Defense Ordinance Corp. v. England

• Decision Date: 01 May 1974
• Citation: 52 Ala.App. 565,295 So.2d 419
• Parties: DEFENSE ORDINANCE CORPORATION, a corporation v. William P. ENGLAND. Civ. 306.
• Court: Alabama Court of Civil Appeals

Page 419

295 So.2d 419

52 Ala.App. 565

DEFENSE ORDINANCE CORPORATION, a corporation v. William P. ENGLAND.

Civ. 306.

Court of Civil Appeals of Alabama.

May 1, 1974.

Simmons, Torbert & Cardwell, Gadsden, for appellant.

Robert H. King, Gadsden, for appellee.

HOLMES, Judge.

Review is had in this matter by writ of certiorari from the Circuit Court of Etowah County, Alabama. Suit was filed by appellee-England, the employee, against appellant-Defense Ordinance Corporation, the employer, under the Alabama Workmen's Compensation Law, Ala.Code, Tit. 26, § 253 et seq. (1940). The trial court entered a finding for employee of temporary total and permanent partial disability and made awards accordingly. Thereafter, the employer filed a motion for a new trial which was denied by the trial court.

Both parties stipulated that the appellee was an employee of the appellant at the time of his injury and that both appellant and appellee were bound by the Workmen's Compensation Law of Alabama when the injury occurred. The parties also stipulated that the appellant received notice of appellee's injury and sent him to a doctor for treatment.

Tendencies of the evidence reveal the following:

Appellee was employed by appellant as a millwright performing maintenance, rebuilding, and repairing machines. Appellee has a high school education and worked at a parts and machine company upon graduation. He testified this is the only type work he has done for 16 years.

On July 23, 1971, appellee was removing an electric motor from a machine when it slipped jerking him forward. Appellee testified that he had 'a real bad hurting in my back and down my right leg and it made me real sick in the stomach when it happened.' The employer sent appellee to Dr. Ted Cross who later referred him to Dr. Philip Williams, an orthopedic surgeon. Dr. Williams testified that appellee had evidence of acute severe pain along the course supplied by the sciatic nerve involving the right leg. The doctor diagnosed and a myelogram showed appellee to have a ruptured lumbar disc at the interspace between the fourth and fifth lumbar vertebra on the right side of the spine. Dr. Williams stated he performed surgery on appellee consisting of a lumbar laminectomy and removal of ruptured disc material.

The doctor testified appellee became ambulatory after surgery without difficulty and he was discharged from the hospital some seven days after surgery. Three weeks after the discharge, the doctor saw appellee again and felt he was doing well and showed no apparent evidence of pain in his back or leg. Appellee came back to the doctor approximately two weeks later complaining of pain in the area of the lower end of the incision and pain in his hips. The doctor interpreted this as scar tissue pain. Appellee returned approximately a month and a half later and reported soreness but the doctor evaluated him as doing well. The doctor last saw appellee on December 10, 1971, and evaluated him as being ambulatory without difficulty. He testified that appellee, on his last visit, complained of a little soreness in his low back.

The doctor released him to return to his job as of December 11, 1971, and discharged him from further follow-up care.

The doctor testified that as of the time he released appellee, he had a permanent impairment of function of his low back amounting to five percent based on the body as a whole. In response to a hypothetical situation regarding appellee's ability to lift weights, the doctor testified that, in general, patients who have undergone the same surgical treatment as appellee sustain some limitation of function of the lower back; that they may lose a certain amount of terminal motion and experience inability to tolerate extremes of stress by the low back.

Appellee testified as follows regarding his injury after the operation: The scar on his back is approximately 6 inches long (the judge observed appellee's back); he couldn't perform any of his former work as a millwright; he went back to work as a supervisor and worked odd hours depending upon how he felt; he feels bad and has to walk a lot because his back is stiff; it pains him to walk and he cannot walk as fast; he can't bend over or lift or carry weight and objects lake he used to; his back hurts him 'all the time'; he has a dead spot in the center of his back; his right leg hurts; he is only able to sleep for 2 or 3 hours at a time and them must get up and walk because his back hurts; this occurs every night; at times his right leg goes numb and he has no feeling in it; he is nervous and his hands shake all the time; he takes Darvon, Anacin and Excedrin for pain.

Appellee testified he has applied for jobs but cannot get one because of his injury.

John Newman, former manager of the Alabama State Employment Service in Gadsden, testified he had worked 39 years with the Alabama State Employment Service and had recently retired. He testified that his duties had been to take applications from people wanting work and to try and find them jobs based upon their prior experience, education, and physical ability. Newman stated he had been in the Gadsden area since 1945 and was familiar with the work and physical requirements of various industries in the area. Newman recalled an interview he had with appellee concerning his work history, injury, and application for a job while he was manager of the employment service. He stated that he has made feasibility studies of employment of people with a disability and has continuously attended various seminars on the subject. Newman testified that, in his judgment, appellee had an employability limitation of eighty-five to ninety percent.

Dr. John Seymore, a Ph.D., whose graduate specialties are in the field of counseling and guidance, was called to testify on behalf of appellant. He testified his experience has enabled him to be familiar with requirements of jobs of various industries and employers throughout Alabama, and that he has done numerous vocational surveys in Alabama and Mississippi which have enabled him to ascertain these requirements. Upon being asked by appellant's attorney a hypothetical question for his judgment as to whether there would be any type of employment on the Alabama labor market available to appellee considering his education, training, and a five percent partial impairment to the body as a whole, Dr. Seymore testified that, in his judgment, a wide range and variety of jobs would be available. On cross-examination, based upon a hypothetical by appellee's attorney involving the injuries and pain of which appellee testified, Dr. Seymore testified available jobs would be very limited.

The trial court ordered appellee examined by Dr. William Warren, a neurosurgeon, who testified he examined appellee and found him to have normal curve of his lumbar spine and no spasm of muscles along his spine which normally is present in those people with back trouble. The doctor testified appellee had sensory changes, decrease in pain, touch and vibratory sense all over the right extremities, upper and lower, and also his trunk, but his position sense and stereognosis were intact. Dr. Warren stated he thought appellee had a good recovery from the back operation, and that he couldn't see any neurological reason why he couldn't go about his business. He also stated he didn't believe the alleged nervousness of appellee came as a result of the back injury. On cross, in answer to appellee's question whether appellee has any disability at all as a result of his injuries, Dr. Warren said he probably had a disability, but that it was psychological rather than neurological.

The trial court made a finding for the plaintiff-appellee of temporary total disability for a period of 64 weeks at different times from the date of his injury, July 23, 1971, to May 10, 1973. The court further found that plaintiff-appellee has a thirty-five percent permanent partial disability to his body as a whole to such an extent that his ability to earn a livelihood is impaired thirty-five percent or that his disability will continue to exist for a period exceeding the statutory period for which workmen's compensation is payable. The lower court further found that plaintiff-appellee had a wife and two children dependent upon him and that his average weekly earnings were $200 per week or that such finding is at least fair to the employer.

In accord with the above findings, the trial court awarded plaintiff-appellee temporary total disability for 64 weeks at the rate of $50 per week; permanent partial disability for 41 weeks at $45.50 per week; and for future disability permanent partial benefits of $45.50 per week for 195 weeks.

At the outset, this court would like to call to the attention of the parties, for use as they deem appropriate, the legislative intent of our workmen's compensation law. The policy of the statute is to conduct the proceedings in the shortest order consistent with the due administration of justice. Wetter Pipe Co. v. Williams, 223 Ala. 220, 135 So. 172; Semmes Nurseries, Inc. v. McVay, 279 Ala. 42, 181 So.2d 331. See 19A Ala.Dig., Workmen's Compensation, k 46. We further observe that liberal construction of the workmen's compensation law has been favored to effectuate its purposes and eliminate procedural technicalities. See 19A Ala.Dig., Workmen's Compensation, k51, and cases cited therein.

Appellant, by assignments of error 43 and 44, urges the lower court erred to reversal in that it failed to make a finding of law and fact as required by Ala.Code, Tit. 26, § 304 (1940).

The rule is well established that where the trial court completely fails to comply with the above cited provisions, the judgment of the trial court must be reversed. Bass v. Cowikee Mills, 257 Ala. 280, 58 So.2d 589; Richardson Lumber Co. v. Pounders, 254 Ala. 285, 48 So.2d 228. However, it has been held that a substantial compliance will suffice. Calvert v. Funderburg, ...