Bailey v. Jacksonville Health and Rehabilitation Center, [Ms. 2160350, July 21, 2017] __ So. 3d __ (Ala. Civ. App. 2017). In this unanimous per curiam decision, the court reversed the trial court’s grant of summary judgment for the employer on a claim for workers’ compensation benefits. The court concluded that the evidence before the trial court on medical causation was in conflict, “and the trial court erred in making credibility determinations to decide the fact questions created by the evidence.” Ms. *17.
The court noted that deposition testimony of one of the physicians discussed the employee’s diagnosis found in medical records of certain other physicians and those medical records were not appended to the deposition of the deponent physician. The court noted that the medical records which were not appended to the deposition were inadmissible hearsay but that the trial court was permitted to review the deposition testimony concerning those records because the employee failed to move to strike those deposition excerpts. Ms. *2-3, n. 1. Relatedly, the court noted that medical records submitted by the employee in opposition to the motion for summary judgment were not certified and therefore inadmissible hearsay. Ms. *3, citing Barrett v. Radjabi-Mougadam, 39 So. 3d 95, 98 (Ala. 2009). Again though, the court held that because there was no motion to strike filed by the employer in the trial court, the court “may consider those records in deciding the issues on the merits [on appeal].” Ms. *3, n. 2, citing Ex parte Secretary of Veterans Affairs, 92 So. 3d 771, 776-77 (Ala. 2012).