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Soti v. Lowe's Home Centers1/14/2005
Drue Soti, the plaintiff below, appeals from summary judgment for the defendants, Lowe's Home Centers, Inc. ("Lowe's"), and Specialty Risk Services, Inc. ("SRS"), in his action alleging the tort of outrage and fraudulent suppression. We affirm.
Facts and Procedural History
Lowe's is self-insured for workers' compensation purposes. SRS handles workers' compensation claims filed by employees of Lowe's, and, in turn, a firm called Bunch and Associates assists SRS in handling the medical aspect of those claims.
Soti began working at a Lowe's store in Mobile on March 23, 2000. On April 15, 2000, Soti injured his back while he was bending down to pick up a tray of plants. Soti went to the emergency room, where he was treated and released; he was referred to a physician.
Soti was later examined by several doctors and was eventually referred to an orthopaedic surgeon, Dr. Thomas R. Dempsey. Dr. Dempsey determined that Soti had a herniated disk in his lower back. On September 8, 2000, Dr. Dempsey performed "microdiskectomy" surgery on Soti to correct this condition. On July 13, 2001, Soti had lumbar-disk- fusion surgery at the site of the previous surgery. This surgery, also performed by Dr. Dempsey, required an incision near Soti's navel and another incision in his back. In January 2002, Soti had disk- decompression surgery to relieve the symptoms of spinal stenosis, a narrowing of the spinal canal. All three surgeries were for the treatment of Soti's on-the-job injury.
Soti visited Dr. Dempsey on numerous occasions after the third surgery. On April 17, 2002, Dr. Dempsey found Soti to be at maximum medical improvement ("MMI"), and he assigned Soti a 40% permanent partial disability to the body as a whole. On April 26, Soti's attorney approached SRS seeking a settlement of Soti's workers' compensation claim.
During a June 4, 2002, visit with Dr. Dempsey, Soti indicated that he thought he felt a hernia in the area of the incision in his abdomen. Dr. Dempsey stated in his notes that he could not "really tell" if Soti had a hernia. On June 12, 2002, Soti telephoned Dr. Dempsey's office complaining that the area around the previous incision on his abdomen was "pouching out" and causing pain. Dr. Dempsey's office sent a "referral request" to SRS, stating: "eval[.] and treat for incisional hernia." A box marked "Non Emergency" was checked, and the request sought a referral to Dr. Elden Scott.
On June 18, 2002, six days after Dr. Dempsey's office sent the referral request, Yvonne Sherman, a claims adjuster for SRS, received a telephone call from Dr. Dempsey's office regarding the request. A June 18 entry in Sherman's computerized claims log, which is found in the record, states:
"Got a call from Mr. Soti's doctor and they want to perform hernia surgery. I told them to send in the notes. I called Tara at Bunch [and Associates] and she didn't know anything about the hernia surgery. I got in the notes and Dr. Dempsey was only supposed to give the claimant restrictions. Now he notes that he is concerned about his abdomen and feels like he's developing a hernia. I called Tara and Barbara at Dr. Dempsey['s] office and told them that I would not authorize surgery for the hernia. This guy has been OOW since how did he get a hernia???? Appears he must be doing something."
The next day, June 19, Barbara Richey, the workers' compensation specialist in Dr. Dempsey's office, received a voice-mail message from Sherman denying Dr. Dempsey's request for authorization for a referral to Dr. Scott for Soti. Richey noted the denial in her files and asked Dr. Dempsey to write a letter "further describing the need for the hernia
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