Employer Fails to Show Good Cause for Late Petition, Appeals From Non-Final Order

The Court of Civil Appeals rejected an employer’s bid to reverse a workers’ compensation award in two consolidated proceedings. The employer’s petition for mandamus was denied as late — the employer having not shown “good cause” for its delay in filing the petition. The employer’s appeal was dismissed as being from a non-final judgment. Ex parte C & D Logging, Nos. 2070159, 2070198 (Ala. Civ. App. Aug. 29, 2008).

An employee sued his employer for workers’ compensation benefits. Before deciding the core questions of whether the worker was disabled and what benefits he might be owed, the circuit court ordered the employer to provide the worker with a panel of physicians under Ala. Code § 25-5-77(a) (1975). This order was entered on March 29, 2007.

The trial court entered its (nominally) final decision on October 19, 2007. The court found that the worker was permanently disabled and awarded him “all past due . . . and future benefits.” The court did not specify the amount of this award.

The employer then filed two cases in the Court of Civil Appeals. It filed a petition for writ of mandamus on November 20, 2007, to review the March 29 order concerning the panel of physicians. Then, on November 29, 2007, it filed an appeal from the October 19 judgment awarding benefits.

The Court of Civil Appeals turned both of these aside. The mandamus petition, it noted, was filed well outside the 42-day period in which such petitions are considered presumptively timely under appellate Rules 21(a)(3) and 4(a)(1). In such a case, Rule 21(a)(3) requires the petitioner to show “good cause” for the late filing. The employer had not made this showing. The appellate court recognized that the “passage of time, without more” does “not necessarily, by itself,” condemn a late petition to dismissal. Here, however, there was “more.” The worker had been prejudiced by the employer’s delay in filing. Specifically, the worker was forced to “seek, obtain, and presumably pay for his [own] pain-management treatment” in the relevant period. The appellate court also indicated that the issues raised by the mandamus petition were encompassed by the employer’s direct appeal. The employer thus had “an opportunity for review by appeal,” which was “another factor to consider in determining whether good cause exists for allowing an untimely mandamus petition.” The Court of Civil Appeals thus denied the petition as late.

The employer’s direct appeal, for its part, was dismissed as being from a non-final judgment. Recall that the trial court’s October 19 order — which awarded the worker disability benefits — had “fail[ed] to specify a sum certain for” those benefits. This made the judgment non-final. The appellate court explained:

Where the amount of damages is an issue . . . the recognized rule of law in Alabama is that no appeal will lie from a judgment which does not adjudicate that issue by ascertainment of the amount of those damages.


Accordingly, the October 19 order “was not a final judgment that [would] support an appeal.” The Court of Civil Appeals dismissed the employer’s appeal.

(The employer had also couched its direct appeal alternatively as a petition for mandamus. The Court of Civil Appeals rejected this tack. Because the employer would have an adequate remedy by appeal, once a final judgment was entered, mandamus would not lie. The court thus denied the alternative petition.)