Brewton Area Young Men's Christian Ass'n, Inc. v. Lanier

• Decision Date: 17 March 2017
• Docket Number: 2150914
• Citation: 232 So.3d 887
• Parties: BREWTON AREA YOUNG MEN'S CHRISTIAN ASSOCIATION, INC. v. Georgia H. LANIER
• Court: Alabama Court of Civil Appeals

232 So.3d 887

BREWTON AREA YOUNG MEN'S CHRISTIAN ASSOCIATION, INC.

v.Georgia H. LANIER

2150914

Court of Civil Appeals of Alabama.

March 17, 2017

Ian D. Rosenthal of Rosenthal Parks LLP, Mobile, for appellant.

Charles R. Godwin and Timothy J. Godwin, Atmore, for appellee.

THOMAS, Judge.

On December 19, 2012, Georgia H. Lanier ("the employee") was preparing to leave the premises of her employer, Brewton Area Young Men's Christian Association, Inc. ("the employer"), when she fell behind her desk. The employee suffered comminuted introchanteric and subtrochanteric fractures

in her left hip. The employee sued the employer in the Escambia Circuit Court ("the trial court"), seeking workers' compensation benefits. After a trial, the trial court entered a judgment concluding that the employee's injury was compensable, determining that the employee is permanently and totally disabled, calculating the employee's average weekly wage, ordering the employer to pay medical benefits, and awarding the employee temporary and permanent workers' compensation benefits. The employer appeals.

"Our standard of review in workers' compensation cases was prescribed by the Legislature in Ala. Code 1975, § 25–5–81(e)(2). We recently set forth that standard, as well as the other applicable presumptions:

" 'When this court reviews a trial court's factual findings in a workers' compensation case, those findings will not be reversed if they are supported by substantial evidence. § 25–5–81(e)(2), Ala. Code 1975. Substantial evidence is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989). Further, this court reviews the facts "in the light most favorable to the findings of the trial court." Whitsett v. BAMSI, Inc., 652 So.2d 287, 290 (Ala. Civ. App. 1994), overruled on other grounds, Ex parte Trinity Indus., Inc., 680 So.2d 262 (Ala. 1996). This court has also concluded: "The [1992 Workers' Compensation] Act did not alter the rule that this court does not weigh the evidence before the trial court." Edwards v. Jesse Stutts, Inc., 655 So.2d 1012, 1014 (Ala. Civ. App. 1995). However, our review as to purely legal issues is without a presumption of correctness. SeeHoly Family Catholic School v. Boley, 847 So.2d 371, 374 (Ala. Civ. App. 2002) (citing § 25–5–81(e)(1), Ala. Code 1975).'

" Reeves Rubber, Inc. v. Wallace, 912 So.2d 274, 279 (Ala. Civ. App. 2005)."

Overnite Transp. Co. v. McDuffie, 933 So.2d 1092, 1095–96 (Ala. Civ. App. 2005).

The record discloses the following evidence. The employee testified that she fell behind her desk when she was preparing to leave work for the day on December 19, 2012. According to the employee, she got up from her chair, pushed the chair back, reached over to the credenza located behind her desk, and picked up a box of items that she was taking home with her. She said that as she started to move, she remembered tripping over the chair and falling; she fractured her hip in two places.¹ She testified that she had hit her head when she had fallen and that she had lost consciousness; thus, she said, she could not remember anything that occurred after the fall until the emergency medical personnel arrived, and she could remember only a few things that occurred during her transport to the emergency room but nothing from the emergency room. The employee admitted that she could not know whether the fractures had occurred before or after she had fallen.

The employee was transported by ambulance to D.W. McMillan Hospital ("the emergency room"). Records from the emergency room indicate that the employee was conscious upon her arrival and that she provided the history of the injury to the emergency-room personnel. The records do not indicate that the employee characterized the injury as work-related; however, the records indicate that the employee "fell at the Y," which, of course, is the place of her employment. After being treated in the emergency room, where the employee was given, among other things, morphine

, the employee was transferred to the Mobile Infirmary, where she underwent surgery to repair the fractures in her hip. The surgery, which was performed by Dr. Todd Engerson, required the implantation of two rods in the employee's hip area.

The employee spent just over one week in the Mobile Infirmary recuperating from the surgery. The employee was then transferred to a rehabilitation facility where she underwent physical therapy during her three-week stay. After her discharge from the rehabilitation facility, the employee continued at-home physical therapy for another six weeks. She returned to work on March 11, 2013.

According to the employee, she continued to suffer pain after the conclusion of her physical therapy. Records from Dr. Engerson reveal that the employee, after a period of improvement, indicated in June 2013 that she continued to suffer pain in her groin, buttock, and lateral thigh. Dr. Engerson commented in his notes in June 2013 that the pain the employee was suffering could have been related to both the hip surgery

and an irritation of a previous lumbar fusion surgery; he prescribed a narcotic pain reliever for the employee. Dr. Engerson's notes also mention that the employee suffered a slight limp in April 2013, but the July 2013 note does not contain any such notation.

Dr. Engerson's deposition was admitted into evidence. He testified that there was no way to tell if the employee's fractures had occurred on impact with the floor or whether they occurred because of an abnormal position of her leg as she fell. When asked whether the employee's fractures could have occurred when she simply stood up, Dr. Engerson said that it was possible. However, he went on to explain that "usually there's got to be something—some underlying process that's weakened the bone like a stress fracture

or a tumor or something like that which I don't think that she had any known problem prior to [the fall]." According to Dr. Engerson, the fractures the employee suffered typically require some degree of torque applied to the bone. He explained that "[i]t could be just a slight twist, you know, when you go forward and you twist the leg around and forces get going the wrong way and you could end up in a heap on the ground." He mentioned that a misstep or tripping over an item could result in the injury suffered by the employee. Dr. Engerson was asked whether the injury the employee had suffered could have aggravated her back condition; he answered "they [sic] certainly could." He also remarked that a gait abnormality during recovery could cause existing back conditions to exhibit symptoms, but he noted that he did not know whether the employee's back condition was asymptomatic before the fall.

In July 2013, the employee saw Dr. Clark Metzger, who had performed her previous back surgeries, for a second opinion. Dr. Metzger's July 15, 2013, notes reflect that he thought that most of the employee's pain was related to her hip injury

; he also diagnosed her with chronic pain syndrome, noting in his records that "she has relatively severe back pain, but she has had [that pain] for years." Dr. Metzger suggested that a replacement of one of the rods inserted by Dr. Engerson with a shorter rod might reduce the employee's pain. The employee chose to undergo a second surgery to replace the rod, which Dr. Metzger performed on July 31, 2013. Dr. Metzger's August 14, 2013, note indicates that the employee stated that she was "thrilled" with the outcome of the surgery, which had reduced her pain. Dr. Metzger released the employee to return to work on August 19, 2013.

The employee saw Dr. Pablo W. Concepcion at Pain Consultants of West Florida ("PC") for pain management. She was prescribed pain medications and periodic epidural injections

; she had a monthly appointment at PC. She admitted that she had been going to PC before her fall for pain resulting from her prior back surgeries. In addition, the records from PC reveal that the employee was treated for pain in areas other than her back or hips over the course of her treatment.

The employee continued to work for the employer after her surgeries. However, she testified that certain duties were added to her job requirements, including writing editorials and advertisements for the local paper and more communications-related duties. She complained that she no longer felt welcome at work and that she was often asked when she planned to retire. In January 2014, the employee notified the employer that she would retire effective May 4, 2014.

The employee explained that, at first, she did not think that her injury was work-related. She said that she had always understood that workers' compensation was for "something like maybe climbing a ladder and falling off a ladder. Or reaching for something and pulling it over on top of you." The employee said that, while she was in the rehabilitation facility, she had been contacted via telephone by a person claiming to be from the employer's workers' compensation carrier. She testified that she had asked who had reported that her injury was covered by workers' compensation; the employee said that the person on the telephone had told her that Steven Dickey, the CEO of the employer, had contacted the carrier to report the accident.

According to the employee, her supervisor, Cathy Green, had told her that her fall was not covered by workers' compensation. The employee testified that she had gone to the office to collect her paycheck one day and that Green had told her that the accident was not a work-related accident and that the employee "did not want to file on work[ers'] comp because it would cause the [employer's] premium to go up." The employee also said that Green had told her that the employer would take care of her. Thus, the employee testified, she had informed the...