Ex parte American Color Graphics, Inc.

• Decision Date: 24 May 2002
• Citation: 838 So.2d 385
• Parties: Ex parte AMERICAN COLOR GRAPHICS, INC. (In re American Color Graphics, Inc. v. Rayfield Foster.)
• Court: Alabama Supreme Court

838 So.2d 385

Ex parte AMERICAN COLOR GRAPHICS, INC.

(In re American Color Graphics, Inc. v. Rayfield Foster.)

1010180.

Supreme Court of Alabama.

May 24, 2002.

Barry V. Frederick and William D. Jones III of Johnston, Barton, Proctor & Powell, L.L.P., Birmingham, for petitioner.

Oscar H. Hale, Jr., and Ashley Hale Rives of Hale & Associates, Montgomery, for respondent.

PER CURIAM.

This case concerns the nature and extent of an on-the-job back injury Rayfield Foster sustained while he was working for American Color Graphics. The Court of Civil Appeals affirmed the trial court's judgment finding that Foster had suffered a permanent total disability under the Workers' Compensation Act. American Color Graphics, Inc. v. Foster, 838 So.2d 374 (Ala.Civ.App.2001). We reverse.

Facts

Rayfield Foster injured his back on August 22, 1997, while working at American Color Graphics ("ACG"); he had worked for ACG for over 20 years. As a result of the injury, Foster received temporary disability benefits for 28 weeks. Foster sued ACG on April 7, 1999, seeking permanent disability benefits. The issue at trial concerned the nature and extent of Foster's disability.

A CAT scan performed after the injury revealed a large herniated disk in Foster's back. Dr. Randolph George, a neurosurgeon, performed surgery to repair the herniated disk. Over the next several months Foster made several visits to Dr. George, complaining of pain in his left leg and other places, but Dr. George was unable to pinpoint a medical reason for the pain; he determined that Foster was capable of working again. Physical therapist Vicki Patrick performed a functional-capacity evaluation of Foster in February 1998 and concluded that Foster could perform a "limited medium level of work" at that time. An occupational therapist, Joe Willard, performed another functional-capacity evaluation on Foster in February 1999; the result of that evaluation was a finding that Foster fit "very well within the medium to even heavy work classification."

After he filed the underlying action, Foster visited Dr. Walid Freij, Dr. Robert Allen, and Dr. Philip Golomb, all of whom concluded that Foster was physically incapable of working. He also visited two psychologists, Dr. Paul Van Wyk and Dr. Donald Blanton; based on one visit, they each found Foster to be too depressed to work. Each of these physicians and psychologists prepared reports on their evaluations of Foster; those reports were submitted to the court.

Before trial, ACG filed a motion in limine to prevent Foster from introducing into evidence the records of the three doctors and two psychologists Foster visited after he filed this action, as well as the testimony of Foster's vocational expert, on the grounds that that evidence constituted inadmissible hearsay. The trial court reserved ruling on the motion in limine until the evidence was offered at trial. At trial, ACG again objected to the introduction of the evidence, but the trial court allowed the evidence to be admitted, reserving the right to exclude it, if necessary, at a later time.

At the conclusion of Foster's case-in-chief and again at the conclusion of all of the evidence, ACG presented an original and a renewed motion for a judgment as a matter of law. The trial court rejected the first motion, but took the renewed motion under advisement. Eventually, however, the trial court issued an order admitting the evidence and finding that Foster had suffered a permanent total disability for which he was entitled to workers' compensation benefits.

Foster's attorney presented the findings of the doctors and psychologists who had evaluated Foster in the form of certified records, not through testimony. Foster's vocational expert, Dr. Michael McClanahan, testified at trial. Foster's attorney asked Dr. McClanahan to express his opinion about Foster's disability based upon those certified records.

The Court of Civil Appeals held that the trial court erred in admitting those medical records, but nonetheless in a 3-2 decision affirmed the trial court's finding that Foster was entitled to permanent-total-disability benefits, concluding that the admission of the records was "harmless error." 838 So.2d at 384. The Court of Civil Appeals explained that result by saying that Dr. McClanahan "demonstrated enough independent judgment regarding his own evaluation of Foster to justify the admission of his testimony into evidence." 838 So.2d at 384.

ACG contends that the Court of Civil Appeals' affirmance of the trial court's holding that Foster is entitled to permanent-total-disability benefits conflicts with that court's decision in Odell v. Myers, 52 Ala.App. 558, 295 So.2d 413 (1974), because ACG believes that the Court of Civil Appeals did not properly weigh the evidence after it held that the medical records offered by Foster should not have been admitted. Specifically, it argues that Odell held that a reversal is required where illegal evidence is improperly admitted, unless the remaining evidence is without conflict and supports the trial court's holding. See Odell, 52 Ala.App. at 562, 295 So.2d at 415. In this case, the remaining evidence did contradict the finding that Foster had suffered a permanent disability, ACG contends, and consequently, the Court of Civil Appeals should have reversed the trial court's judgment in favor of Foster.

In support of its holding, the Court of Civil Appeals cited Rule 45, Ala. R.App. P. Rule 45 provides:

"No judgment may be reversed or set aside, nor new trial granted in any civil... case on the ground of ... the improper admission ... of evidence, ... unless in the opinion of the court to which the appeal is taken ..., after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected the substantial rights of the parties."

The Court of Civil Appeals stated that it did not believe the admission of the inadmissible evidence "`probably injuriously affected the substantial rights of the parties,' " because it believed that Dr. McClanahan had "sufficient personal knowledge of Foster's situation to justify the admission into evidence of his testimony." 838 So.2d at 381.

Analysis

Initially, we note that the Alabama Workers' Compensation Act, § 25-5-50 et seq., Ala.Code 1975, provides that an appellate court's review of the proof and consideration of other legal issues in a workers' compensation case shall be without a presumption of correctness. See § 25-5-81(e)(1), Ala.Code 1975. The Court of Civil Appeals found that the trial court's admission of the medical records prepared by the three doctors and two psychologists Foster's attorney sent Foster to was error. The Court of Civil Appeals concluded that several of the records were not properly certified according to § 25-5-81(f), Ala.Code 1975, and Rule 44(h), Ala. R. Civ. P. See American Color Graphics, 838 So.2d at 384. It found other of the records inadmissible because they were not sealed, as is required by § 25-5-81(f)(4). 838 So.2d at 384. One of the medical records was properly certified and sealed, but it failed to qualify under the "business-records exception" of the hearsay rule, Rule 803(6), Ala. R. Evid., because the court found that it appeared to have been prepared solely in anticipation of litigation.¹American Color Graphics, 838 So.2d at 384. We find no fault with these conclusions by the Court of Civil Appeals.

Aside from those records, Foster's only other evidence of permanent total disability was the testimony of Dr. McClanahan, who relied for the most part on the improperly admitted medical records to form his opinion. The record shows that Dr. McClanahan's testimony that Foster was totally disabled was not based on his independent findings. He never provided that testimony without referring to the medical records that had been erroneously admitted into evidence, nor did he express an independent opinion on Foster's disability status based upon his evaluation of Foster. Moreover, Dr. McClanahan is not a medical doctor, a psychologist, or a psychiatrist. He holds a Ph.D. degree in rehabilitation services; thus, he was not qualified to render an expert medical opinion as to the extent of Foster's disability, nor did Foster claim at trial that Dr. McClanahan was qualified to do so. All of the tests performed by Dr. McClanahan, with the exception of the dexterity test, were in the form of surveys and questionnaires; he did not administer any tests to determine Foster's medical condition. For that information, Dr. McClanahan consulted the inadmissible medical reports.

The Court of Civil Appeals cited Nor, Inc. v. Smith, 519 So.2d 534 (Ala.Civ.App. 1987), and Dutton v. Saginaw Division, General Motors Corp., 634 So.2d 597 (Ala. Civ.App.1994), as support for its finding that a vocational expert's testimony is admissible even though the expert relies on some material not in evidence as the basis for his or her opinion, so long as the opinion is also based upon the expert's own evaluation of the worker. The Court of Civil Appeals explained in detail the evaluation Dr. McClanahan performed on Foster, as well as the conclusions he purportedly drew from it, 838 So.2d at 382-84, and found his testimony sufficient to render his partial reliance on the inadmissible records to be harmless.

This conclusion, however, ignores the trial court's interpretation of Dr. McClanahan's testimony. The trial court explicitly stated that Dr. McClanahan's opinion that Foster was 100% disabled was "based on Dr. McClanahan's review of [Foster's] medical records," that is, those records the Court of Civil Appeals determined to be inadmissible evidence. The trial court's order clearly relied solely on the inadmissible evidence together with Dr. McClanahan's testimony in determining that Foster had suffered a permanent total disability. For example, the trial court observed that Foster "introduced numerous reports and medical...