Allen v. Metro Contract Services, Inc.

• Decision Date: 27 October 1982
• Parties: William Carl ALLEN v. METRO CONTRACT SERVICES, INC., et al. Civ. 3209.
• Court: Alabama Court of Civil Appeals

Page 1289

421 So.2d 1289

William Carl ALLEN v. METRO CONTRACT SERVICES, INC., et al.

Civ. 3209.

Court of Civil Appeals of Alabama.

Oct. 27, 1982.

David H. Meginniss of Hornsby, Blankenship & Robinson, Huntsville, for appellant.

Thomas R. Robinson of Lanier, Shaver & Herring, Huntsville, for appellees.

HOLMES, Judge.

This is a workmen's compensation case.

The trial court awarded the employee benefits based upon a 20% permanent partial disability and corresponding permanent decrease in his earning capacity as a result of his work-related injury. The employee appeals, and we reverse and remand for proper consideration.

The employee contends that the trial court erred as a matter of law in improperly considering certain factors in determining the award.

The dispositive issue on appeal is whether the trial judge erred as a matter of law in improperly considering such vocational factors as age, education and general physical condition in diminishing the percentage of disability.

The record in pertinent part reveals the following:

The employee is a sixty-four year old man. At the time of the accident, he was employed by Metro Contract Services as an electrical technician. As part of his job, the employee often replaced batteries which required dumping the three gallons of sulfuric acid in the battery down a drain. The employee was exposed to sulfuric acid fumes when he dumped the batteries. The employee's injuries occurred as a result of a particularly heavy period of work in which he was draining twenty to thirty batteries at a time over a three day period.

The employee testified he experienced burning in his nose, throat and chest, shortness of breath, wheezing, coughing and exhaustion. Doctors testified tests show employee's lungs were operating below normal. Two doctors testified the employee suffered a 40% disability to his body as a result of lung damage from exposure to sulfuric acid fumes, and a third doctor testified he suffered a 40% to 50% disability.

The employee has a history of various medical problems which includes treatment for recurring bronchitis, urinary tract infection, kidney stones and emotional problems including depression.

The employee had held essentially the same job he had at the time of the accident for the last fifteen years. Before that he operated a pet store for a year, worked as an accountant for fourteen years, and was a cook in the United States Navy. He had a high school diploma and a diploma from North Alabama College of Business. There was testimony from an employee of the Alabama Vocational Rehabilitation Services to the effect that the employee was no longer employable.

The employee was promoted to leadman about a year after his accident, but he testified that due to his injury he had difficulty performing any of the strenuous lifting or labor involved in the job. At the time of the trial, he was on medical leave.

As indicated, the trial court found the employee was 20% disabled. The learned trial judge in pertinent part found the following:

"This Court finds that if the plaintiff [employee] were required to seek new employment, that his earning capacity would be diminished by the injury received as a result of this occurrence, but that his inability to find new employment would not be totally attributable to this injury. This Court must consider the fact that his age, his experience, education and his general physical condition would be a contributing factor in the event that he was unable to find future employment. This Court therefore finds and concludes that the plaintiff has suffered a 20% permanent decrease in his earning capacity or ability to earn as the result of the injury in question, ..."

At the onset, we note the standard of review in a workmen's compensation case is very narrow. The Workmen's Compensation Act, Ala.Code § 25-5-81(d) (1975), provides for review by certiorari. On appeal, review of a workmen's compensation case is limited to questions of law and to examination of the evidence to determine if there is any legal evidence to support the findings of the trial court. E.g., Agan v. Union Foundry Co., 404 So.2d 71 (Ala.Civ.App.1981). The reviewing court may however examine the trial court's application of the law to the facts, Pate v. Miller Transporters, Inc., 381 So.2d 64 (Ala.Civ.App.), affirmed, 381 So.2d 68 (Ala.1979), and the legal conclusions drawn by the trial court, Newman Brothers, Inc. v. McDowell, 354 So.2d 1138 (Ala.Civ.App.), cert. denied, 354 So.2d 1142 (Ala.1977).

In this case, employee contends the learned trial judge misapplied the law in that the trial judge attempted to use vocationally limiting factors to diminish the workmen's compensation award. Put another way, the employee contends that these factors should not be considered to reduce an award but may only be considered to establish the decrease in earning ability which is an intrinsic part of recovery.

To this court, it is clear from a reading of the trial judge's decree that age, education, general physical condition and education were considered by the trial court. It is also clear that the factors were considered as factors which diminished the award, and that these factors were not caused by the injury.

The law is clear that pre-existing conditions and disease(s) do not affect an award of compensation if the job-related injury combined with the pre-existing condition produced the death or disability. Newman Brothers, Inc. v. McDowell, supra. The employee suffering physical ailment or injury due to conditions of his employment does not bear the risk of his own particular physical structure. B.F. Goodrich Co. v. Martin, 47 Ala.App. 244, 253 So.2d 37 (1971).

It is a fundamental principle that the employer takes the employee subject to his physical condition when he enters his employment. Ingalls Shipbuilding Corporation v. Cahela, 251 Ala. 163, 36 So.2d 513 (1948). "It is a well accepted rule that an employer must take the employee as he finds him with any existing infirmities." Meyer v. Electro Static Finishing, Inc., 303 Minn. 508, 230 N.W.2d 24, 27 (1975). Therefore, the trial judge's consideration of employee's "general physical condition" as a factor reducing his compensation was impermissible as it, in effect, treated the employee's general health as a pre-existing condition to reduce the award.

Furthermore, the trial judge's consideration of the employee's age as a "contributing factor" in reducing the employee's compensation is suspect. "The principle that degeneration and infirmities due to age which have not previously produced disability are not a proper basis for reduction of compensation is amply supported by authorities from other jurisdictions." A. Larson, Workmen's Compensation Law, § 59.22 at 10-384, and cases cited therein. The clear import of that principle--that age is not a proper basis for reduction of compensation--is applicable in the instant case even though the "degeneration and infirmities due to age" were not per se a consideration.

Furthermore, while not directly on point, the inherent logic of Black Diamond Coal Mining Co. v. Wilson, 274 Ala. 220, 147 So.2d 810 (1962), is relevant in this case. In Black Diamond, the employer argued since the employee was "too old to find employment, he is not disabled and his capacity to earn has not been affected" by his occupational disease. Black Diamond Coal Mining Co. v. Wilson, supra, 147 So.2d at 811. The court rejected this...