Ex parte Lowe's Home Centers, LLC

209 So. 3d 496
CourtCourt of Civil Appeals of Alabama
DecidedMay 6, 2016
Docket2140885
StatusPublished
Cited by3 cases

This text of 209 So. 3d 496 (Ex parte Lowe's Home Centers, LLC) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ex parte Lowe's Home Centers, LLC, 209 So. 3d 496 (Ala. Ct. App. 2016).

Opinion

On Application for Rehearing

THOMPSON, Presiding Judge.

The opinion of January 22, 2016, is withdrawn, and the following is substituted therefor.

Lowe’s Home Centers, LLC (“Lowe’s”), appeals from an order of the St. Clair Circuit Court (“the trial court”) finding that Sarah Brown, its employee, had sustained an injury to her back arising out of and during the course of her employment with Lowe’s. In the order, the trial court directed Lowe’s to pay for Brown’s medical treatment and an unspecified amount of temporary-total-disability benefits.

The record indicates the following. On August 29, 2014, Brown filed a workers’ compensation action against Lowe’s, seeking medical treatment for her back and an award of workers’ compensation benefits. Lowe’s answered, denying that Brown had a work-related injury, and it filed a motion requesting a hearing to determine what Lowe’s called “medical necessity.” In the motion, -Lowe’s specifically requested “a judicial determination of the medical necessity and causal relationship for any treatment of [Brown’s] back.” The trial court granted Lowe’s request and held an evidentiary hearing on the issue of com-pensability on April 10, 2015.

The evidence presented at the April 10, 2015, hearing indicated the following. Brown had worked at Lowe’s for three years before the events at issue in this action. On May 19, 2014 — a Sunday— Brown reported to work in the outdoor-power-equipment department of the Lowe’s store in Leeds. She testified that she had been off work the day before and had come in to work at 4 a.m. Amber Gargus, an assistant manager at the Lowe’s store in Leeds, worked overnight on May 18 into May 19, 2014, to prepare the store for inventory. She testified that she was Brown’s supervisor. Gargus said that, when Brown came in at 4 a.m., Gar-gus asked her to assist in moving some six-foot stacks of plastic Adirondack chairs from the back of the store to the front. Gargus said that Brown told her she would help with the chairs “but that she may not be able to do much that day because she had hurt herself over the weekend.” Gar-gus then added that Brown told her she had hurt her back. Gargus said she left the store for the day at 5 a.m.

Brown denied that the discussion Gar-gus described had taken place. She said that she saw Gargus and another Lowe’s employee in the lawn and garden department when she “clocked in” on the morning of May 19, Brown testified that she [499]*499acknowledged Gargus and the other employee and that Gargus gave her “brief orders on what they were doing.” Brown then went and “started on the truck,” which, she said, meant that she helped to unload lawn mowers and “stuff’ from the truck and put the merchandise out in the store. Gargus testified that “unload associates” were paid to unload the trucks and that the only reason associates like Brown were asked to come in at 4 a.m. was to put away larger items before customers arrived. Gargus said that she was not aware that Brown had unloaded the truck on the morning of May 19, 2014. Brown said that the unload associates were understaffed that morning and so she had helped to unload the truck. She described the task as strenuous, physical work and said that her back was not hurt before she unloaded the truck.

Brown testified that, by about 7:00 or 7:30 a.m., she had put away all the small freight but that she had had to wait for another associate from her department to arrive so that she could put away air-conditioning units. That job entailed using an “order picker,” which was described as being like an elevator or fork lift that was used to raise heavy merchandise.

Brown testified that Heather Lauder-dale, another Lowe’s employee, arrived at work and that she asked Lauderdale to help with stacking the air-conditioning units. Because Lauderdale was pregnant, Brown said, she was to “delegate” Brown as Brown used the order picker to raise the air-conditioning units about ten feet up and then push them onto the rack. Brown said that the units weighed about 150 pounds each. After the units were raised, Brown said, she had to “bend, pivot, and stoop” to slide or push one unit on top of another. Brown said that, as she was trying to place one unit on the rack, she “felt an immediate pop in [her] back exactly four times, and [her] legs went completely numb and [she] had shooting pain down both sides.” Brown said that she was able to lower the order picker because it was operated by foot. Brown also said that, at that time, Lauderdale was at a desk talking on the telephone to someone at her son’s day-care facility because the child had been ill that morning.

Lauderdale testified that she did not spot for Brown the morning of May 19, 2014, and that Brown did not use the order picker that morning. Lauderdale said that, when she arrived at work between 7:00 and 7:30 a.m., Brown told her that her lower back was hurting and that Brown believed it was her sciatic nerve that was bothering her. Lauderdale also said that Brown had told her she had used the order picker about four days the week before.

Brown testified that the accident occurred at 8:30 a.m. She said that she talked to Jerry Crossley, Lowe’s human-resources manager, and that, then, she made a 10 a.m. appointment that same day to see a chiropractor, Dr. Alan Walch. Brown said that she had not seen Dr. Walch previously. Dr. Walch’s notes indicate that Brown was being seen on May 19, 2014, “due to injuries sustained while at work.” The “Onset” portion of Dr. Walch’s notes reiterates that Brown’s condition was the result of an accident at work, but it also says that the symptoms had been present for a few days. The notes also state that Brown “advises fitting [sic] heavy bag and feeling a pop in her back. She did not have immediate pain symptoms.” After examining Brown, Dr. Walch diagnosed her with a herniated disc and a sprain or strain and referred Brown to her primary-care physician. The notes also indicate that Brown should not return to work at that time.

The next day, May 20, 2014, Brown saw her personal doctor, Lea Clayton. Dr. [500]*500Clayton’s notes indicate that Brown had a disc bulge at the L-4/L-5 level of her spine. Nothing in Dr. Clayton’s notes indicate the cause of the disc bulge, but the diagnosis is shown as a chronic- condition. The physician’s notes dated June 24, 2014, indicate for the first time that Brown told Dr. Clayton that her back pain was caused by an injury at work.. Dr. Clayton’s notes of November 4, 2014, state for the first time what Brown was doing when the injury occurred, that is, that Brown was injured while picking up a window-unit air conditioner at work.

An MRI performed1 on Brown’s spine indicated “degenerative desiccation and loss of disc height at L3-4 and L5-S1.” The MRI report stated:

“At L3-4, there is a small broad-based central disc herniation, which is causing indentation , of the anterior thecal sac and mild narrowing of the lateral recess bilaterally. The neural foramina are widely patent.
“At L5-S1, there is a very small broad-based central disc herniation, which resides completely within the epidural fat space and does not significantly impinge upon the thecal sac. It is causing mild narrowing of the lateral recesses bilaterally. The neural foramina are widely patent at this level as well.”

Dr. Clayton prescribed pain medication and muscle relaxers for Brown.

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Bluebook (online)
209 So. 3d 496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-lowes-home-centers-llc-alacivapp-2016.