DeHart v. Ideal Basic Industries, Inc.

• Decision Date: 19 February 1988
• Citation: 527 So.2d 136
• Parties: Gene DeHART v. IDEAL BASIC INDUSTRIES, INC. Civ. 5996.
• Court: Alabama Court of Civil Appeals

Page 136

527 So.2d 136

Gene DeHART v. IDEAL BASIC INDUSTRIES, INC.

Civ. 5996.

Court of Civil Appeals of Alabama.

Feb. 19, 1988.

Rehearing Denied March 23, 1988.

Certiorari Denied June 24, 1988

Alabama Supreme Court 87-766.

Stephen J. Flynn of Flynn & Huey, Mobile, for appellant.

Marion R. Vickers, Jr., of Vickers, Riis, Murray and Curran, Mobile, for appellee.

HOLMES, Judge.

This is a workmen's compensation case.

After a trial on the merits, the trial court found that the employee had sustained a permanent partial disability and had suffered a fifteen percent permanent loss of his ability to earn.

The employee appeals, and we affirm.

The employee contends that his loss in earning capacity is greater than that determined by the trial court.

The dispositive issue, therefore, is whether there is any evidence to support the trial court's finding that the employee's earning capacity had been reduced by only fifteen percent as a result of the injury caused by his work-related accident.

In Grumm v. Neptune Meter Co., 472 So.2d 1067, 1068-69 (Ala.Civ.App.1985), we stated the following with respect to the appropriate standard of review in workmen's compensation cases:

"A workmen's compensation case is reviewable by writ of certiorari. Suit v. Hudson Metals, Inc., 414 So.2d 115 (Ala.Civ.App.1982). On appeal, review is limited to whether there is any legal evidence present to support the trial court's findings. Young v. City of Huntsville, 342 So.2d 918 (Ala.Civ.App.1976). A review of the weight of the evidence or the trial court's finding of fact is not properly before this court. Suit v. Hudson Metals, Inc., supra. If there is any legal evidence to support the trial court's findings, we must affirm the court's judgment. Allen v. Diversified Products, 453 So.2d 1063 (Ala.Civ.App.1984).

"In arriving at its judgment, the trial court may consider all the evidence, including its own observations, and interpret it according to its own best judgment. Allen v. Diversified Products, supra. The trial court is not bound by the opinion of expert witnesses, even if their testimony is uncontroverted. Clark Lumber Co. v. Thornton, 360 So.2d 1019 (Ala.Civ.App.1978). A trial court may make a finding regarding the percentage of permanent disability without expert testimony. Bankhead Forest Industries, Inc. v. Lovett, 423 So.2d 899 (Ala.Civ.App.1982). Findings of the trial court on conflicting testimony are conclusive where there is any testimony supportive of those conclusions. Suit v. Hudson Metals, Inc., supra. The determinations of the percentage disability and the percentage loss of ability to earn are for the trial court, and if there is any legal evidence to support them, we must affirm, because we do not consider the weight of the evidence. Allen v. Diversified Products, supra."

After a review of the record, we find that there is evidence to support the trial court's conclusion that the employee suffered a fifteen percent loss in his ability to earn.

The record shows that the employee suffered an injury to his back while in the course of his employment as a millwright that is, in this instance, one who does heavy machine repair. He was approximately fifty-two years old at the time of the accident and had worked as a millwright for several different companies since 1957. When he suffered an injury to his back while moving a heavy metal plate on or about December 28, 1983, he had been doing heavy machine repair for that employer for approximately two years. Before his injury he was earning in the neighborhood of $650 per week.

The record supports the employee's assertion that he immediately reported his injury to his superior, but he did not seek medical assistance until February 14, 1984, when he visited a chiropractor who diagnosed his condition as follows:

"The patient has sustained a Right Sacroilliac Fixation and a Piriformus Muscle Spasm, complicated by a previous injury to the lower back. This injury is accompanied by ligamentous instability and tearing, myofascial residuals, and localized evidence of nerve root irritation. These injuries are usually of a temporary nature depending on the amount of joint and ligamentous damage." (Emphasis supplied).

That chiropractor took the employee off work as a result of the above diagnosis and engaged in conservative treatment of the employee until he discharged him to return to work on March 16, 1984. The chiropractor reported that the discharge was upon the employee's request to return to work, even though the chiropractor did not think he was completely healed as of that date.

The employee returned to work, but continued to have pain and went to see an orthopedic surgeon on March 23, 1984. That doctor diagnosed the employee's condition as being symptomatic of "bulging discs" at two places in his spine. He also testified pertinently as follows:

"Lumbar disc symptoms don't start with a one-time heavy lifting episode like that. Here is a guy with a weak back, already has had a laminectomy and surgery on his back anyway. He has got a progressive problem where you get wear and tear like wear on car tires. It happens from however many number of years he was working, which is a contributing factor, and however many number of years he has been alive, whether he does--what he does on his own time affects his back.

"....

"Basically, as far as I'm concerned, and I think it is most orthopedists' and neurosurgeons' opinion, degenerative disc disease of the lumbar spine is...