City of Gadsden v. Scott

• Decision Date: 29 October 2010
• Docket Number: 2090567.
• Citation: 61 So.3d 296
• Parties: CITY OF GADSDENv.Lawrence SCOTT.
• Court: Alabama Court of Civil Appeals

61 So.3d 296

CITY OF GADSDEN

v.Lawrence SCOTT.

2090567.

Court of Civil Appeals of Alabama.

Oct. 29, 2010.

Howard B. Warren of Turnbach, Warren, Roberts & Lloyd, P.C., Gadsden, for appellant.Daniel B. King of King & King Attorneys, P.C., Gadsden, for appellee.MOORE, Judge.

The City of Gadsden (“the City”) appeals from a judgment of the Etowah Circuit Court (“the trial court”) awarding worker's compensation benefits to Lawrence Scott. We reverse.

Relevant Facts

Scott was born on March 25, 1950, and was 59 years old at the time of the trial. According to Scott, he began working as a police officer for the City in November 1976. On or about August 21, 2001, Scott participated in an in-service training exercise involving restraint maneuvers. When a maneuver was performed on Scott by Barry Thomas, Scott's right wrist made a popping sound. Scott testified that he had joked with Thomas that Thomas had broken Scott's hand but that Scott had not really thought it was broken, although it did hurt. Scott did not report the injury to the City at that time. Scott stated that he had had some discomfort and swelling from the injury around the time the incident had occurred but that he “got over” that injury and continued to perform his normal work duties for the City.

According to Scott, he began having some pain and discomfort in his right wrist in 2004, and he visited his doctor, Dr. Kenny Smith, regarding the problems he was having with his wrist around that time. Dr. Smith testified in his deposition that, based on his notes, Scott had complained about his right wrist in April 2004. Dr. Smith stated that, at the April 2004 visit, he had x-rayed Scott's wrist and had diagnosed Scott with arthritis. Dr. Smith stated that, according to his notes from June 21, 2004, Scott was unable to identify an injury that would account for the pain in his right wrist and that an X-ray revealed that Scott had a space between two bones in his wrist, or a “widening of the scaphoid lunate disk.” Scott testified that, after his wrist became more painful in June 2004, Dr. Smith referred Scott to Dr. William Stewart, an orthopedic surgeon. Scott stated that Dr. Smith had scheduled more than one appointment for him with Dr. Stewart before he actually visited Dr. Stewart for the first time because, Scott stated, he “didn't want to get cut or anything.”

Dr. Stewart's notes, dated October 1, 2004, reveal that Scott described the incident that had occurred on August 21, 2001, to Dr. Stewart; that Scott stated to Dr. Stewart that he had “felt something pop and hurt real violently on the dorsal aspect of his right wrist” at that time; that his wrist had “swelled up and bothered him a pretty good bit at the time but it seemed like it calmed down at a later point”; and that “[a]fter that it continued to act up and it has continued to bother him now to a worsening degree.” Dr. Stewart further stated in his October 1, 2004, notes that Scott has “probably got a proximal row carpal instability from an old ligament injury and is no[w] beginning to produce some arthritic changes.” Dr. Stewart's notes, dated October 15, 2004, reveal that Dr. Stewart determined that Scott had “radial carpal joint proximal row disruption,” “widening of the scaphoid lunate gap on the dorsal view” of his right wrist, and “narrowing of the articular cartilage at the proximal carpal row.” Dr. Stewart's notes further stated that Scott “has so much swelling on the under surface of the wrist that he is developing a carpal tunnel syndrome.... This would clearly be secondary to the trauma of the original injury.” Dr. Stewart's notes, dated November 1, 2004, state that Scott “does have a carpal tunnel syndrome which is probably secondary to his pathology of the wrist.”

According to Scott, Dr. Stewart performed an MRI on Scott and informed Scott that he had bones separated in his wrist. Dr. Stewart performed surgery, or a “proximal row fusion with a carpal tunnel release,” on Scott's right hand/wrist on November 17, 2004; Scott testified that his regular health insurance paid for that surgery. According to Scott, Dr. Stewart operated on the top and the bottom of his hand and put a “spider plate” in his hand. Dr. Stewart performed a second surgery, i.e., a “radial styloidectomy,” on Scott's right wrist on March 14, 2005. Scott also testified that the spider plate Dr. Stewart had placed in Scott's hand became loose and that Dr. Victoria Masear, a hand specialist, had performed surgery on his wrist on March 30, 2006, and had removed the screws from that spider plate. Scott testified that he had not been back to visit Dr. Stewart or Dr. Masear in two or three years at the time of trial.

Scott submitted his first report of injury to the City on December 13, 2004. In that report, Scott stated that the injury had occurred on or about August 21, 2001, that his disability began on November 17, 2004, and that he had notified the City on November 24, 2004. Scott testified that, once his claim was reported to the City, someone had telephoned him to investigate the circumstances of the incident and, Scott said, his statement had been recorded. The City submitted a transcription of that statement at trial. Scott began receiving retirement benefits beginning August 1, 2005. Janice Crim, the director of risk management for the City, testified that Scott had received disability retirement. Scott testified, however, that he was eligible for regular retirement because he had worked for the City for over 25 years.

Scott testified that he had not missed a day of work because of his right-hand and wrist problems until November 16, 2004. Scott testified that, by the time of his last day of work in November 2004, he was a Field Sergeant. According to Scott, his duties at that position included arriving to a shift early and assigning beats and completing all the payroll and overtime slips for everybody on that shift. He stated that his job required him to use his right hand repetitively on a daily basis.

An office note dated June 1, 2005, of Dr. Michael K. Morris, a doctor of osteopathic medicine, which was submitted into evidence, stated that Scott had sustained an injury to his wrist; Dr. Morris opined at that time that he was concerned that Scott's physical limitations could place him and his fellow officers in potential danger. Dr. Morris noted further that, in his opinion, Scott could not “perform all the essential job duties expected of him as a police officer.”

Procedural History

Scott filed a complaint against the City and a number of fictitiously named defendants on November 16, 2006, requesting worker's compensation benefits from the City. The City filed an answer on December 8, 2006, asserting a number of affirmative defenses; specifically, the City asserted, among other things, that the applicable statute of limitations had run; that Scott had failed to comply with the notice requirements of the Workers' Compensation Act (“the Act”), § 25–5–1 et seq., Ala.Code 1975; and that the City was claiming a setoff pursuant to § 25–5–57(c), Ala.Code 1975. The City filed a motion for a summary judgment on August 21, 2008; that motion was denied on April 1, 2009.

A trial was held on November 10, 2009. On November 17, 2009, the trial court entered an order finding that Scott had “suffered a compensable injury to a scheduled member—his right hand,” overruling the City's objections based on the statute of limitations and the lack of notice, denying Scott's claim that he is permanently disabled under the Act, and ordering both parties to submit proposed final judgments within 20 days of the entry of the order. On December 29, 2009, the trial court entered a judgment denying the City's defense that the statute of limitations had run; denying Scott's claim that he has a 100% impairment to his right hand; denying Scott's claim that he was “temporarily totally disabled”; finding that Scott had suffered a cumulative-stress injury to his right hand that had resulted in a 75% impairment to his right hand; ¹ ordering that court costs be paid by the City; finding the City responsible for all Scott's medical, surgical, prescription, vocational, and other expenses in regard to his injury as set out in § 25–5–58, Ala.Code 1975; ordering that Scott's attorney's fees amounting to 15% of his recovery be paid in a lump-sum amount; and ordering the City's attorney to prepare an amended judgment setting out the moneys due Scott and Scott's attorney.

The trial court entered an amended judgment on January 11, 2010, which awarded Scott $28,050 in lump-sum disability benefits; awarded an attorney's fee of $4,207.50, payable from Scott's award; allowed Scott's attorney to deduct from Scott's award the reasonable cost of case preparation; and taxed costs as paid. The City filed a motion to alter, amend, or vacate the judgment on January 21, 2010, reasserting its arguments regarding the statute of limitations, notice, and its entitlement to a setoff and asserting that there were no facts recited in the trial court's judgment supporting the conclusions therein. On February 1, 2010, the trial court entered a second amended judgment that included findings of fact and conclusions of law. In that second amended judgment, the trial court determined, among other things, that

“there is in fact clear and convincing evidence that as a direct and proximate result and consequence of the work that [Scott] performed for the [City] as a police officer, involving the repetitive use of his right hand, [Scott] suffered severe permanent cumulative stress right carpal tunnel injuries, with the last date [Scott] suffered same was on November 16, 2004, that caused him such constant and severe pain that in fact he suffered a 75% loss of the use of his right hand.”

The trial court further determined that Scott should be compensated under § 25–5–57(a)(3)a.12., Ala.Code 1975, for the total loss of use of his right hand, that Scott was...