author: PER CURIAM. MURDOCK, Judge,

text:
    David GOBER v. ALABAMA DEPARTMENT OF CORRECTIONS and Michael Haley.
    2020064.
    Court of Civil Appeals of Alabama.
    March 14, 2003.
    Rehearing Denied April 25, 2003.
    Certiorari Denied Aug. 15, 2003 Alabama Supreme Court 1021307.

      James M. Patton of Patton & Veigas, P.C., Birmingham, for appellant.
    Andrew W. -Redd, gen. counsel, and Jane LeCroy Brannan, asst. gen. counsel, Alabama Department of Corrections, for appellees.
   PER CURIAM.

This appeal arises from a judgment granting a motion to dismiss a complaint seeking declaratory and injunctive relief and restitution brought against the Alabama Department of Corrections (“the department”) and its commissioner, Michael W. Haley (“the commissioner”), by David Gober (“the inmate”), a state prisoner who allegedly suffered an injury while participating in a prison work-release program pursuant to § 14-8-1 et seq., Ala.Code 1975. The action was brought on behalf of the inmate and an alleged class of similarly situated inmates, and it sought to recover sums allegedly taken by the department from payments made to the inmate and the members of the class as a consequence of injuries the inmate and the members of the class suffered during work-release assignments. The trial court dismissed the complaint, concluding that under § 14-8-6, Ala.Code 1975, the department was authorized to withhold sums from the earnings of work-release inmates. The inmate’s appeal from that judgment was transferred by the Alabama Supreme Court to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Although the trial court granted the department and the commissioner’s motion to dismiss, we note that the trial court did not exclude the materials filed by the inmate in opposition to that motion, which included an informal opinion of the attorney general, the judgment of the United States District Court for the Northern District of Alabama in Moore v. Camp (No. 78-M-0543-S, Aug. 15, 1978) (not reported in F.Supp.), documents indicating the number of inmates in Alabama purportedly receiving workers’ compensation benefits, and certain forms used by the department in connection with community-based programs. Rule 12(b), Ala. R. Civ. P., provides, in pertinent part, that “[i]f, on a motion ... to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment.” Because the trial court considered those materials submitted by the inmate in ruling on the defendants’ motion (it, in fact, quoted Moore in its judgment), we will treat the judgment as a summary judgment. See Rule 12(b), Ala. R. Civ. P., and Wesson v. McCleave, Roberts, Shields & Green, P.C., 810 So.2d 652 (Ala.2001).

“The standard of review applicable to a summary judgment is the same as the standard for granting the motion, that is, we must determine whether there was a genuine issue of material fact and, if not, whether the movant was entitled to a judgment as a matter of law. Our review is further subject to the caveat that [we] must review the record in a light most favorable to the nonmovant and resolve all reasonable doubts against the movant.”

Brewer v. Woodall, 608 So.2d 370, 372 (Ala.1992). However, where, as here, the pertinent facts are undisputed, we review the trial court’s application of the law to those facts to determine whether the department and the commissioner were entitled to a judgment as a matter of law. See Carpenter v. Davis, 688 So.2d 256, 258 (Ala.1997); Rule 56(c)(3), Ala. R. Civ. P.

The facts relating to the inmate’s claims are as follows. In October 2000, the inmate was injured while working outside of his prison. At the time of his injury, the inmate was participating in a work-release program pursuant to § 14-8-1 et seq., Ala. Code 1975. Although the entity for whom the inmate was directly supplying labor paid certain monetary benefits as a consequence of the inmate’s injury, the department “intercepted” those funds and withheld a portion from the inmate on the basis that the withheld funds represented a partial repayment of the costs of the inmate’s incarceration.

In the trial court, the inmate contended that the payments made to him constituted workers’ compensation benefits paid pursuant to the Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975, and that such benefits could not, under § 25-5-86(2), Ala.Code 1975, be seized, sold, or garnished for the payment of “any debt or liability” of the inmate; he contended that the department’s withholding of a portion of the funds paid as a consequence of his injury amounted to just such a forbidden seizure, sale, or garnishment. As we have stated, however, the trial court agreed with the defendants’ position that the department could properly withhold moneys paid to inmates with respect to their work-release labor, citing § 14-8-6, Ala.Code 1975; that statute provides:

“The employer of an inmate involved in work release shall pay the inmate’s wages directly, to the Department of Corrections. The department may adopt regulations concerning the disbursement of any earnings of the inmates involved in work release. The department is authorized to withhold from an inmate’s earnings the cost incident to the inmate’s confinement as the department shall deem appropriate and reasonable. In no event shall the withheld earnings exceed 40 percent of the earnings of the inmate. After all expenses have been deducted by the department, the remainder of the inmate’s earnings shall be credited to his or her account with the department. Upon his or her release all moneys being held by the department shall be paid over to the inmate.”

The inmate’s contention that moneys an inmate receives as a result of an injury he or she incurs while performing labor under a work-release program are workers’ compensation benefits that cannot be withheld by the department is legally unsound. First, we note that inmates performing labor during their incarceration are not properly viewed as “employees” within the scope of the Workers’ Compensation Act. In Downey v. Bituminous Casualty Corp., 349 So.2d 1153 (Ala. 1977), our Supreme Court held that an inmate working for another state agency during his term of imprisonment was not an employee of that agency so as to entitle his survivors to death benefits under the Workers Compensation Act; in so holding, the Doumey court stated that for the Act to apply, “there must be a contract of hire, express or implied, or written,” and that “[t]he person rendering the services must be paid wages directly by the employer.” 349 So.2d at 1155. We followed Downey in Lanford v. City of Sheffield, 689 So.2d 176 (Ala.Civ.App.1997), which involved a city inmate who was injured while performing volunteer work for the city as a trusty in return for a “credit” against a fine he owed. Although we noted that the city inmate’s work was arguably voluntary, we held that the inmate was not entitled to benefits under the Workers’ Compensation Act, reasoning that “the statutory definitions of employment and employee for workers’ compensation purposes in this case remain the same as those referenced in Downey.” 689 So.2d at 179.

As Lanford notes, the requirements of a contract for hire and of payment of wages directly to one who is claimed to be an employee persist in the Act as currently in force. See § 25-5-1(4), Ala.Code 1975 (defining “employer” as “[ejvery person who employs another to perform a service for hire and pays wages directly to the person”), and § 25-5-1(5), Ala. Code 1975 (defining “employee or worker” .as “every person in the service of another under any contract of hire, express or implied, oral or written”). Under § 14-8-6, Ala.Code 1975, inmates who are involved in a work-release program are not directly paid by the persons or companies for whom they provide labor; rather, that section provides that those persons or companies “shall pay the inmate’s wages directly .to the Department of Corrections.” In contrast, § 25-5-86(2) applies only to claims for compensation, awards, and agreements to pay compensation under the Act that are “owned by an injured employee ” (emphasis added). In this case, neither the inmate nor any member of the class he purported to represent qualifies under the Act as an “employee”; therefore, the trial court did not err .in upholding the department’s withholding of moneys received as a consequence of injuries the inmate suffered while on work release..

Although the foregoing analysis resolves the inmate’s claim of error and warrants affirmance on the principle that a summary judgment will be affirmed for any reason apparent from the record, even one not stated by the trial court, Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala. 1988), we note that the trial court’s conclusions regarding the applicability of § 14-8-6 are also correct. That statute expressly permits the department to withhold from an inmate’s earnings an amount, not exceeding 40 percent of such earnings, that the department may deem appropriate and reasonable to offset the cost of an inmate’s confinement. Even if the payments made to the inmate as a consequence of his injury truly were benefits governed by the Workers’ Compensation Act, they still would constitute “earnings” of the inmate, i.e., payments made in lieu of the wages that would have been paid with respect to the work the inmate would have performed. The very purpose of workers’ compensation laws is to provide a substitute for lost wages and earning capacity. See United States Steel Co. v. Baker, 266 Ala. 538, 547, 97 So.2d 899, 907 (1957).

We conclude that § 14-8-6 — a statute that specifically governs the disposition of earnings of state inmates on work release — controls over the provisions of § 25-5-86(2) — a statute that generally prohibits the garnishment, seizure, or sale of claims made, or benefits paid, under the Workers’ Compensation Act. See Baldwin County v. Jenkins, 494 So.2d 584, 588 (Ala.1986) (where two statutes relate to the same subject and embrace the same matter, “a specific or particular provision is controlling over a general provision”); see also State Treasurer v. Schuster, 456 Mich. 408, 572 N.W.2d 628 (1998) (holding that prison-cost-reimbursement statutes took precedence over laws generally preventing garnishment or attachment of public-school-employee pensions). Even if § 25-5-86(2) were controlling, however, the power of the department to withhold up to 40 percent of an inmate’s earning toward the cost of that inmate’s incarceration is not in the nature of a forbidden “seizure” or “garnishment.” Because § 14-8-6 conditions an inmate’s ultimate receipt of the earnings he or she accrues during work release upon the inmate’s release from prison, we cannot conclude that that statute authorizes any sort of judicial “seizure” or “garnishment” of anything to which the inmate is currently legally entitled.

The inmate also argues that the judgment is due to be reversed because, he says, “the [department] has failed to establish that the money was used only for the ‘cost incident to the inmate’s confinement.’ ” We note that the inmate has retained new counsel on appeal; the department and the commissioner correctly note that the inmate’s previous counsel did not argue in the trial court that the alleged failure of the department to specifically identify the use of the moneys withheld from the inmate constituted a basis for denying the motion to dismiss filed by the defendants. Rather, as we have noted, the inmate argued only that § 25-5-86(2) prevented the withholding of any portion of the moneys he received as a consequence of his injury. It is well settled that an appellate court can consider an argument against the validity of a summary judgment only to the extent that the record on appeal contains material from the trial court record presenting that argument to the trial court before or at the time of submission of the motion for a summary judgment. Ex parte Elba Gen. Hosp. & Nursing Home, Inc., 828 So.2d 308, 311-12 (Ala.2001). We therefore do not reach the merits of this issue.

Based upon the foregoing facts and authorities, the trial court’s judgment in favor of the department and the commissioner is due to be affirmed.

AFFIRMED.

YATES, P.J., and CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.

MURDOCK, J., dissents.

MURDOCK, Judge,

dissenting.

I read § 25-5-86(2), Ala.Code 1975, to be plainly worded and straightforward. Compensation benefits payable under the Workers’ Compensation Act “shall not be assignable and shall be exempt from seizure ... for the payment of any debt or liability.”

The Department of Corrections argues, however, that the payments at issue are not compensation benefits under the Workers’ Compensation Act. The majority relies primarily upon Lanford v. City of Sheffield, 689 So.2d 176 (Ala.Civ.App. 1997). I find that case distinguishable.

In Lanford, the claimant was serving a jail sentence for the commission of a misdemeanor in the City of Sheffield. In addition to his jail sentence, the claimant was fined for his offense. While working for the city as a “trusty” to satisfy his fine, the claimant was injured while carrying boxed breakfasts to other city prisoners. Specifically, the claimant was injured while working as a trusty pursuant to Ala.Code 1975, § 12-14-12:

“The judgment of the municipal court may provide that if a fine and costs are not paid within the time prescribed, the defendant shall work out the amount of the judgment under the direction of the municipal authority, allowing not less than $10.00 for each day’s service.”

As a result of his work as a trusty for the city, Lanford received a credit of $30 per day against his fine, as well as other benefits. Lanford was not paid wages by the city. Instead, when the amount of his work credit as a trusty equaled the amount of his fine, he was to be released. Lanford, 689 So.2d at 178.

Under those facts, this court concluded that the claimant “was not an employee of the City who was directly paid wages under a contract for hire.” Id. at 179. We then noted “that other jurisdictions have focused on whether there is a true employment relationship between prisoner and correctional facility to reach a similar conclusion. See, e.g., Porter v. Dept. of Corrections, 876 S.W.2d 646 (Mo.App.1994); Keeney v. Industrial Comm’n., 24 Ariz. App. 3, 535 P.2d 31 (1975).” Id. at 179 (emphasis added).

Unlike the claimant in Lanford, the worker in the present case was not working off a fine but instead received wages and was engaged in “a true employment relationship.” The worker clearly fell within the definition of “employee” and “worker” in Ala.Code 1975, § 25-5-1(5): “[Ejvery person in the service of another under any contract of, hire, express or implied, oral or written.”

It is true that § 25-5-1(4) defines an “employer” as a “person who employs another to perform a service for hire and pays wages directly to the person.” It is clear, however, that it was not the intent of the Legislature in enacting § 25-5-1(4) to require the courts to focus on the particular method by which a worker receives his or her payment — that is, where or to whom payments for the worker’s labor are forwarded. The issue, instead, is whether the putative employer is responsible for the employee’s wages and exercises control over the employee’s work. The Legislature intended to make it clear, for example, that when a business for which work is performed is contractually obligated only to an independent contractor for that work, and that independent contractor, in turn, is responsible for the details of the work, for the wages of the worker, and for how and when the worker performs his job, it is only the independent contractor who is considered the employer. Conversely, a “special employer” who exercises control over a worker provided by a “general employer” (e.g., a temporary-employment agency) and who makes payments correlated to the hours worked by that worker constitutes an “employer” for purposes of § 25-5-1(4) and the Workers’ Compensation Act, even though the employee’s checks are issued by the general employer.

In Gaut v. Medrano, 630 So.2d 362 (Ala. 1993), the Alabama Supreme Court reiterated a

“three-pronged test for determining when an employee of a general employer can become the employee of a ‘special employer’ for purposes of workers’ compensation:
“ ‘ “When a general employer lends an employee to a special employer, the special employer becomes liable for workmens’ compensation [and thus immune from liability for tort actions brought by the special employee] only if
“ ' “(a) the employee has made a contract of hire, express or implied, with the special employer;
“ ‘ “(b) the work being done is essentially that of the special employer; and
“ ‘ “(c) the special employer has the right to control the details of the work.
“ ‘ “When all three of the above conditions are satisfied in relation to both employers, both employers are liable for workmens’ compensation.” ’

“[Terry v. Read Steel Prods.,] 430 So.2d [862] at 865 [ (Ala.1983) ] (quoting 1C A. Larson, The Law of Workmen’s Compensation, § 48 (1980)). The requirement of a contract of hire comports directly with our Workers’ Compensation Act, which defines an ‘employee’ as a ‘person in the service of another under any contract of hire, express or implied, oral or written.’ Ala.Code 1975, § 25-5-1(5).

Gaut v. Medrano, 630 So.2d at 364 (emphasis added).

Consistent with the principles articulated in Gaut, it is clear that the worker in the present case was an employee covered under the Workers’ Compensation Act and that his employer was the outside entity for which he worked.

Even assuming, however, that the worker in this case was not an employee for purposes of our Workers’ Compensation Act, the Department of Corrections still would have had no authority to withhold the moneys at issue. Section 14-8-6, Ala. Code 1975, provides, in part:

“The employer of an inmate involved in work release shall pay the inmate’s wages directly to the Department of Corrections. The department may adopt regulations concerning the disbursement of any earnings of the inmates involved in the work release. The department is authorized to withhold from any inmates earnings the cost incident to the inmate’s confinement as the department shall deem appropriate and reasonable.”

I first note that the terms “wages” and “earnings” are used interchangeably in this statute and, taking the provisions of this statute in pari materia with one another, were intended to refer to the same thing.

Moreover, this statute does not authorize the Department of Corrections to withhold anything other than the ivages or earnings of the inmate from his work-release employment. The compensation an inmate may receive when he is injured may be measured by the inmate’s loss of earning capacity, but they are not “earnings” or “wages.” Based on the plain language of § 14-8-6, see IMED Corp. v. Systems Engineering Associates Corp., 602 So.2d 344 (Ala.1992), I cannot conclude that the Department of Corrections is authorized by this statute to withhold the money at issue in this case.

Based on the foregoing, I respectfully dissent.

      . No objection has been raised to the trial court's consideration of materials outside the pleadings or to its procedure in hearing the motion itself.

      . That section provides, in pertinent part, that "[cjlaims for compensation, awards, judgments, or agreements to pay compensation owned by an injured employee or his or her dependent shall not be assignable and shall be exempt from seizure or sale or garnishment for the payment of any debt or liability.”

      . The same principle regarding preservation of error applies to judgments of dismissal. See Birmingham Hockey Club, Inc. v. National Council on Compensation Ins., Inc., 827 So.2d 73 (Ala.2002).

        "4 Section 25-5-1(4) defines ‘employer’ as ‘Every person who employs another to peifonn a service for hire and pays wages directly to the person.' None of the cases has considered the significance for this definition of the fact that the employee’s wages were channeled through the general employer, and Gaut does not argue that Holnam [the special employer] was not his employer because it did not ‘pay[ ] wages directly to’ him. We think this definition is satisfied by arrangements, such as the one between Industrial [the general employer] and Holnam, where the employee's wages are directly correlated to the hours worked for the special employer and directly attributed to payments from the special to the general employer."


source: Caselaw Access Project

author: CRAWLEY, Judge. MURDOCK, Judge,

license: Public Domain

text:
    WERNER COMPANY v. Teresa WILLIAMS.
    2010925.
    Court of Civil Appeals of Alabama.
    April 18, 2003.
    Certiorari Denied Aug. 15, 2003 Alabama Supreme Court 1021243.

      Paula I. Cobia, Anniston, for appellant.
    Robert' W. Lee, Jr., and Wendy M. Thornton of Lee & Thornton, P.C., Birmingham; and Patrick P. Hughes, Anni-ston, for appellee.
   CRAWLEY, Judge.

Teresa Williams (“the worker”) was employed at Werner Company (“the company”), a manufacturer of ladders, as a materials handler. She sued the company for workers’ compensation benefits, alleging that she had been injured at work on November 30, 1998. After a trial, the trial court entered a judgment finding the worker 100% permanently and totally disabled and awarding the worker benefits and a lump-sum attorney fee. The company appeals.

The Facts as Developed at Trial

The worker testified that her job required her to collect parts as they were needed for the persons assembling the ladders on the assembly line. According to the worker, on November 30, 1998, she was retrieving barrels filled with parts called “spreaders.” The spreaders were in barrels and the barrels were stored on pallets. The worker testified that she was moving one of the barrels toward her when “the pallet broke and the spreaders went forward along with [her] shoulder.” She said that she repeatedly reported the incident to her supervisor, Mark Bruce, but that he did not file a first report of injury. She said she continued to work despite her pain until December 28, 1998; on that date she told her new supervisor, Victor Rodriguez, of her injury, and he sent her to the emergency room at Stringfellow Hospital. The first report of injury form was completed on December 28,1998.

After reporting to the emergency room, the worker was referred to Dr. Charlie Williams. Dr. Williams determined that the worker had strained her shoulder. He prescribed pain medications; he also limited her to two hours of work with her right arm, restricted lifting to no more than 10 pounds, and ordered that she not engage in work involving repetitive motion and that she do no work requiring her to raise her right arm above shoulder-level. At her follow-up appointment on December 30, the worker continued to complain of pain; Dr. Williams’s office notes indicate that he diagnosed tendinitis and bursitis of the right shoulder. Dr. Williams injected the worker’s shoulder with pain medication, continued her restrictions, and ordered one week of physical therapy.

The worker returned to Dr. Williams on January 6,1999, with continued complaints of pain. Dr. Williams’s office notes indicate that he was puzzled that the worker’s pain, which she described as 10 on a scale of 1 to 10, had continued despite her being placed on light duty work and after the pain injection on December 30. He further restricted her work by requiring that she do no work with her right arm. He also referred her to Dr. Willie Stokes, an orthopedic surgeon, for further evaluation.

Dr. Stokes first saw the worker on January 7, 1999. He agreed with Dr. Williams’s assessment of the worker’s injury as tendinitis. According to Dr. Stokes’s deposition testimony, an injury like the worker’s usually develops as a result of some trauma or lifting activity, but the injury is usually resolved within four weeks by simply resting the injured joint. Dr. Stokes explained that tendinitis can induce subacromial' bursitis, which is an inflammation of the bursa. He'said that he treated the worker with another injection of pain medication in her shoulder, and he then released her to return to work with the restriction that she do no lifting of objects greater than 20-pounds.

The worker returned to Dr. Stokes on January 14, 1999, still complaining of severe pain. Dr. Stokes then ordered an MRI of her- shoulder, which, he said, was to rule out a possible tear in the rotator cuff. Bobbie Hammonds, the occupational nurse at the company, telephoned Dr. Stokes on January 19, 1999, before the MRI had been performed, to report that the worker, who had been assigned to a light-duty job, continued to complain of pain. Dr. Stokes indicated to Hammonds that the worker either had an underlying problem that had yet to be diagnosed or that she was malingering. He ordered that the worker not return to work until after her MRI was performed.

The worker underwent an MRI on February 6, 1999. According to the report ■from the radiologist and Dr. Stokes’s deposition testimony, the MRI showed no abnormalities in any of the structures of the shoulder. Dr. Stokes concluded, based on his review of the MRI and on the worker’s failure to heal from what he determined to be a minor case of tendinitis, that the worker should be discharged from treatment and released to work without restrictions.

The -worker, however, continued to complain that she could not work because of her pain. She said in her deposition that she reported to Jerry Lowe, the manager of the company’s human resources division, that she was still in pain and that she could not work despite the fact that Dr. Stokes had released her with no restrictions. She said that he told her to see her own physician. The worker’s testimony is supported by a document in the record, written by Lowe, indicating that he told the worker that the company’s workers’ compensation insurance carrier had denied her request for work-related-injury leave and that she would need to get a release from her personal physician to return to •work.

The worker then went to see Dr. C. Herbert McCrimmon, an orthopedic surgeon she had seen in the past. Dr. McCrimmon examined the worker on February 15, 1999, February 23, 1999, and March 3, 1999. Dr. McCrimmon’s office notes indicate that he was informed that Dr. Stokes had seen the worker and that she was told to check out her medical records and to bring them to her next appointment with Dr. McCrimmon, which she apparently did. After reviewing her MRI, Dr. McCrimmon concluded that the worker may need arthroscopic surgery, so he referred her to his partner, Dr. Duane Tippets, for evaluation and possible surgery.

Dr. Tippets determined that the worker suffered from impingement and recommended an arthroscopic evaluation of her shoulder with possible subacromial decompression. The worker underwent surgery on March 23, 1999. According to Dr. Tippets, the surgery went well, but the worker continued to have pain. He had the worker attempt physical therapy to improve motion and strength.

The worker began physical therapy with Andrea Barnes at David Wilhoite and Associates on April 13,1999, and reported for a total of six appointments. According to her physical therapy records, the worker communicated to Barnes on April 28,1999, that she was. pain-free and that she wished to discontinue therapy at that time. The records reflect that the worker stated that she could carry a laundry basket of wet clothes, reach overhead to hang clothes to dry, pick up and carry a one-gallon jug of milk, and reach overhead to the top shelf while grocery shopping. When questioned about these comments, the worker testified that she had reported being able to do all those things with her left arm. Barnes discharged the worker from therapy on April 28,1999.

However, when the worker returned to Dr. Tippets’s office for a follow-up appointment on May 11, 1999, the worker reported having increased motion but persistent pain. He also noted that she complained of feeling unstable. Dr. Tippets’s office notes reflect that a review of photographs of the worker’s surgery revealed a partial detachment of her anterior glenoidale lab-rum. He suggested in his office notes that the worker’s reports of continued pain might require an open-shoulder reconstruction, but noted that he encouraged her to continue with therapy three times per week for another four weeks. Dr. Tippets’s office notes do not indicate that the worker informed him that she had been discharged from therapy at her own request. One month later, on June 11, 1999, Dr. Tippets scheduled the worker for a shoulder reconstruction on June 30,1999.

The operative record of the June 30, 1999, surgery indicates that the worker had “some definite anterior instability but without definite dislocation.” In addition, the record states that “the anterior capsule was very attenuated and stretched out.” According to the record, once all aspects of the surgery were completed, “this resulted in an exceedingly stable reconstruction.” Again, after a few weeks, Dr. Tippets recommended physical therapy.

The worker began physical therapy at the Northeast Alabama Regional Medical Center. According to the records admitted at trial, the worker began therapy on July 19, 1999. She attended only two other appointments — on July 23 and August 5. She missed the other six scheduled appointments and was discharged on August 12,1999, for failing to attend. The records reflect that she reported having a personal situation that prevented her from attending therapy. Dr. Tippets’s office notes reflect that the worker had reported that she had lost her job and her insurance and that she was not getting paid. However, the worker was employed at the company until November 21, 2000, and her health insurance was in effect until November 30, 2000.

Dr. Tippets testified that he assigned the worker permanent restrictions in July 2000; specifically he prohibited lifting items weighing over five pounds and any overhead work with the right arm. When questioned about when the worker had reached maximum medical improvement (“MMI”), he noted that the injury was, at that time, not considered work-related. However, he said the worker, who had had periods of increased rotation and flexion and had also had setbacks, was, in his opinion, “as good as she was going to get” when he saw her on July 7, 2000. He noted that his impression was that she was not going to get better.

Dr. Tippets stated that, based on the worker’s report of her injury at work, he felt it was possible that the worker’s condition was work-related. He also said that the worker’s job would certainly have contributed to her symptoms if the worker had-had an existing impingement. He also testified that he did not think the worker was 100% disabled.

In December 2000, after three failed attempts, the worker was awarded Social Security disability benefits. The records disclose that she received disability on the basis of her mild mental retardation, “a frozen right shoulder,” and the limitations Dr. Tippets placed on her lifting abilities. Those records contain the report of Dr. Richard Summerlin, a psychologist who performed diagnostic testing on the worker. The document from the Social Security Administration awarding the worker disability benefits indicates that testing revealed her IQ to be 68. The trial court indicated that it had reviewed the records of the Social Security Administration in making its decision.

The worker was also evaluated by Dr. Alan Blotcky, a clinical psychologist, who, after testing the worker, concluded that the worker was mildly mentally retarded with a full-scale IQ of 66. He concluded that the worker could read on a 3.7 grade level, spell on a 2.4 grade level, and perform math on a 2.1 grade level. He also determined that the worker suffered from severe depression, which, he said, would impact her ability to concentrate; to understand, carry, out, and remember instructions; to perform complex or varied job-related tasks; and to respond to customary work-related pressures.

Jo Spradling, a vocational rehabilitation counselor, testified concerning the worker’s loss of access to the job market. Spradling testified that she had reviewed the worker’s medical records from Dr. Tippets and the report of Dr. Blotcky, and had conducted her own testing and had interviewed the worker. She opined that the worker was indeed mildly mentally retarded and noted that her low intellectual capacity, her medical restrictions, and her depression and its effect on her ability to concentrate and carry out job-related tasks would prevent her from finding gainful employment. She concluded that the worker was 100% vocationally disabled.

Standard of Review

Our review of this case is governed by the Workers’ Compensation Act, which states, in pertinent part: “In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.” Ala.Code 1975, § 25-5-81(e)(2). Therefore, this court “will view the facts in the light most favorable to the findings of the trial court.” Whitsett v. BAMSI, Inc., 652 So.2d 287, 290 (Ala.Civ. App.1994), overruled on other grounds, Ex parte Trinity Indus., Inc., 680 So.2d 262, 269 (Ala.1996). Further, the trial court’s finding of fact is supported by substantial evidence if it is “supported by ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Ex parte Trinity Indus., 680 So.2d at 269 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989), and citing § 12-21-12(d)). Our review of legal issues is without a presumption of correctness. Ala.Code 1975, § 25 — 5—81(e)(1); see also Ex parte Trinity Indus., 680 So.2d at 268.

Whether the Trial Court’s Judgment Complies with Ala. Code 1975, § 25-5-88

At the outset, we note that the company indicates that it believes the 'trial court, in its judgment, has made insufficient findings under Ala.Code 1975, § 25-5-88, or that the findings are, if not insufficient, at the least, meager and omissive. The company argues that the trial court’s failure to specifically mention several disputed issues and the testimony or documentary evidence on those issues somehow makes the trial court’s judgment insufficient under § 25-5-88. The company attacks the trial court’s judgment for failing to detail explicitly the numerous medical records and the deposition testimony of Dr. Tippets and Dr. Stokes, for failing to make desired findings on whether the worker was overstating her pain and whether she was feigning her inability to read, and for failing to reference the testimony of Jerry Lowe on issues regarding notice of the worker’s injury, the worker’s ability to read, and her work performance.

The trial court is not required by § 25-5-88 to comment on every item of evidence, each word of testimony, and every line of every deposition offered in evidence. As we have previously stated, “[although § 25-5-88 ... requires a ‘statement of the law and facts and conclusions as determined by [the trial] judge,’ we are unpersuaded that that Code section compels the detailed findings [the company] would have the trial court make.” Bostrom Seating, Inc. v. Adderhold, 852 So.2d 784, 793-74 (Ala.Civ.App.2002) (quoting § 25-5-88). To the extent some of the findings of the trial court may be meager or omissive, we note that a reversal is not required. Instead, we merely conduct the same review as we would of more specific factual findings to determine whether the ultimate finding made by the trial court is supported by substantial evidence. See Cockrum v. Dunlop Tire Corp., 808 So.2d 58, 59 (Ala.Civ.App.2001).

The Company’s Arguments

The company argues that the trial court could not have determined that the worker gave it timely notice of her injury or that she had actually suffered an on-the-job injury because of inconsistencies in the testimony of the worker. The company also argues that the worker’s injury is not an accidental injury, but is instead, the company contends, a nonaccidental, cumulative-stress injury. Thus, the company argues, the worker was required to prove, by clear and convincing evidence, that her employment exposed her to a risk materially in excess of the risk to which all persons are exposed. See Ex parte Trinity Indus., 680 So.2d at 269, and Ala.Code 1975, § 25-5-81(e). The company also argues that the worker’s injury is to a scheduled member.

The company argues that the worker failed to present either clear and convincing or substantial evidence of medical causation, that the trial court considered inadmissible hearsay contained in records of the Social Security Administration admitted into evidence, and that the trial court unduly relied upon the fact that the worker was receiving Social Security disability benefits. The company further contends that the trial court erred in permitting a continuance for the worker to properly certify medical records before trial. In addition, the company argues that the trial court erred by failing to reopen the case to allow the company to admit a video-surveillance tape the company failed to admit at trial and in failing to consider evidence indicating that the worker had failed to return to work or even to attempt to perform her job. Finally, the company argues that the trial court erred in ordering the company to pay for all of the worker’s past and future medical benefits, in failing to properly calculate the worker’s weekly wage, and in failing to calculate the present value of the worker’s future payments before awarding a lump-sum attorney fee.

Whether the Worker Gave the Required Notice

The company argues that the trial court erred by finding that the worker gave the requisite notice of her injury under Ala.Code 1975, § 25-5-78. That section requires a worker to give an employer written notice of an injury within five days of its occurrence. However, oral notice to a supervisor has typically been held to satisfy the statute, despite the statutory language requiring the notice to be written. See Steele v. General Motors Corp., 705 So.2d 402, 404 (Ala.Civ.App. 1997).

The worker testified that she reported the incident to her immediate supervisor on more than on occasion, beginning on November 30, 1998. As the company points out, the worker did see Lowe, to request to take her perfect-attendance day, only a few days before the first report of injury was filled out on December 28, 1998, and she did not report her injury to him. The worker regularly reported to work during the one-month interval between the date of her injury and the date it was initially reported; she may have worked overtime during that month. Although we understand the company’s argument that the worker’s conflicting testimony and some of her behavior might cause one to call into question the veracity of her report that she notified her supervisor of her injury, the trial court heard the worker testify and considered the evidence, and it alone is entrusted to resolve the conflicts in that evidence. Hooker Constr., Inc. v. Walker, 825 So.2d 838, 842 (Ala.Civ.App.2001). Although disputed, the evidence at trial supports the trial court’s apparent conclusion that the worker reported her injury to her immediate supervisor in a timely manner.

Whether the Injury was Work-Related

Likewise, the worker’s testimony concerning exactly how the injury occurred, even though slightly conflicting as mentioned in note 1, is sufficient to support the trial court’s conclusion that the worker suffered a work-related injury. In addition, medical testimony indicated that the worker’s injury was consistent with an injury caused by trauma to the shoulder as a result of either pushing or pulling. Therefore, we cannot say that the trial court’s finding that the worker’s injury was work-related was not supported by substantial evidence.

Whether the Injury was “Accidental” or “Nonaccidental” and Whether the Worker Must Prove Causation by Clear and Convincing Evidence

The company argues on appeal that the worker’s injury was not caused by an accident, but is instead a nonaccidental, cumulative-stress injury requiring the worker to prove causation by clear and convincing evidence. The company contends that the injury manifested by the worker’s experiencing a sharp pain in her shoulder while pushing or pulling a barrel of spreaders is not “accidental” because it is not “an unexpected or unforeseen event, happening suddenly and violently.” See Ala.Code 1975, 25-5-1(7); see also Ex parte Trinity Indus., 680 So.2d at 266 n. 3. The company then reasons that the worker must prove that she was exposed to a risk materially in excess of the risk to which other persons are exposed. See Ex parte Trinity Indus., 680 So.2d at 269. From that premise, the company leaps to a conclusion that the worker must prove medical and legal causation by clear and convincing evidence because the injury is a cumulative-stress, or gradual-deterioration, injury. See Ala.Code 1975, § 25-5-81(e).

Our supreme court “has long concluded that if the job caused the injury then the injury was an ‘accident’ within the intent of the [Workers’ Compensation] Act.” Ex parte Harris, 590 So.2d 285, 286 (Ala.1991). The company is correct in stating that a worker who has suffered a nonaccidental injury must prove that she was exposed to a risk materially in excess of that risk to which persons are exposed every day. Ex parte Trinity Indus., 680 So.2d at 269. However, nothing in the record supports a conclusion that the worker’s injury was caused by something other than an accident. The worker was either pushing or pulling or manipulating in some way a heavy barrel of parts that she, as a materials handler, was required to move. A worker “is not required, under the Act, to prove the existence of some violent and unusual event that resulted in his or her injury — if the job caused the injury, then the injury is an accident within the intent of the Act.” Ex parte Harris, 590 So.2d at 286. We conclude, as did the trial court, that the worker was injured in a traditional accident.

We also conclude that the evidence at trial does not support the company’s argument that the worker’s injury was the result of gradual deterioration or cumulative stress. Medical testimony indicated that the injury like the one suffered by the worker could be caused by a fall onto the affected shoulder or by trauma to the shoulder caused by lifting, pushing, or pulling heavy items. Therefore, contrary to the company’s argument, the worker was not required to prove causation by clear and convincing evidence.

Whether the Worker’s Injury Was to a Scheduled Member

The company argues that the worker’s shoulder injury corresponds to an injury to her arm and is, therefore, a scheduled-member injury. Thus, the company concludes, the trial court erred in awarding the worker benefits based upon a percentage of disability because the only way for it to have done so is to apply the now-overruled test first set out in Bell v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968), overruled by Ex parte Drummond, Co., 837 So.2d 831 (Ala.2002). We need not consider whether the overruling of the Bell test impacts this case because an injury to the shoulder is not an injury to the arm. M.R. Thomason & Assoc., Inc. v. Jones, 48 Ala.App. 67, 70, 261 So.2d 899, 902 (Ala. Civ.App.1972); McCarty v. Campbell Plumbing Co., 45 Ala.App. 617, 620, 234 So.2d 895, 897 (Ala.Civ.App.1970). In addition, we note that the worker sought, and was awarded, benefits for permanent total disability; an award of compensation pursuant to the schedule is for permanent partial disability. Therefore, the trial court was not limited, under Ala.Code 1975, § 25-5-57(3)(a), to awarding the amount of compensation due for the loss of an arm.

Whether the Worker Produced Substantial Evidence of Medical Causation

The company argues that the conflicting evidence on whether the worker was malingering (the opinion of Dr. Stokes and Dr. Williams) or whether she was truly injured at work (the opinion of Dr. Tippets, based primarily on the worker’s self-report) and the conflicting evidence regarding the worker’s desire to recover and her rate of recovery is not sufficient to support the trial court’s determination that the worker was 100% permanently and totally disabled. Under the Workers’ Compensation Act, a worker is permanently and totally disabled if the worker is “incapacitate[d] ... from working at and being retrained for gainful employment.” Ala.Code 1975, § 25-5-57(a)(4)d. A worker is not required to be totally helpless; the worker simply must be unable to perform his or her trade or obtain other gainful employment. Southern Lifestyle Homes v. O'Rear, 628 So.2d 645, 646 (Ala. Civ.App.1993).

As we have previously stated, this court does not reweigh the evidence before the trial court when reviewing its judgment. Bostrom Seating, 852 So.2d at 795. Although we might have resolved the conflicting evidence otherwise, the trial court observed the worker during her testimony and was able to assess her demeanor and determine her credibility — two important factors this court is unable to assess. Hooker Constr., Inc. v. Walker, 825 So.2d 838, 842 (Ala.Civ.App.2001). We have consistently held that a trial court may find that a worker has proven medical causation even in the absence of medical testimony to the effect that the worker’s injuries resulted from a work-related accident. See Hooker Constr., Inc. v. Walker, 825 So.2d 838, 843 (Ala.Civ.App.2001) (citing Wal-Mart Stores, Inc. v. Kennedy, 799 So.2d 188, 195 (Ala.Civ.App.2001)) (stating that the trial court can consider lay, as well as expert, testimony on the issue of medical causation); Waffle House, Inc. v. Howard, 794 So.2d 1123, 1128-29 (Ala.Civ. App.2000) (same). Accordingly, because a favorable view of the testimony and evidence at trial supports the determination that the worker’s physical restrictions, her pain, and her limited intellectual ability together serve to make her 100% permanently and totally disabled, we affirm the trial court’s determination of the worker’s disability.

Whether the Trial Court Impermissibly Relied on Hearsay Evidence

The company argues that the trial court erred by considering the report of Dr. Richard Summerlin, a psychologist, which was contained in records obtained from the Social Security Administration. Both the company and the worker submitted copies of the worker’s Social Security disability file as evidence at trial. Neither party objected to the file; neither party requested that its use be limited in any way; and neither party redacted any material in that file. Accordingly, we do not believe that the company preserved this issue for appeal. See Bostrom Seating, 852 So.2d at 794. Even if any error had been preserved, the admission of and reliance upon Summerlin’s report and upon his conclusion that the worker had an IQ of 68 would have been harmless error because that evidence appears to be cumulative evidence concerning the worker’s intellectual functioning. See Rule 45, Ala. R.App. P.

Whether the Trial Court “Unduly Relied” on the Worker’s Receipt of Social Security Disability Benefits

The company also argues that the trial court unduly relied on the fact that the worker was receiving Social Security disability benefits. The company admits that a trial court may consider the receipt of disability benefits. See Fuqua v. City of Fairhope, 628 So.2d 758, 761 (Ala.Civ.App. 1993) (reversing an award of less than 100% permanent and total disability based, in part, on evidence indicating that the worker received Social Security disability benefits). It then argues that the trial court was not required to do so. The company does not present a legal argument on this issue; instead it chooses again to focus on challenging the trial court’s factual determinations based on the conflicting evidence. We find no error in the trial court’s consideration of the worker’s receipt of disability benefits.

Whether the Trial Court Erred by Granting a Continuance for the Purpose of Allowing the Worker to Certify Medical Records She Intended to Admit as Evidence at Trial

The company argues that the trial court should not have granted a continuance of the original setting of trial for the purpose of allowing the worker to certify medical records she intended to use at trial. The company’s argument that the allowing of a continuance somehow “nullifies” Ala.Code 1975, § 25-5-81(f)(4), which requires that copies of medical records to be admitted at trial be provided to the other party 21 days before trial, is, quite frankly, without merit. Whether to grant a continuance is within the discretion of the trial court. Acustar, Inc. v. Guerin, 593 So.2d 1029, 1031 (Ala.Civ.App.1992). The company has not demonstrated that the trial court’s granting of a continuance in this case was a misuse of that discretion.

Whether the Trial Court Erred by Failing to Reopen the Case to Allow the Company to Submit a Video-Surveillance Tape the Company Failed to Ad mit at Trial

The company argues that the trial court erred by refusing to reopen the case so that the company could admit as evidence a surveillance videotape of the worker. It cites no law compelling us to reverse the trial court for its failure to “anticipate that the [worker] would lie to the court about the content of the videotape.” We will not address this contention, see Rule 28(10), Ala. R.App. P., and Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996) (stating that “[t]his court will address only those issues properly presented and for which supporting authority has been cited” (emphasis added)). We do note, however, that the company’s failure to properly present its evidence is certainly not a basis for reversing the judgment of the trial court.

Whether the Trial Court Erred in Failing to Consider. Whether the Worker Was Precluded by Ala.Code 1975, §§ 25-5-57(a) (3)e. or 25-5-57(a) U)d., from Being Awarded Benefits by Virtue of Her Failure to Return to Work or to Accept a Reasonable Accommodation

The company argues that the worker failed to return to work or to accept a reasonable accommodation and that she is therefore precluded from being deemed permanently and totally disabled pursuant to Ala.Code 1975, §§ 25-5-57(a)(3)e. and 25-5-57(a)(4)d. Section 25-5-57(a)(3)e. does require a worker to accept “employment suitable to his or her capacity offered to or procured for him or her” as a prerequisite to receiving benefits for permanent partial disability. Section 25-5-57(a)(4)d. prevents a worker from receiving benefits for permanent and total disability if he or she refuses a reasonable accommodation offered by the company.

The evidence shows that the company sent the worker home on February 22, 1999, with instructions to return to work only upon a “full release” by her personal physician. Dr. Tippets’s medical records indicate that, while he had released the worker on some occasions to do light-duty work ydth only her left arm, he did not give her a “full release.” In fact, his records reflect that at one point he had concerns that the worker may never be able to perform with her right arm the work she had performed with that arm before the injury. In addition, the company did not present evidence indicating that, it offered light-duty work within the worker’s restrictions or any reasonable accommodations to the worker at any time after February 22, 1999. Accordingly, we find no error;

Whether the Trial Court Erred by Ordering the Company to Pay the Worker’s Past and Future Medical Benefits

The company argues that the trial court erred by ordering the company to pay the worker’s past and future medical benefits because she did not express dissatisfaction with the company-approved physicians or request a panel of four additional physicians from which to choose. Ala.Code 1975, § 25-5-77(a). The company is correct in contending that, generally, it “is not liable for medical or surgical treatment obtained by the [worker] without justification or notice to the [company].” Combustion Eng’g, Inc. v. Walley, 541 So.2d 560, 561 (Ala.Civ.App.1989). However, the company may be liable if the worker was justified in not obtaining the company’s authorization before receiving treatment. Walley, 541 So.2d at 561. The courts of this state have determined that a worker in justified in not obtaining pretreatment authorization from the company in the following instances:

“(1) where the [company] has neglected or refused to provide the necessary medical care, (2) where notice of and request for alternative care would be futile, and (3) where other circumstances exist which justify the selection of alternative care by the [worker].”

Id.

In Walley, this court was faced with a situation similar to that presented in this case. The company in Walley had informed the worker that it would not authorize certain treatment because it contended that the treatment was not related to the work-related injury. Id. The trial court determined that the company was liable for the expenses of the questioned treatment. Id. On appeal, this court affirmed the judgment ordering the company to pay those expenses, noting that the company had refused to authorize treatment based upon its position that the treatment was unrelated to the work-related injury. Id.

Likewise, this court has stated that a worker “may avail himself of medical services if the [company] has expressly or impliedly conveyed to the [worker] the impression that the [worker] is authorized to go to a physician of the [worker’s] choosing....” Blue Bell, Inc. v. Nichols, 479 So.2d 1264, 1267 (Ala.Civ.App.1985); see also Sunnyland Foods, Inc. v. Catrett, 395 So.2d 1005, 1008 (Ala.Civ.App.1980) (affirming a judgment requiring the company to pay medical expenses after authorizing the worker to see a physician of his choosing). In Catrett, the trial court determined that the company’s representative had informed the worker that he could see any physician he wished to consult for treatment of his work-related injury. Catrett, 395 So.2d at 1007. Because the company had “effectively transferred its authority to choose the doctor to [the worker],” the company could not complain that the medical expenses incurred were unauthorized. Id. at 1008.

We conclude that the evidence in this case, like that in Walley and Catrett, supports the trial court’s judgment requiring the company to pay the worker’s medical expenses. We find it rather disingenuous for the company to argue that the worker should be punished because she failed to request authorization for medical treatment of an injury the company had already determined was not work-related. Even more striking is that the company is now complaining after it informed the worker that she was to see her personal physician for further treatment. The trial court has determined that the worker’s injury is work-related and is compensable. The company cannot now argue that the cost of the worker’s medical care should not be borne by it on the basis that the worker failed to seek authorization or failed to use a company-approved physician. The trial court’s judgment ordering payment of the worker’s medical expenses is affirmed.

Whether the Trial Court Erred in Determining the Worker’s Average Weekly Wage for the Period Between November 21, 1999, to November 21, 2000

The company argues that the trial court improperly calculated the worker’s average weekly wage for the period between November 21, 1999, and November 21, 2000, by including in that wage the value of the worker’s fringe benefits, which she continued to receive during that period. The trial court calculated the worker’s average weekly wage during that period to be $514.50, which included $85.29 in fringe benefits. However, the worker received her fringe benefits during this period, so her average weekly wage during this period was $429.21. The worker concedes this error. Accordingly, the trial court’s determination of the worker’s average weekly wage for the period must be reversed, and the cause remanded for the trial court to properly calculate the benefits due the worker based on the proper average weekly wage.

Whether the Trial Court Erred by Failing to Properly Calculate the Lump-Sum Attorney Fee Aiuarded

The company argues that the trial court failed to make a finding concerning the worker’s age, failed to reference the mortality tables contained in Ala.Code 1975, § 35-16-3, and failed to reduce to present value the worker’s future benefits so as to properly compute the lump-sum attorney fee it awarded. The trial court, when awarding a lump-sum attorney fee, must first reduce to present value the periodic future payments due the worker. See Ex parte St. Regis Corp., 535 So.2d 160, 162 (Ala.1988). A review of the trial court’s judgment makes clear that the trial court failed to calculate the amount of future benefits the worker was due, failed to reduce that amount to its present value, and failed to calculate the lump-sum attorney fee award. Because the trial court is required to calculate the lump-sum attorney fee by first reducing the worker’s award to present value, we must reverse that portion of the judgment making the attorney-fee award, and instruct the trial court on remand to properly calculate the future benefits the worker is due based upon her life expectancy, to reduce that amount to its present value, and to then calculate the lump-sum attorney fee due.

Conclusion

After reviewing the conflicting evidence presented to the trial court, we affirm the trial court’s judgment insofar as it assigned 100% permanent total disability to the worker. However, the trial court erred in computing the worker’s average weekly wage for the period between November 21, 1999, and November 21, 2000. In addition, the trial court erred in failing to calculate the worker’s future benefits, in failing to reduce those benefits to present value, and in failing to properly calculate the lump-sum attorney fee award based on those calculations. Accordingly, the trial court’s judgment is reversed, and the cause is remanded for a proper calculation of the benefits due the worker and the attorney fee.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

YATES, P.J., and PITTMAN, J., concur.

MURDOCK, J., concurs in part and concurs in the result in part.

THOMPSON, J., concurs in the result only.

MURDOCK, Judge,

concurring in part and concurring in the result in part.

I concur in all respects with the main opinion, with the exception of the last two sentences of that section of the main opinion titled “Whether the Worker’s Injury Was to a Scheduled Member.” 871 So.2d at 855. I agree with the main opinion that “an injury to the shoulder is not an injury to the arm,” and therefore concur in the result reached in that section. I would not base that result, as does the main opinion, on the additional point that “the worker sought, and was awarded, benefits for permanent total disability.” 871 So.2d at 855 (emphasis added). Even if the trial court’s award had been for permanent partial disability, the trial court would not necessarily have been limited to awarding the compensation due under § 25 — 5—57(3) (a) for the loss of an arm. Moreover, it is the extent of disability, and whether that disability extends beyond the scheduled member, that defines whether a disability is total or partial, not vice versa.

      . Other descriptions of the worker’s accident included statements in medical records that she was pulling a barrel, that she was pushing a barrel, or that she was moving á pallet. Although the company makes much of these somewhat inconsistent descriptions, we find that the, thrust of all the descriptions is that the worker was performing the duties of her job when she was injured.


author: BASCHAB, Judge.

text:
    Michael Anthony COLLINS v. STATE of Alabama.
    CR-02-0508.
    Court of Criminal Appeals of Alabama.
    April 25, 2003.
    Michael Anthony Collins, pro se.
    William H. Pryor, Jr., atty. gen., and James B. Prude, asst. atty. gen., for appel-lee.
   BASCHAB, Judge.

The appellant, Michael Anthony Collins, alleges that he was indicted for murder and first-degree robbery. He further alleges that, on April 6, 1983, he pled guilty to manslaughter and second-degree robbery, and the trial court sentenced him to serve concurrent terms of ten years in prison on each conviction. He did not appeal his convictions. On November 14, 2002, the appellant filed a Rule 32 petition, challenging his convictions. Without requiring a response from the State, the circuit court summarily denied the petition. This appeal followed.

The appellant argues that the trial court did not have jurisdiction to render a judgment and impose a sentence in his second-degree robbery case because he allegedly pled guilty to an offense for which he had not been indicted. Specifically, he contends that the first-degree robbery indictment against him did not “set forth facts from which one might concludeQ that [he] was aided in the robbery by another participant” and that the trial court did not obtain his consent to amend the indictment to add the allegation that another person aided him in the robbery. (Appellant’s brief at p. 3.) In Ex parte Cole, 842 So.2d 605, 609 (Ala.2002), the Alabama Supreme Court held:

“When, as here, an indictment for first-degree robbery fails to set forth facts from which one might conclude that the defendant was aided in the robbery by another participant — an essential element of the offense of second-degree robbery — the insufficiency of the factual basis for a guilty plea to second-degree robbery may be subsequently attacked on the basis that the trial court lacked subject-matter jurisdiction to accept the plea. Had the trial court obtained Cole’s consent to amend the indictment charging first-degree robbery by adding the fact that another participant was present, no new offense would have been charged because first-degree robbery is broad enough to include such an element. An indictment so amended, permitting a defendant to plead guilty to second-degree robbery, would not run afoul of Rule 13.5(a). That, however, did not occur here. To treat the proceedings in this case as if the original indictment included that additional fact just because Cole pleaded guilty would disregard the settled principle that one cannot consent to an improper amendment to an indictment. See Murray v. State, 814 So.2d 1006 (Ala.Crim.App. 2001); Wingard v. State, 821 So.2d 240 (Ala.Crim.App.2001); Green v. State, [619 So.2d 952 (Ala.Crim.App.1993)]; Ross v. State, [529 So.2d 1074 (Ala.Crim. App.1988)].”

In this ease, the indictment against the appellant did not allege sufficient facts from which it could be concluded that another person aided him in the robbery. The indictment alleged that the appellant

“did, in the course of committing a theft of one One Hundred Dollar Bill of the lawful currency of the United States of America of the value of One Hundred Dollars, one mans [sic] diamond ring of the value of One Thousand Two Hundred Ninety-Five Dollars, and one ladies [sic] diamond ring of the value of One Thousand Ninety-Five Dollars, the property of Henry Dotson threaten the imminent use of force against the person of Henry Dotson with the intent to compel acquiescence to the taking of or escaping with the property, while the said [appellant] was armed with a deadly weapon or dangerous instrument, to-wit: pistol in violation of Section 13A-8-41 of the Alabama Criminal Code.... ”

(C.R.31.) Also, we cannot determine from the record before us whether the appellant consented to amend the indictment against him to add the allegation that another person aided him in the robbery. Accordingly, we remand this case to the circuit court with instructions that that court make specific, written findings of fact as to whether the trial court obtained the appellant’s consent to amend the indictment against him to add the allegation that another person aided him in the robbery. On remand, the circuit court may require the State to respond specifically to the appellant’s claim that he was convicted of an offense for which he was not indicted and/or may conduct an evidentiary hearing on that claim. If the circuit court determines that the appellant did not consent to the amendment of the indictment against him to add the allegation that another person aided him in the robbery, then the circuit court shall vacate the appellant’s second-degree robbery conviction. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 56 days after the release of this opinion. The return to remand shall include the circuit court’s specific, written findings of fact and, if applicable, the State’s response and a transcript of the evidentiary hearing.

REMANDED WITH INSTRUCTIONS.

McMILLAN, P.J., and COBB, SHAW, and WISE, JJ., concur.

       Note from the reporter of decisions: On August 15, 2003, on return to remand, the Court of Criminal Appeals dismissed the appeal, without opinion.


author: PER CURIAM. COBB, Judge

text:
    Ex parte Robert B. EUBANK. (In re State of Alabama v. Robert B. Eubank).
    CR-02-0709.
    Court of Criminal Appeals of Alabama.
    May 23, 2003.
    Rehearing Denied Aug. 29, 2003.

      Robert B. Eubank, pro se.
    William H. Pryor, Jr., atty. gen., and Stephanie N. Morman, asst. atty. gen., for respondent.
   PER CURIAM.

The petitioner, Robert B. Eu-bank, filed this petition for a writ of mandamus directing Judge Gloria Bahakel to recuse herself from presiding over his trial for driving under the influence (“DUI”), or, in the alternative, to dismiss the felony DUI charge against him. In September 1999, Eubank was indicted for DUI. In early 2000, the prosecution moved to amend the charge. Eubank was reindict-ed in August 2002 for felony DUI. Judge Bahakel was assigned to preside over the case. She subsequently filed a complaint with the Alabama State Bar against Eu-bank, requesting that his license to practice law be suspended because he was impaired and he was a danger to himself and the community. Eubank moved to dismiss the felony DUI charge for lack of subject matter jurisdiction, i.e., because the action was commenced after the expiration of the statutory limitations period. Judge Ba-hakel denied the motions; this petition followed.

Initially, we must determine if a petition for a writ of mandamus is the appropriate method by which to review Judge Bahakel’s rulings in this case. See Ex parte Spears, 621 So.2d 1255 (Ala. 1993). The Alabama Supreme Court recently in State v. Zimlich, 796 So.2d 399 (Ala.2000), held that a mandamus is not the proper vehicle to review a pretrial ruling alleging that a statute of limitations had expired. The Court stated, “ ‘The fact that a statute of limitations defense is applicable is not a proper basis for issuing a writ of mandamus, due to the availability of a remedy by appeal.’ Ex parte Southland Bank, 514 So.2d 954, 955 (Ala.1987).” 796 So.2d at 403. Eubank also challenged the underlying DUI convictions that formed the basis for the felony DUI charge. Our research has revealed no case where this' Court or the Supreme Court has reviewed a similar issue by way of a mandamus petition. In fact, in Ex parte Spears, 621 So.2d 1255 (Ala.1993), the Alabama Supreme Court stated:

“It is now a well-established general rule in this state that if the matters complained of can ultimately be presented by an appeal, a writ of mandamus will not be issued. Ex parte Fowler, 574 So.2d 745 (Ala.1990). However, this Court, exercising its discretion, has recognized certain exceptions to this general rule in specific cases where appeals are not considered to be adequate to prevent ‘undue injury.’ See, e.g., Ex parte Nissei Sangyo America, Ltd., 577 So.2d 912 (Ala. 1991) (mandamus proper to review discovery rulings); Ex parte Insurance Co. of North America, 523 So.2d 1064 (Ala.1988) (mandamus proper to enforce a trial court’s compliance with this Court’s mandate); Ex parte Rush, 419 So.2d 1388 (Ala.1982) (mandamus proper to enforce a statutory or constitutional right to a jury trial); Ex parte Weissinger, [247 Ala. 113, 22 So.2d 510 (1945)] (mandamus proper to vacate certain interlocutory rulings in divorce cases); see, also, Ex parte Brooks, 264 Ala. 674, 89 So.2d 100 (1956); and Brittain v. Jenkins, 263 Ala. 683, 83 So.2d 432 (1955), and the cases cited therein. The rationale underlying the recognition of these exceptions has not always been crystal clear....
“The tendency, of this Court in the past has been to enlarge the scope of the extraordinary writ of mandamus by recognizing certain exceptions to the general rule that orders ultimately reviewable on appeal from a final judgment are not subject to mandamus review. However, we should not continue to decide cases in a piecemeal fashion. For this reason, mandamus review will generally be restricted in the future to those cases where one of the recognized exceptions applies, or to those extraordinary cases where the rights of the parties cannot be adequately protected by appellate review of a final judgment.”

621 So.2d at 1256-58. Therefore, we will not consider Eubank’s allegations concerning the motion to dismiss. However, mandamus is an appropriate vehicle by which to review a trial court’s ruling on a motion to recuse. See Ex parte Sanders, 792 So.2d 1087 (Ala.2001); Ex parte Jim Walter Homes, Inc., 776 So.2d 76 (Ala.2000); Crawford v. State, 686 So.2d 196 (Ala. 1996); Ex parte Cotton, 638 So.2d 870 (Ala.1994); Ex parte Melof, 553 So.2d 554 (Ala.1989).

Eubank argues that Judge Bahakel should recuse herself because, he argues, the fact that she filed a complaint against him with the Alabama State Bar shows that she is biased against him. Eubank cites Ex parte Rollins, 495 So.2d 636 (Ala. 1986), in support of this contention. The State asserts that Eubank has failed to show that Judge Bahakel is biased against him and that Rollins is distinguishable from the present case.

Canon 3.C.(1), Alabama Canons of Judicial Ethics, states:

“(1) A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where:
“(a) He has a personal bias or prejudice concerning a- party, or personal knowledge of disputed evidentiary facts concerning the proceeding.”

In Rollins, the Alabama Supreme Court addressed the issue whether a trial judge should recuse himself after the judge filed a complaint against Rollins’s attorney with the Alabama State Bar alleging perjury, political vindictiveness, and unfitness to practice law. The Court noted that it appeared that the trial court still had negative feelings against the attorney even though the complaint was filed over two years earlier and the Alabama State Bar had dismissed the complaint. The Court found that Rollins had established that the trial judge was biased and should recuse. The Rollins Court did not specifically address whether the filing of a complaint with the State Bar against an attorney representing a client is sufficient, by itself, to mandate recusal. Neither has our research revealed any other case addressing this issue.

Eubank has attached a copy of the letter Judge Bahakel sent to the Alabama State Bar. The letter states that Eubank continues to drink, that he is impaired, that he is a danger to himself and to the community, and that he should be suspended from practicing law. Eubank is facing charges of felony DUI — he is not the attorney representing a defendant but the defendant himself. Therefore, we believe that the facts of this case raise an even stronger inference of bias than was presented in Rollins.

In order to issue a writ of mandamus a petitioner must establish (1) a clear legal right in the petitioner to the relief sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) no adequate remedy at law; and (4) the properly invoked jurisdiction of the reviewing court. State v. Williams, 679 So.2d 275 (Ala.Crim.App. 1996).

Based on the circumstances of this case and the Court’s holding in Rollins, we believe that Eubank has established the prerequisites for the issuance of this writ. Therefore, this petition is granted to the extent that Judge Bahakel is directed to recuse herself from presiding over Eu-bank’s case. All other relief requested in this petition is denied.

PETITION GRANTED IN PART; DENIED IN PART; WRIT ISSUED.

McMILLAN, P.J., and BASCHAB, J., concur; SHAW, J., concurs in the result; COBB, J., concurs in part and dissents in part; WISE, J., recuses herself.

COBB, Judge

(concurring in part and dissenting in part).

Although I agree that Eubank’s petition should be granted to the extent that Judge Bahakel should recuse herself from presiding over this case, I dissent from the portion of the opinion denying the remainder of Eubank’s petition for a writ of mandamus. Specifically, I dissent from this Court’s presenting an apparent holding in a footnote, particularly a holding that contravenes previous caselaw from this Court and the Alabama Supreme Court.

The cases cited by the majority in footnote 2 do not stand for the proposition that a defendant cannot seek review by way of a petition of a writ of mandamus of an order consolidating criminal charges against him. Rather, those cases concern the consolidation of civil cases. Additionally, those cases do not foreclose review by mandamus in cases where a party to an action complains regarding the consolidation of cases against him. To the contrary, those cases allow mandamus review and address the proper standard of review; they stand for the proposition that, absent an arbitrary abuse of judicial power, mandamus will not lie. See also Ex parte Mullins, 258 Ala. 665, 64 So.2d 829 (1953), and Ex parte Callaway, 247 Ala. 340, 24 So.2d 415 (1946).

In fact, both the Alabama Supreme Court and this Court have reviewed a trial court’s decision to consolidate criminal charges against a defendant by way of a petition for a writ of mandamus. Ex parte Beard, 246 Ala. 338, 20 So.2d 721 (1945), and Ex parte Neal, 675 So.2d 531 (Ala. Crim.App.1995).

Without expressing an opinion regarding the practice of using mandamus to review cases where a defendant seeks a severance of the charges against him, I write to express my concern that this Court in footnote 2, which is essentially dicta, seeks to overrule precedent established by the Alabama Supreme Court and subsequently followed by this Court. I am also concerned that, if this Court wishes to somehow modify established precedent, we should not do so in a footnote.

For the reasons stated above, I respectfully dissent.

      . Eubank is a licensed attorney in Alabama.

      . Eubank has also filed a separate mandamus petition, which we have consolidated with this petition, attacking Judge Bahakel's ruling consolidating two felony DUI charges. However, as the Alabama Supreme Court stated in Ex parte Mount, 242 Ala. 174, 5 So.2d 637 (1942), "the exercise of the discretion by the 'court in granting or refusing a motion to consolidate was not reviewable by mandamus.” 242 Ala. at 176, 5 So.2d at 639. See also Ex parte Montgomery, 247 Ala. 497, 25 So.2d 171 (1946). This issue may be raised on appeal if Eubank is convicted. Mandamus cannot be used as a substitute for an appeal. See Ex parte Majors, 827 So.2d 85 (Ala.2002).

      . "[W]e hold that if the order made by the nisi prius court is within the letter and spirit of the statute, whether it be one consolidating or refusing to consolidate, the court's discretion can not be controlled by mandamus. If the order sought to be reviewed is not within the statute, but constitutes an arbitraiy abuse of judicial power, mandamus will lie to review such order.”

        Ex parte Mount, 242 Ala. 174, 177, 5 So.2d 637, 639 (1942) (emphasis added).
      "The recent decisions of this court hold that if the cases sought to be consolidated come within the influence of § 221, Title 7, Code 1940, and the power conferred on the trial court by said section, the question as to whether such consolidation will be made or denied is a matter of sound judicial discretion, not reviewable by mandamus in the absence of an arbitrary abuse of judicial power.”

        Ex parte Montgomery, 247 Ala. 497, 498, 25 So.2d 171, 173 (1946) (emphasis added).
      I also note that Ex parte Majors, 827 So.2d 85, 86 n. 1 (Ala.2002), contains a footnote that states,
      "We note that Rule 4(d), Ala. R.App. P., adopted effective October 1, 2001, now provides that the review of a grant of a motion to compel arbitration is by appeal, rather than by a petition for the writ of mandamus. However, Majors’s petition was filed on August 9, 2001, before the effective date of the adoption of Rule 4(d).”
      Thus this case, too, is not dispositive of the case at hand.


author: SHAW, Judge.

text:
    Cornet Larry BEARD, Jr. v. STATE of Alabama.
    CR-01-2230.
    Court of Criminal Appeals of Alabama.
    May 30, 2003.

      Timothy W. Fleming, Mobile, for appellant.
    William H. Pryor, Jr., atty. gen., and John M. Porter, asst. atty. gen., for appel-lee.
   SHAW, Judge.

Cornet -Larry Beard, Jr., appeals the trial court’s order revoking his probation.

On April 14, 2000, Beard pleaded guilty to unlawful possession of marijuana in the second degree, a violation of § 13A-12-214, Ala.Code 1975, and to unlawful possession of a controlled substance, a violation of § 13A-12-211, Ala.Code 1975. Beard was sentenced to one year’s imprisonment for the possession-of-marijuana conviction and to 10 years’ imprisonment for the possession-of-a-controlled-substance conviction; the sentences were to run concurrently. Both sentences were suspended, and Beard was placed on two years’ probation for the possession-of-marijuana conviction and on five years’ probation for the possession-of-a-controlled-substance conviction.

On June 12, 2002, Beard’s probation officer filed a delinquency report alleging that Beard had violated the terms and conditions of his probation by “fail[ing] to conduct himself in an honorable manner and failing] to follow [an] instruction of [his] probation officer.” (C. 21.) Beard had been arrested for this alleged probation violation on June 10, 2002. On June 19, 2002, Beard’s probation officer filed a supplemental delinquency report alleging that Beard had also violated the terms and conditions of his probation by committing four new offenses — specifically, two counts of domestic violence, one count of reckless endangerment, and one count of possession of a firearm. On July 24, 2002, the trial court conducted a probation-revocation hearing, after which the court revoked Beard’s probation on both cases.

On appeal, Beard raises two issues. He argues (1) that the trial court’s revocation of his probation was improper because, he says, it was based solely on hearsay, and (2) that the trial court’s order revoking his probation was deficient under Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), and Wyatt v. State, 608 So.2d 762 (Ala. 1992).

Beard’s probation officer, Eric B. Coone, was the only witness to testify at the probation-revocation hearing. He stated that in March 2002, Beard was placed on electronic monitoring and was living with his mother. On May 24, 2002, Beard informed Coone that a conflict had arisen between him and his mother and that he wanted to move in with his girlfriend, Lisa Robinson. Coone gave Beard permission to move in with Robinson. On June 6, 2002, Coone said, he became aware of a conflict between Beard and Robinson, and he instructed Beard not to return to Robinson’s residence. According to Coone, Beard had another place to live at that time. On June 7, 2002, Coone said, he received a telephone call from Robinson informing him that Beard had come to her residence that morning — giving rise to the allegation that Beard had disobeyed an instruction of his probation officer. Coone testified that he later obtained incident reports from the Prichard Police Department that indicated that Beard had gone to Robinson’s residence at approximately 5:00 a.m. on June 7, 2002, and had assaulted Robinson — giving rise to one of the domestic-violence allegations; that Beard had returned to Robinson’s residence a little after 8:00 p.m. on June 7, 2002, and had again assaulted Robinson — giving rise to the second allegation of domestic violence; and that Beard had gone to Robinson’s residence on June 9, 2002, armed with a pistol — giving rise to the allegation of possession of a firearm — which Beard had fired at a friend of Robinson’s who was also at her residence — giving rise to the reckless-endangerment allegation. Coone testified that when he spoke with Beard on June 10, 2002, Beard admitted that he had gone to Robinson’s residence. Finally, Coone testified that he did not know whether Beard had been formally charged as the result of any of the incidents at Robinson’s residence.

Beard contends that the only evidence indicating that he committed the four new offenses was the hearsay testimony of Coone and that, therefore, the revocation of his probation was improper. He preserved this issue when, at the conclusion of the revocation hearing, he argued that his probation should not be revoked because, he said “all of this testimony today from the probation officer has been complete hearsay.” (R. 27.)

“It is well settled that hearsay evidence may not form the sole basis for revoking an individual’s probation. See Clayton v. State, 669 So.2d 220, 222 (Ala.Cr.App.1995); Chasteen v. State, 652 So.2d 319, 320 (Ala.Cr.App.1994); and Mallette v. State, 572 So.2d 1316, 1317 (Ala.Cr.App.1990). ‘The use of hearsay as the sole means of proving a violation of a condition of probation denies a probationer the right to confront and to cross-examine the persons originating information that forms the basis of the revocation.’ Clayton, 669 So.2d at 222.”

Goodgain v. State, 755 So.2d 591, 592 (Ala. Crim.App.1999).

Implicit in Beard’s argument is the assumption that the trial court revoked his probation because of the allegation that he had committed four new offenses. However, the State takes the position that the trial court did not revoke Beard’s probation because he had committed four new offenses, but rather because he had disobeyed his probation officer’s instruction not to go to Robinson’s residence.

In its written revocation order, the trial court stated, in part:

“Defendant was fully advised of the terms and conditions of his probation.
“Included among those terms and conditions was that he obey all municipal, state, and federal laws and that he not visit his girlfriend, Ms. Lisa Robinson, due to past problems between the two.
“While on probation, the defendant has failed to abide by the terms and conditions of his probation by being arrested on new charges including a firearms charge, domestic violence charge, and a reckless endangerment charge.
“On July 24, 2002, a hearing was held, at which time the defendant admitted new charges and going to Ms. Robinson’s house against his probation officer’s instructions.
“The court is reasonably satisfied from the testimony that the defendant did violate the terms and conditions of his probation by being arrest[ed] on the listed charges. Therefore, the probation granted to the defendant is hereby revoked.”

(C. 27.) The reason the trial court revoked Beard’s probation is not clear from this order. Based on our review of the record, it appears that Beard’s only arrest was when he was taken into custody for the alleged probation violations; the record does not indicate that Beard was ever arrested for the new offenses of domestic violence, reckless endangerment, and possession of a firearm.

Based on our review of the transcript of the revocation hearing, together with the fact that Beard and the State have differing interpretations of the admittedly ambiguous order, we conclude that it is impossible for this Court to address Beard’s argument that his probation was revoked based solely on hearsay. It is clear from the record that the only evidence indicating that Beard had committed the four new offenses was hearsay. It is equally clear from the record that there was sufficient nonhearsay evidence presented indicating that Beard had disobeyed his probation officer’s instruction not to go to Robinson’s residence — specifically, Coone’s testimony that Beard had admitted to him that he had gone to Robinson’s residence. See Rule 801(d)(2)(A), Ala.R.Evid. (providing that a “party’s own statement in either an individual or a representative capacity” is, by definition, nonhearsay). If the trial court revoked Beard’s probation because it was reasonably satisfied that Beard had committed the four new offenses, the revocation would be improper because the only evidence presented that Beard committed the new offenses was hearsay. On the other hand, if the trial court revoked Beard’s probation because it was reasonably satisfied that Beard had disobeyed an instruction of his probation officer, the revocation would be proper because there was sufficient nonhearsay evidence to support that charge. Because we cannot determine from the trial court’s revocation order whether the court revoked Beard’s probation because it found that Beard had committed four new offenses or because it found that Beard had disobeyed his probation officer’s instruction not to go to Robinson’s residence, we must remand this case for the trial court to amend its revocation order to include the specific reason or reasons for revoking Beard’s probation.

Beard also argues that the trial court’s written revocation order was deficient and improper because, he says, the court did not state the evidence it relied on in revoking his probation and because, he says, the court incorrectly relied on his alleged “admissions” during the revocation hearing when, he says, he never admitted to the probation violations during the revocation hearing.

In its order, the only two references to the evidence on which the trial court relied in revoking Beard’s probation are a brief reference to “the testimony” and the following statement: “On July 24, 2002, a hearing was held, at which time the defendant admitted new charges and going to Ms. Robinson’s house against his probation officer’s instructions.” (C. 27.) The record reflects that at the revocation hearing Beard never admitted any of the alleged probation violations. Although he admitted to his probation officer that he had gone to Robinson’s residence, the trial court did not state in its order that it was relying on Coone’s testimony regarding that admission; it said that it was relying on Beard’s alleged admissions at the revocation bearing. Beard is correct that the trial court’s order refers to evidence that was never, in fact, presented at the revocation hearing. In addition, “[t]his court has consistently held that general recitations by the trial court that it considered the ‘testimony and arguments of counsel,’ ‘testimony of the defendant,’ ‘sworn testimony,’ ‘testimony in open court,’ are insufficient to satisfy the due process requirements of Armstrong.” McIntosh v. State, 762 So.2d 388, 390-91 (Ala.Crim.App.1999). Therefore, we must also remand this case, for the trial court to amend its revocation order to include the specific evidence presented at the hearing that it relied on in revoking Beard’s probation.

Based on the foregoing, we remand this case for the trial court to amend its written revocation order to reflect the specific reason or reasons that it revoked Beard’s probation and to reflect what evidence presented at the revocation hearing it relied on in doing so. Due return shall be filed no later than 28 days from the date of this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ., concur.

      . The State specifically argues that the hearsay evidence regarding the new offenses was merely evidence that "corroborated” Beard’s nonhearsay admission to his probation officer that he had disobeyed the officer's instruction not to go to Robinson’s residence. (State’s brief at p. 8.)

       Note from the reporter of decisions: On August 22, 2003, on return to remand, the Court of Criminal Appeals affirmed, without opinion.