B.F. Goodrich Co. v. Campbell

• Decision Date: 18 January 1984
• Citation: 445 So.2d 920
• Parties: B.F. GOODRICH COMPANY v. Franklin D. CAMPBELL. Civ. 3942.
• Court: Alabama Court of Civil Appeals

Page 920

445 So.2d 920

B.F. GOODRICH COMPANY v. Franklin D. CAMPBELL.

Civ. 3942.

Court of Civil Appeals of Alabama.

Jan. 18, 1984.

Olin W. Zeanah and Larry Bradford of Zeanah, Donald & Hust, Tuscaloosa, for appellant.

Robert V. Wooldridge, III of Woolridge, Woolridge & Malone, Tuscaloosa, for appellee.

HOLMES, Judge.

This is a workmen's compensation case. After an ore tenus hearing, the trial court determined that the employee had sustained a ten percent permanent partial disability. The employer appeals through able counsel and we affirm.

The dispositive issues on appeal are (1) whether the trial court erred in finding a loss of ability to earn when the evidence reveals that the employee's post-injury earnings equal or exceed his earlier earnings, and (2) whether the trial court erred when it taxed the cost of a medical deposition against the employer.

At the outset we are compelled to repeat the oft-quoted standard of review in workmen's compensation cases; as we stated in Goodyear Tire & Rubber Co. v. Corfman, 424 So.2d 1326 (Ala.Civ.App.1982),

"[T]he trial court's finding is conclusive if there is any evidence in the report that will support it. Legg v. Americold Compressor Co., 336 So.2d 1121 (Ala.Civ.App.1976) ; Purser Steel, Inc. v. McEwen, 47 Ala.App. 263, 253 So.2d 56 (1971). This court can consider neither the weight nor the propriety of the trial court's finding of fact. Our inquiry is limited to a determination of whether there is any evidence to support the trial court's finding. Kroger Co. v. Millsap, 280 Ala. 531, 196 So.2d 380 (1967); Tidwell Industries, Inc. v. Kennedy, 410 So.2d 109 (Ala.Civ.App.1982); Legg v. Americold Compressor Co., supra."

Id. at 1327. With this standard of review in mind, we look at the evidence as presented in the trial court.

The employee, Franklin D. Campbell, is forty-six years old and a high school graduate. He has been employed at the B.F. Goodrich plant in Tuscaloosa since 1957, and has held his present position, that of an operator in the powerhouse, for about five years. Campbell described the powerhouse operator job as not very demanding physically because the majority of his time is spent monitoring automatic machinery. The "heavy work" involved stems from the job's limited repair and maintenance duties.

Campbell's medical evidence reveals a history of only minor back ailments prior to the October 10, 1981, on-the-job accident. On that date Campbell was standing on a fourteen-foot portable ladder, attempting to open a valve with a wrench, when the ladder moved unexpectedly. Campbell lost his balance and fell into a network of piping. He felt an immediate severe pain--which he described as a snap--in his back and side.

Campbell was treated by the company doctor and was hospitalized for eight days. Three weeks later he was released to return to work; however, he continued to visit the doctor weekly, led "relatively an inactive life" with a good deal of bed rest, and continued his exercise program and the use of heating pads. Campbell testified that after the accident he limited his activities in almost every aspect as he was consciously aware of a constant back pain at all times. Before the accident Campbell had led an active life building the houses his family had lived in, clearing land, baling hay, water skiing, showing horses, and hunting and fishing.

In March of 1982 Campbell again entered the hospital because the pain in his back had increased to the point where it was intolerable. From March 21 to March 26 Campbell was treated with conservative therapy and then released. He was readmitted from April 2 to April 16 to undergo a lumbar laminectomy performed by a neurosurgeon. Campbell did not return to work until August of 1982.

Dr. Moses Jones, the neurosurgeon who performed the back operation, estimated that after surgery Campbell could return to eighty-five or ninety percent of his normal capacity. Campbell admitted that because of the limited physical requirements of his job he has been able to perform well at Goodrich; however, he did testify that he is always conscious of his back problems because of a fear of re-injury, that he is now unable to sleep more than four or five hours nightly, and that he has trouble sitting in one position for very long. He also testified that because of the back problems he has had to curtail a five-year-old valve refinishing business he formerly conducted on the side which does involve a good deal of heavy lifting.

The employer recognizes the applicable law regarding post-injury earnings. In Goodyear Tire & Rubber Co. v. Downey, 266 Ala. 344, 96 So.2d 278 (1957), the supreme court stated the following:

"It is insisted by the company that since the evidence shows that plaintiff, after his injury, received the same salary which he received prior thereto, that this excludes the idea that his ability to earn has been decreased as a result of his disability. While this might presumptively indicate that his ability to earn has not been impaired, the mere fact that his employer pays him the same earnings in his disabled condition as it did before he was injured is not the sole determining factor. The statute does not prescribe comparative wages received before and after the injury as the test of the employee's ability to earn. Instead, the test is the difference between the average weekly earnings at the time of the injury and the average weekly earnings the employee 'is able to earn in his partially disabled condition'. It seems to us that this clearly...