Fort James Operating Co. v. Irby

Citation895 So.2d 282
PartiesFORT JAMES OPERATING COMPANY v. William F. IRBY, Jr.
Decision Date09 January 2004
CourtAlabama Court of Civil Appeals

Terry A. Moore of Vickers, Riis, Murray & Curran, L.L.C., Mobile, for appellant.

William L. Utsey and Tara B. Armistead of Utsey & Utsey, Butler, for appellee.

Certiorari Denied (as to William Irby) April 30, 2004

Alabama Supreme Court (1030620).

On Applications for Rehearing

THOMPSON, Judge.

The opinion of September 12, 2003, is withdrawn, and the following is substituted therefor.

William F. Irby, Jr., sued his former employer, Fort James Operating Company ("Fort James"), seeking to recover workers' compensation benefits. Fort James answered and denied liability. On September 20, 2002, the trial court entered a judgment in which it found Irby to be permanently, totally disabled and awarded benefits accordingly. Irby moved for an award of costs, and Fort James filed a postjudgment motion. The parties agreed, pursuant to Rule 59.1, Ala. R. Civ. P., to extend the 90-day period for the consideration of the postjudgment motion. The trial court entered an amended judgment on February 13, 2003. In that amended judgment, the trial court reiterated the findings of fact and conclusions of law set forth in its original judgment, awarded Irby certain costs, and denied Fort James's postjudgment motion. Fort James timely appealed.

The record indicates that Irby worked in various capacities for Fort James for approximately 32 years and that, at the time of the trial of this matter, Irby was 60 years old. Irby's jobs for Fort James included working as a pipe fitter and working in Fort James's fire-protection department.

On July 7, 1997, the fire-protection department members practiced for a fire contingency on a riverbank on Fort James's property. Irby testified that while he was walking on the "riprap," or large rocks, located on the riverbank, a rock moved and his right foot slipped between some rocks, causing him to fall; Irby injured his ankle in that incident. Irby testified that a coworker helped him walk back up the riverbank and that his foot and ankle became swollen shortly after his fall. Irby testified that, although his foot was still swollen, he worked the next day, a Friday, for Fort James. Irby explained that he was able to sit for much of the day Friday because of the nature of his job duties on Fridays.

According to Irby, on the Saturday following his fall on the riverbank, he was sitting at home watching television with his foot and ankle elevated and iced when he stood up from his chair and felt a sharp "popping" sensation in his ankle and experienced severe pain. Irby sought medical treatment for his ankle injury the following Monday.

Irby first sought treatment from Dr. Gus A. Rush, who diagnosed Irby as having a subluxation of the tendons in his ankle. Dr. Rush performed surgery on Irby's ankle in late July 1997 to correct the injured tendons; Dr. Rush testified that during that surgery he discovered that Irby had arthritis in his ankle. Irby testified that he informed Dr. Rush that he felt tendons moving or "popping" in his ankle during the time that he had a postoperative cast on his ankle but that Dr. Rush told him that that sensation was "in [his] mind." Dr. Rush treated Irby until October 1997. Irby attempted to return to work at Fort James in November 1997, but he was unable to perform his job duties.

Irby was subsequently seen by Dr. James L. Thomas, a podiatrist, who first treated Irby on November 25, 1997. Dr. Thomas performed a CT scan on Irby's ankle and discovered a fracture in the bone between the ankle and the top of Irby's foot. Dr. Thomas opined that that fracture was several months old and that it had healed. Dr. Thomas also concluded that Irby continued to have problems with the subluxation of the tendons in his ankle; he stated that the repairs performed during the July 1997 surgery had "lost support" and that the support needed to be reestablished. Dr. Thomas performed surgery to correct both the tendon condition in Irby's ankle and to remove some bone near the healed fracture in Irby's foot.

In addition to the foot and ankle injury, Irby had preexisting diabetic neuropathy, which caused him to feel a burning sensation in his feet. Irby testified at trial that he had had that sensation for approximately 10 years and that it had not prevented him from performing the duties of his employment at Fort James.

Irby began experiencing low-back pain that he attributed to being caused by the alteration in his gait that, he said, resulted from his compensating for the injury to his ankle. In September 1998, Irby sought treatment from Dr. Vlad Prelipcean for low-back pain. Dr. Prelipcean opined that it was more likely than not that Irby's ankle injury caused him to alter his gait and that that alteration in Irby's gait brought on the low-back pain. Fort James emphasizes on appeal that Irby had preexisting arthritis in his back. It is undisputed, however, that before his ankle injury any back pain Irby may have suffered did not prevent him from performing his job duties at Fort James.

Dr. Thomas testified that it was possible that Irby's back pain was caused by an altered gait that resulted from Irby's foot and ankle injury. Dr. Prelipcean stated that, although he agreed that Irby's back-pain symptoms were consistent with the symptoms of arthritis, he believed that Irby's chronic low-back pain was aggravated by Irby's inability to walk properly because of his ankle injury. Dr. Rush testified that, although limping can create back-pain symptoms, if Irby's back-pain symptoms were caused by an altered gait attributable to his ankle injury, those symptoms should have appeared before September 1998.

In April 1998, Dr. Thomas returned Irby to work with restrictions; those restrictions included no standing or walking for more than 4 hours out of an 8-hour shift; no more than 15-30 minutes of standing or walking at any one time; no lifting more than 25 pounds; no walking on uneven surfaces; and no climbing stairs or working at heights. Dr. Thomas stated that, initially, the restrictions were primarily based on Irby's diabetic neuropathy. Dr. Thomas stated, however, that as of December 2000, when Irby's ankle injury did not improve, he would have placed Irby on the same restrictions as a result of the ankle injury.

Irby testified that he attempted to return to work in April 1998 but that he was informed that Fort James did not have a job for him that met the restrictions imposed by Dr. Thomas. Therefore, Irby testified, he decided to retire and apply for his pension that was available through his employment with Fort James.

Bill Vincent, a vocational-rehabilitation consultant, testified that, given the restrictions placed on Irby and various other factors, he believed that Irby was permanently and totally disabled. In reaching that conclusion, Vincent considered factors such as Irby's age; his education; his history of working as a manual laborer; the nature of his injury, which caused chronic pain; and the job market in the rural area in which Irby resided.

On appeal, Fort James first argues that the trial court erred in determining that Irby's claim for compensation should not be limited to a scheduled injury. See § 25-5-57(a)(3), Ala.Code 1975 (setting forth the compensation schedule for certain injuries). Fort James contends that Irby's recovery should be limited to compensation for a 22% impairment to his right leg resulting from the ankle injury.1 In making this argument, Fort James contends that the trial court failed to apply our supreme court's recent holding in Ex parte Drummond Co., 837 So.2d 831 (Ala.2002).

In Ex parte Drummond Co., the trial court determined that a worker who had injured his knee had suffered a 50% permanent total disability. This court affirmed that judgment. See Drummond Co. v. Pate, 837 So.2d 829 (Ala.Civ.App.2001)

. Our supreme court reversed the trial court's judgment. Ex parte Drummond Co., 837 So.2d at 837. In doing so, the court addressed the issue whether the worker's knee injury should be compensated under the schedule contained in § 25-5-57(a)(3), or whether that injury was outside the list of scheduled injuries because it caused an impairment to the body as a whole. The court adopted a new test for determining when an injury to a scheduled member should be treated as an unscheduled injury. That test, set forth in 4 Lex K. Larson, Larson's Workers' Compensation Law § 87.02 (2001), and quoted in the court's opinion, provides that "`[t]he great majority of modern decisions agree that, if the effects of the loss of the member extend to other parts of the body and interfere with their efficiency, the schedule allowance for the lost member is not exclusive.'" Ex parte Drummond Co., 837 So.2d at 834. In applying that test to the facts of the case, our supreme court concluded that the worker had failed to present "substantial evidence indicating that `the effects of the loss of the member extend[ed] to other parts of the body and interfere[d] with their efficiency.'" Ex parte Drummond Co., 837 So.2d at 836 (quoting Larson, supra).

Although the evidence at the trial in this case was disputed, the trial court made the following findings and conclusions in that part of its judgment that addressed the issue whether the injury to Irby's ankle extended to his body as a whole:

"[Irby] was treated by several doctors. After being seen first by the mill doctor, Dr. Keith Aldridge, an osteopath, he went to Gus A. Rush, M.D., an orthopaedic surgeon in Meridian, Mississippi. Dr. Rush [performed] surgery on [Irby's] right ankle and leg which was not successful. [Irby] then went to James Thomas, M.D., ... who [performed] surgery again on [Irby's] right ankle and leg. [Irby] also saw Vlad Prelipcean, M.D., board certified in internal medicine, who treated him for his back. Dr. Prelipcean's first
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