r e j e c t Masterbrand's argument t h a t the not been before triggered the trial on December in this Accordingly, 7, discovery 2010, a mere parte the because discovery Nissei 1991), we "[t]he discretion process Sangyo A m e r i c a , conclude in Alabama and quashing than a because month deponents because the before were 577 the trial court notices Gilmore's cross-examine scheduled listed counsel the days of Civil trial So. of did to i t s abuse," 2d court Ex 912, not 913 on exceed depositions notices trial were date, Masterbrand's did not deponents, deadline had have because into evidence, expired. motion's without an in Empi less because witness the list, opportunity the trial to court allowing because the discovery To h o l d o t h e r w i s e would allow litigants leave nomenclature, and and to circumvent e s t a b l i s h e d Rule deadlines its filed d e t e r m i n e d t h a t G i l m o r e w o u l d have b e e n p r e j u d i c e d by the Empi d e p o s i t i o n s (Ala. to admit i n t o evidence the deposition the not nine Rules prevent Ltd., denying Masterbrand's request depositions to the that had case. P r o c e d u r e v e s t b r o a d d i s c r e t i o n a r y power i n the control deadline of which 16, the our 26 A l a . R. Civ. court based supreme court P., discovery merely has on a rejected. 2100937 Thus, we granted denied into affirm Gilmore's the trial motions Masterbrand's court's to quash request to actions the enter the as i t depositions Empi insofar and Empi depositions evidence. Finally, finding Masterbrand that Specifically, Gilmore is argues t h a t the t r i a l permanently totally disabled. a s s e r t s t h a t the medical Masterbrand and evidence, the v o c a t i o n a l evidence, and do c o u r t ' s judgment. not support the trial argument, Masterbrand presented to the the testimony presented contends trial that court supporting Gilmore's s e l f - s e r v i n g testimony. Dr. T u r n l e y ' s t e s t i m o n y and Spradley's In court erred i n at In a s s e r t i n g i t s the only i t s Masterbrand evidence finding f o c u s e s on a l l e g e d d e f i c i e n c i e s argument, "[o]ur review i s r e s t r i c t e d to a determination of whether the trial court's factual findings are 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 . A l a . Code 1975, § 2 5 - 5 - 8 1 (e) (2) . T h i s s t a t u t o r i l y m a n d a t e d s c o p e o f r e v i e w does not p e r m i t t h i s c o u r t t o r e v e r s e the t r i a l c o u r t ' s j u d g m e n t b a s e d on a p a r t i c u l a r f a c t u a l finding on the ground t h a t s u b s t a n t i a l evidence supports a contrary factual finding; rather, i t permits this c o u r t to reverse the t r i a l court's judgment only i f i t s factual finding is not s u p p o r t e d b y s u b s t a n t i a l e v i d e n c e . See E x p a r t e M & D M e c h . C o n t r a c t o r s , I n c . , 725 So. 2 d 292 (Ala. 27 was also highlights vocational opinion. reviewing this trial in 2100937 1998). A trial court's findings of fact on conflicting evidence are conclusive i f they are 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 . Edwards v. J e s s e Stutts, I n c . , 655 So. 2d 1012 ( A l a . C i v . App. 1995)." Landers Civ. v. Lowe's App. 2007) Home C t r s . , (opinion Additionally, employee in i s permanently I n c . , 14 S o . 3 d 1 4 4 , 151 ( A l a . on o r i g i n a l s u b m i s s i o n ) . regard to and t o t a l l y determining disabled, whether this court an has stated: "'"The t e s t f o r t o t a l a n d p e r m a n e n t disability i s the i n a b i l i t y to perform one's t r a d e and the i n a b i l i t y to find gainful employment." Fuqua v. City of F a i r h o p e , 628 S o . 2 d 7 5 8 , 759 ( A l a . C i v . App. 1 9 9 3 ) . See a l s o L i b e r t y T r o u s e r s v . K i n g , 627 S o . 2 d 4 2 2 , 424 ( A l a . C i v . A p p . 1993). A "permanent t o t a l d i s a b i l i t y " i s d e f i n e d as i n c l u d i n g "any p h y s i c a l injury or mental impairment resulting from an accident, which injury or impairment permanently and t o t a l l y i n c a p a c i t a t e s the employee from working at and being retrained for gainful employment." § 2 5 - 5 - 5 7 ( a ) ( 4 ) d . , A l a . Code 1975; R u s s e l l v. Beech Aerospace S e r v i c e s , I n c . , 598 S o . 2 d 9 9 1 , 992 ( A l a . C i v . A p p . 1 9 9 2 ) . ' "Alabama C a t f i s h , I n c . v. James, ( A l a . C i v . A p p . 1 9 9 5 ) ." CVS Corp. v. Smith, 981 So. 2d 2007). 28 669 S o . 2 d 9 1 7 , 1128, 1136 918 ( A l a . C i v . App. 2100937 The record testified to that the the in her pain pain medications, the debilitating specifically rating reveals as following relevant pain neck, an 8 on that her a scale even Gilmore stated that herself and further ability to stated concentrate changed because Dr. of Turnley eight ability based can to on t o be and pain opined and to j o i n the at She testified ability ability to lost a daily the basis, activities, the pain that her as well dress as the s u c h as d r i v i n g . interfered "whole to with lifestyle her ha[d] injury." found Gilmore's c r e d i b l e and and medical five that Gilmore that, she was interfere with However, history, or a six able believed, subjective that having a pain can concentrate. a consistently her had debilitating Gilmore's employment able be think experienced further th[e] body, prescribed t e s t i f i e d t h a t she c o m p l a i n t s of p a i n of and 10. her her she that back, 1 to after a b i l i t y t o p e r f o r m numerous o t h e r Gilmore of of taking h a i r on f i x her and side Gilmore interferes with pain sleep. to left shoulder, i s constant, and i n the facts. she one's opined that, Gilmore most likely level. Dr. Turnley to Gilmore engage was in gainful functionally workforce i n a light-duty-work-category 29 level job. 2100937 G i l m o r e ' s FCE lifting. medical Dr. i n d i c a t e d t h a t G i l m o r e had Dr. Turnley testified that trouble consistently there were objective f i n d i n g s to s u b s t a n t i a t e Gilmore's complaints Turnley further testified that she vocational expert regarding employment i n the light-work although pain. defer to a category. and would of Both Spradley differing Gilmore testified Spradley Gurley, impairment and her Gilmore's a b i l i t y to find g a i n f u l ratings, complaints that Gilmore of was testified pain 100% neck i n j u r y . 45% d i s a b i l i t y r a t i n g ; h o w e v e r , he 8 on In a its Gilmore's contrast, be trial [Gilmore]'s "testimony they credible. of found which i s severe, that assigned court noted 30 shoulder Gilmore a 40¬ level "was genuineness," found that and "suffers that stated [was] debilitating e x c r u c i a t i n g , and and i t credible," Gilmore Spradley debilitating. i n open c o u r t chronic, found t e s t i f i e d that a pain c a n d o r and [was] appearance complaints further the Gilmore vocationally disabled, Gurley s c a l e w o u l d be judgment, "demeanor and court In 1-to-10 impressed with her to that opined t h a t Gilmore's p a i n r e s u l t e d from her and of they assigned that consistent pain." from debilitating The chronic and that her with trial pain pain 2100937 within itself precludes [Gilmore] reasonable, g a i n f u l employment" and a r e s u l t of [Gilmore]'s from neck and shoulder on-the-job injuries accident Because a of gainful expect to limitations in this eight conclude was Mfg. v. and Caseco, App. 2010) support consistently the Gilmore pain in the the so to ability due to and experts court permanently White, 457 LLC Dingman, v. (holding trial vocational So. that court's be in disabled. 425, 65 3d was 31 and she or engage cannot and physical pain because, at a level testified that cannot finding that Gilmore Stebbins Eng'g ( A l a . C i v . App. 909, an 925-26 fact (Ala. the Civ. to permanent conflicting, that & 1984); evidence employee's a l t h o u g h t h e e v i d e n c e was the and sufficient f i n d i n g of testimony, totally we See 427 So. there her debilitating, erred 2d r e s u l t of i n j u r y and chronic can her pain of itself that be he medical and as to f i n d l i m i t e d that work arises 2003." determined testified trial total disability, on be any pain proximate 29, in i n j u r y and r e s u l t i n g from a work-related that totally Co. is vocational consistent the i f h i s or her employment case, and can "the shoulder are January worker permanently disabled in n e c k and that engaging based employee's 2100937 chronic pain effects of the pain In rated a 9, on a 1-to-10 scale, and t h e side medications). i t s appellate brief, Masterbrand asserts several a d d i t i o n a l , more s p e c i f i c a r g u m e n t s r e g a r d i n g i t s c h a l l e n g e t o the sufficiency those of the evidence. We will briefly consider arguments. First, Masterbrand contends that Gilmore's p a i n does n o t d i s a b l e h e r body as a whole and, t h e r e f o r e , t h a t t h e evidence presented fails to disability. In Masterbrand cites 2080679, March support an a attempt Norandal 12, 2010] to C i v . App. 2011). So. 3d scheduled member Gilmore's work-related member, and, inapplicable. Both permanent cases , deal Graben, 78 S o . 3 d 9 9 8 , 1 0 0 0 with exception." injuries to a In this case, injury d i d not involve i n Graben A l a . Code, § a and 25-5-57(a)(3); scheduled Davis Grace Standard F u r n i t u r e M f g . C o . , 54 S o . 3 d 9 0 9 , 913 ( s t a t i n g injuries t o t h e employee's neck and shoulder nonscheduled members of the body); 32 [Ms. ( A l a . C i v . App. the holdings thus, total i t s argument, I n c . v. v. Davis, and the "pain See of bolster U.S.A., 2 0 0 9 ) , a n d G.UB.MK C o n s t r u c t o r s (Ala. finding are v. that were i n j u r i e s t o and M i l l r y Mill Co. v . 2100937 M a n u e l , 999 the trial totally part So. 2d 508, court had 520 found the listed Next, i n the contends judgment i s unsupported claims, Gilmore's argues t h a t her her numbness ability court from be considered other of limited her her conditions the that her a c c o u n t any court result the neck the court's because, conditions ability are a i t perform employed. her tunnel on the However, 33 FCE and the trial suffers and shoulder injury, f i n d s no credible 100% i s job related disability without debilitating but results taking into Thus, the conditions." medical and court The injuries Gilmore's unrelated neck syndrome other medical arm argument i n i t s judgment. [Gilmore's] shoulder that to i t Specifically, limitations. besides carpal and of her concluded of trial court s t a t e d " [ t ] h a t [Gilmore] Court also finds that from the medical i n c l u d i n g c a r p a l t u n n e l syndrome. evidence that rejected this the t r i a l and i n j u r y to h i s neck, a body s u b s t a n t i a l evidence gainfully and that "permanently c a r p a l t u n n e l syndrome, d i z z i n e s s , and to Specifically, by unrelated cause (noting schedule"). Masterbrand contributing 2008) e m p l o y e e t o be d i s a b l e d as a r e s u l t o f t h e not hand ( A l a . C i v . App. trial pain conditions. was not Viewing the "the 2100937 facts i n the l i g h t most f a v o r a b l e t o the c o u r t , " Ex p a r t e P r o f e s s i o n a l Bus. Fund, 867 So. 2d 1099, argument t h a t that Gilmore's unrelated medical to her disability. Wimberley, 20 So. ( h o l d i n g t h a t the See 3d trial (Ala. the trial 125, court Bros. 132-33 e r r e d by finding contribute Inc. App. erroneously rely v. 2009) on the c o n d i t i o n s when a w a r d i n g w o r k e r s ' b e n e f i t s because the fact to employee's mention reject Civ. compensation failed we Contractors, (Ala. c o u r t d i d not employee's u n r e l a t e d medical 2003), c o n d i t i o n s d i d not Water trial O w n e r s A s s ' n W o r k e r s ' Comp. 1102 Masterbrand's f i n d i n g s of the the trial court's findings unrelated of medical conditions). Finally, authority, the Masterbrand that alleged internist, support the this introduced into at considered We argument. brief, Dr. any of thus, Dr. by at that the medical trial the Davis's 34 to Gilmore's Masterbrand Davis's citation inappropriately relied find As evidence trial; court without undertaken Davis. appellate testify trial treatment Dr. argues, trial and record Dr. court treatment Davis could because upon personal does highlights records any in not its were not did not not i t had have no 2100937 evidence trial of court her treatment to consider. In i t s judgment, the stated: " [ M a s t e r b r a n d ] d u r i n g t h e t r i a l o f t h i s c a s e made much ado trying to show that [Gilmore] went approximately two (2) y e a r s w i t h o u t a n y treatment f r o m Dr. M i c h e l l e T u r n l e y . [ G i l m o r e ] t e s t i f i e d t h a t d u r i n g t h a t p e r i o d of time the workers' compensation c a r r i e r w o u l d n o t a u t h o r i z e h e r t r e a t m e n t w i t h Dr. M i c h e l l e T u r n l e y a n d t h a t s h e was s t i l l i n n e e d o f her medication and [Gilmore] went to her family practitioner, Dr. Renee Davis, to procure her p r e s c r i p t i o n s f o r p a i n . The C o u r t a l s o f i n d s t h i s t e s t i m o n y c r e d i b l e and b e l i e v a b l e . " The trial c o u r t m e n t i o n e d Dr. her a l l e g e d treatment Davis, of Gilmore. but i t d i d not Instead, s t a t e m e n t i n d i c a t e s t h a t i t m e n t i o n e d Dr. only with its of complaints significant Turnley credibility debilitating "gap" f r o m 2005 u n t i l contradicting requested "gap" an is of given trial in connection Gilmore that and there treatment that she had was with Masterbrand presented testimony court's i s s u e and trial a Dr. repeatedly the court r e j e c t e d Masterbrand's e x p r e s s l y found i n favor of Gilmore, above. " ' [ I ] t i s w e l l e s t a b l i s h e d t h a t the t r i a l c o u r t i n t h e b e s t p o s i t i o n t o o b s e r v e t h e demeanor and 35 her evidence appointment with a t r e a t i n g p h y s i c i a n during p e r i o d ; however, the noted pain Davis pain-management 2008. Gilmore's e v i d e n c e on t h e as i n her assessment the consider 2100937 c r e d i b i l i t y o f the employee and o t h e r w i t n e s s e s i n a w o r k e r s ' c o m p e n s a t i o n c a s e . ' M a y f i e l d T r u c k i n g Co. [ v . N a p i e r ] , 724 S o . 2 d [ 2 2 , ] 25 [ ( A l a . C i v . A p p . 1 9 9 8 ) ] . 'The r e s o l u t i o n o f c o n f l i c t i n g e v i d e n c e i s w i t h i n the e x c l u s i v e p r o v i n c e of the t r i a l court, and t h i s c o u r t i s f o r b i d d e n t o i n v a d e t h a t p r o v i n c e upon r e v i e w . ' I d . " Clear Creek (Ala. C i v . App. trial court treatment Transp., I n c . v. 2004). Thus, inappropriately of Gilmore Peebles, 911 we cannot relied on i n making So. 2d 1059, conclude 1063 that the Dr. Davis's alleged i t s decision t o award Gilmore workers' compensation b e n e f i t s f o r permanent t o t a l d i s a b i l i t y . Based that on the trial permanently our review of the court's finding disabled record, that i s unsupported we cannot Gilmore by was conclude totally substantial and evidence. Conclusion For court's the reasons d i s c u s s e d above, we affirm the trial judgment. AFFIRMED. Thompson, Bryan and P.J., and Moore, Pittman, J . , concur. J J . , concur writings. 36 in the result, without

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.