Cook v. Munn
| Decision Date | 15 June 1988 |
| Citation | 528 So.2d 881 |
| Parties | Wayne COOK and Maryland Casualty Insurance Company v. Phillip Keith MUNN. Civ. 6456. |
| Court | Alabama Court of Civil Appeals |
Arthur F. Fite III of Merrill, Porch, Doster & Dillon, Anniston, for appellants.
Wilford J. Lane, Anniston, for appellee.
The former employer (defendant) appealed from an adverse decision in a workmen's compenation case and raises two issues through able counsel: (1) a lack of legal evidence to support the trial court's finding of a 30% permanent partial loss of the employee's ability to earn and (2) an evidentiary issue.
This is the second appeal of this case. Our first opinion is reported in Cook v. Munn, 521 So.2d 1341 (Ala.Civ.App.1988).
The trial was held before the circuit court in June 1987.
The employee was born in 1960. He completed the ninth grade in school and failed the tenth. His employment history is one which involves physical labor.
While performing his regular duties for the defendant, the employee ruptured his left groin on February 1, 1985. As a result, his first hernia operation was on March 18, 1985, but that same rupture reappeared on three different subsequent occasions, which resulted in additional hernia surgery being performed on him in January, June, and December 1986. In short, he had four hernia operations which resulted from the February 1, 1985, job injury.
The employee testified that he still has constant pain. When he bends over or walks a lot, he still feels a "whole lot" of pain. His leg and side bother him when he reclines, and he has trouble sleeping at night. When he sits, he is troubled by the net which the doctor placed in his side. He further testified as follows:
He testified that after the injury, he could not keep a job for long because of his hernia. He worked on a sod farm after he was released to resume his normal activities and duties by the surgeon who was furnished by the defendant, but the employee was soon laid off because he could not perform his job since using a farm tractor bothered him "so bad." He ceased to work with a pest control company because of problems created by crawling on his hands and knees underneath houses and being constantly bent over. He has co-driven an eighteen wheeler rig on cross-country hauls, but bouncing up and down in the truck all of the time created pain. He no longer drives that truck because the truck's owner ceased leasing it.
Dr. Foss, a general surgeon who was provided by the defendant or the defendant's insurance carrier, performed the first, second, and fourth hernia operations upon the employee. While he stated that the employee's prognosis is good in his judgment and that he had released the employee to perform his normal duties, the surgeon further testified that it is conceivable that the employee is still having continuing and ongoing pain and that it is possible that the employee will have a further reoccurrence of the hernia because of the employee's "awful track history."
Dr. Hark has a Ph.D. in psychology and is a licensed psychologist in Georgia and Alabama. He administered certain tests to the employee. The employee's full scale I.Q. was 82, which is higher than only about 15% of the people in his age group. His grade levels for various subjects were as follows: reading, sixth grade; spelling, third grade; and arithmetic, fifth grade. In the psychologist's opinion the employee "just isn't a well-educated person, and he's not very bright."
Dr. Hark further testified that there is a suggestion in the depositions which were provided to him that the employee should only do light lifting. While no physician had said that the employee could not lift more than twenty pounds, which is a matter within the field of the physicians and which is not within the psychologist's field, he assumed that the employee should not lift over twenty pounds. He reached that conclusion from his own assumption and from his "own knowledge over what would be a realistic limitation for someone who has had multiple hernia repairs." It was the psychologist's opinion or conclusion that, with a twenty-pound lifting limitation, the employee would be capable of working no more than 10% to 15% of those jobs that exist in the economy that he would be eligible for, that he could compete for.
To that 10% to 15% opinion, the defendant later...
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Patterson v. Clarke County Motors, Inc.
...court on certiorari, and, therefore, our standard of review is very narrow and does not allow us to weigh the evidence. Cook v. Munn, 528 So.2d 881 (Ala.Civ.App.1988). Our review of the judgment before us is limited to ascertaining whether any legal evidence or reasonable inference therefro......
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Russell Coal Co. v. Williams
...cases come before us on certiorari, our standard of review is very narrow and does not allow us to weigh the evidence. Cook v. Munn, 528 So.2d 881 (Ala.Civ.App.1988). Our review of the judgment in this case is limited to ascertaining whether any legal evidence or reasonable inference theref......
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Wiley Sanders Truck Lines, Inc. v. McLain
...This court cannot, and does not, weigh the evidence on appeal or make any determinations as to the sufficiency thereof. Cook v. Munn, 528 So.2d 881 (Ala.Civ.App.1988). If any legal evidence supports the trial court's findings, we must affirm. Padgett v. International Paper Co., 470 So.2d 12......
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Ex parte Alabama Ins. Guar. Ass'n
...case has considerable discretion in determining an employee's percentage of disability or loss of earning ability. Cook v. Munn, 528 So.2d 881 (Ala.Civ.App.1988). We would note that the trial court would not have been bound by the testimony of Dr. Lyons, even if his testimony was uncontrove......