Collins v. Westmoreland

• Decision Date: 07 June 1991
• Citation: 600 So.2d 253
• Parties: Jerry COLLINS v. Clayton J. WESTMORELAND. 2900121.
• Court: Alabama Court of Civil Appeals

Page 253

600 So.2d 253

Jerry COLLINS v. Clayton J. WESTMORELAND.

2900121.

Court of Civil Appeals of Alabama.

June 7, 1991.

Rehearing Denied July 5, 1991.

Certiorari Quashed June 26, 1992

Alabama Supreme Court 1901602.

Howard B. Warren of Turnbach & Warren, Gadsden, for appellant.

Daniel B. King of King & King, Gadsden, for appellee.

RUSSELL, Judge.

After an ore tenus proceeding in this workmen's compensation case, Clayton J. Westmoreland (employee) was determined to be permanently and totally disabled as the result of an injury which occurred while in the employ of Jerry Collins (employer). The average weekly earnings were calculated by the trial court based on what it determined was an agreement between the parties at the time of hiring that the employee would work a five-day work week at $60.00 per day. The employer appeals. We affirm in part and reverse in part.

The dispositive issues are whether the trial court erred in computing the employee's average weekly wage and whether the trial court erred in finding the employee permanently and totally disabled.

Our standard of review in a workmen's compensation case is a two-step process. "Initially, the reviewing court will look to see if there is any legal evidence to support the trial court's findings. If such evidence is found, then the reviewing court determines whether any reasonable view of that evidence supports the trial court's judgment." Ex parte Eastwood Foods, Inc., 575 So.2d 91, 93 (Ala.1991).

The record reveals that the employee worked for the employer from June 1985 through mid-February 1986, that he quit that job, and that he then returned to work for the employer at the end of June 1986. His last term of employment with the employer was approximately four months. At the time of the hearing, the employee was twenty-eight years old and had completed the eighth grade in school. He was employed in the pulpwood business and had previously worked as a gas station attendant, a carpenter's helper, and as a general laborer in a saw mill. He also built plaques and trophies. He was injured when, while working for the employer, he cut down a tree and a tree limb hit his left shoulder.

Subsequently, in an attempt to correct the employee's shoulder problems, a neurosurgeon performed four separate surgeries on the employee's left shoulder. The neurosurgeon gave a medical impairment rating of 40% to the upper extremity and 20 to 24% to the body as a whole.

A vocational expert testified that he had observed a tremor in the employee's left arm and that the patient has a problem using his right arm, because it puts pressure and causes pain in the injured left arm. He also testified that the employee has a 60% permanent vocational disability rating and is functionally illiterate and that he doubted that anyone would hire the employee.

The employee testified that he has constant severe pain, that walking causes pain, that therapy caused pain and he was not able to do it, and that he is depressed because of his condition and has trouble being around people.

The employer's bookkeeper, who is also the employer's wife, testified that the employee was paid $60 per day for the days that he worked and that he was hired to work five days a week, but that that rarely happened because of rain, breakdowns, and illness.

The employer first contends that the trial court erred in computing the employee's average weekly wage, in that, he claims, the trial court did not follow the dictates of § 25-5-57(b), Ala.Code 1975. We agree.

In its order, the trial court determined the weekly wage of the employee as follows:

"Carolyn Collins, wife of Defendant/Employer Jerry Collins testified the [employee] was paid $60.00 per day for the days he worked. He was hired to work on a five day work week if they had the business. Defendant's Exhibit No. Two reflected that, prior to the injury, the [employee] was paid an average weekly wage of $180.30. The [employee] worked for the Defendant/Employer intermittently during a four month period preceding the injury. The question then comes to the intent of the parties as to the wages of the [employee]. He was hired at the rate of $60.00 per day to work a five day work week. The facts of bad weather, problems with vehicles, and lack of work should not prevent the [employee's] average weekly wage from staying at $300.00 per week. The undersigned finds the average weekly earnings of the [employee] to be $300.00."

Section 25-5-57(b) states regarding the computation of compensation that:

"Compensation under this section shall be computed on the basis of the average weekly earnings. Average weekly earnings shall mean the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury divided by 52, but if the injured employee lost more than seven consecutive calendar days during such period, although not in the same week, then the earnings for the remainder of such 52 weeks shall be divided by the number of weeks remaining after the time so lost has been deducted."

If the employment was for less than 52 weeks, the method of calculation is as follows:

"Whereas the employment prior to the injury extended over a period of less than 52 weeks, the method of dividing the earnings during that period by the number...