Ex Parte Dolgencorp, Inc., 1060428.

• Decision Date: 31 October 2008
• Docket Number: 1060428.
• Citation: 13 So.3d 888
• Parties: Ex parte DOLGENCORP, INC. (In re Dolgencorp, Inc. v. Barbara Ann Gibson).
• Court: Alabama Supreme Court

13 So.3d 888

Ex parte DOLGENCORP, INC. (In re Dolgencorp, Inc. v. Barbara Ann Gibson).

1060428.

Supreme Court of Alabama.

October 31, 2008.

Robert S. Lamar, Jr., and Rick D. Norris, Jr., of Lamar, Miller, Norris, Haggard & Christie, P.C., Birmingham, for petitioner.

Joseph C. McCorquodale of McCorquodale & McCorquodale, Jackson, for respondent.

Craig A. Alexander of Rumberger, Kirk & Caldwell, P.A., Birmingham; and Helen Johnson Alford of Alford, Clausen & McDonald, LLC, Mobile, for amicus curiae Alabama Defense Lawyers Association, in support of the petitioner.

Leila H. Watson of Cory, Watson Crowder & DeGaris, P.C., Birmingham; and Patrick J. Ballard of Ballard Law Office, Birmingham, for amicus curiae Alabama Association for Justice, in support of the respondent.

PARKER, Justice.

We granted certiorari in this workers' compensation case to review an alleged conflict between the no-opinion affirmance of the trial court's judgment by the Court of Civil Appeals and that court's earlier decisions regarding the appropriate application of § 25-5-57(b), Ala.Code 1975, a portion of the Workers' Compensation Act, § 25-5-1 et seq., Ala Code 1975. Section 25-5-57(b) provides:

"(b) Computation of compensation; determination of average weekly earnings. Compensation under this section shall be computed on the basis of the average weekly earnings. Average weekly earnings shall be based on the wages, as defined in Section 25-5-1(6)¹ of the injured employee in the employment in which he or she 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 the period, although not in the same week, then the earnings for the remainder of the period, although not in the same week, then the earnings for the remainder of the 52 weeks shall be divided by the number of weeks remaining after the time so lost has been deducted. Where 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 of weeks and parts thereof during which the employee earned wages shall be followed, provided results just and fair to both parties will thereby be obtained. Where by reason of the shortness of the time during which the employee has been in the employment of his or her employer or the casual nature or terms of the employment it is impracticable to compute the average weekly earnings as above defined, regard shall be had to the average weekly amount which during the 52 weeks prior to the injury was being earned by a person in the same grade, employed at the same work by the same employer, and if there is no person so employed, by a person in the same grade employed in the same class of employment in the same district. Whatever allowances of any character made to an employee in lieu of wages are specified as part of the wage contract shall be deemed a part of his or her earnings."

We conclude that a conflict does exist, and we reverse the judgment of the Court of Civil Appeals and remand the case to that court for resolution.

Facts

Barbara Ann Gibson began work for Dollar General, a retail discount store owned by Dolgencorp, Inc. ("Dolgen"), as an hourly wage employee on or about December 2, 1998. She continued to work for Dolgen for 33 weeks² until she suffered a work-related injury on July 28, 1999. She had become store manager in June 1999, and her salary was increased to $425 per week. After her injury, Gibson resigned. Her earnings for the 33 weeks that she worked totaled $8,715.88. This amount divided by 33 weeks results in average weekly earnings of $264.12.

Gibson sued Dolgen in the Clarke Circuit Court in a dispute over the extent of her disability and the amount of her average weekly earnings, which would determine the amount of any disability payments. The extent of Gibson's disability is not at issue on appeal, but Dolgen challenges the trial court's finding that Gibson's average weekly earnings were $425. The trial court, apparently relying heavily on the fact that Dolgen reported Gibson's salary as $425 per week when it filed the "Employer's First Report of Injury," used that amount as the basis for computing Gibson's benefits.

The trial court's order, dated December 13, 2005, reads, in pertinent part, as follows:

"This cause came before the Court on the 27th day of June, 2005, upon the pleadings, the evidence ore tenus adduced at trial,³ and the arguments of counsel. Upon consideration of the same, the Court finds as follows:

"....

"The parties are in dispute regarding two material issues:

"1. The calculation of [Gibson's] average weekly earnings. Dolgencorp, Inc. contends that the second method of [Ala.] Code [1975,] § 25-5-57(b) should be used to calculate [Gibson's] average weekly earnings, which would result in the amount of $264.12. [Gibson] contends that the third method of [Ala.] Code [1975,] § 25-5-57(b) should be used to calculate her average weekly earnings, which would result in the amount of $425.00. Four Hundred and Twenty-five dollars ($425.00) is also the average weekly wage self-reported by Dolgencorp, Inc. to the State of Alabama in Employer's First Report of Injury. This issue was briefed extensively by the parties, evidence was submitted on the issue, and counsel for both parties argued the issue.

"....

"Findings and Conclusions

"Upon consideration of the medical evidence, the vocational evidence, and the other evidence ore tenus, including the Court's observations of Barbara Ann Gibson, the Court has arrived at the following findings of fact and conclusions of law:

"1. That calculating Barbara Ann Gibson's average weekly earnings using the second method of [Ala.] Code [1975,] § 25-5-57(b) would not obtain a just and fair result for both parties.

"2. That it is impracticable to compute the average weekly earnings in this case using the second method of [Ala.] Code [1975,] § 25-5-57(b).

"3. That calculating [Gibson's] average weekly earnings using the third method of [Ala.] Code [1975,] § 25-5-57(b) is practicable in obtaining a result that is just and fair to both parties.

"4. That the overwhelming evidence in support of the calculation of [Gibson's] average weekly earnings using the third method of [Ala.] Code [1975,] § 25-5-57(b) obtains a result of $425.00 per week.

"5. That the result of $425.00 per week calculating [Gibson's] average weekly earnings using the third method of [Ala.] Code [1975,] § 25-5-57(b) is equal to the average weekly wage self-reported by Dolgencorp, Inc. to the State of Alabama in Employer's First Report of Injury."

Dolgen appealed to the Court of Civil Appeals, challenging only the trial court's finding of average weekly earnings of $425, arguing that the trial court should have calculated Gibson's benefit based on average weekly earnings of $264.12 under the statute, and not on average weekly earnings of $425. The Court of Civil Appeals affirmed the trial court's judgment, without an opinion, on October 20, 2006, citing only Henderson v. Johnson, 632 So.2d 488, 490 (Ala.Civ.App.1993), presumably that portion of Henderson that states that "when it is impracticable to apply the formulas for determining average weekly wage so as to arrive at a just and fair result to both parties, it is left to the sound judgment and judicial discretion of the trial court." Dolgencorp, Inc. v. Gibson (No. 2050335, Oct. 20, 2006), 3 So.3d 296 (Ala. Civ.App.2006) (table). Dolgen sought certiorari review of the Court of Civil Appeals' decision, arguing that it conflicts with several decisions of this Court and of the Court of Civil Appeals. This Court granted Dolgen's petition.

Dolgen argues that in Collins v. Westmoreland, 600 So.2d 253, 255 (Ala.Civ.App. 1991), the Court of Civil Appeals construed § 25-5-57(b), Ala.Code 1975, to mean that where the duration of employment is less than 52 weeks, the second method in the statute for determining average weekly earnings should be used. Dolgen argues that the Court of Civil Appeals' decision to affirm the judgment of the trial court here conflicts with that earlier opinion. Gibson argues that the trial court was within its discretion to determine her average weekly earnings as it did, because, Gibson asserts, the statute is not mandatory when the employee, as here, did not work in the employment for 52 weeks preceding the injury. Gibson also argues that Dolgen's insertion of $425 as the average weekly salary on the Employer's First Report of Injury is an admission against interest that supports the trial court's finding even where other evidence might support a contrary finding. Gibson's brief at 27.

Standard of review

"On certiorari review, this Court accords no presumption of correctness to the legal conclusions of the intermediate appellate court. Therefore, we must apply de novo the standard of review that was applicable in the Court of Civil Appeals." Ex parte Toyota Motor Corp., 684 So.2d 132, 135 (Ala.1996). The standard of review in the Court of Civil Appeals was as follows:

"[An appellate court] will not reverse the trial court's finding of fact if that finding is supported by substantial evidence—if that finding is supported by `evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.'"

Ex parte Trinity Indus., Inc., 680 So.2d 262, 268-69 (Ala.1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). However, "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." Ex parte American Color Graphics, Inc., 838 So.2d 385, 387-88 (Ala.2002) (citing § 25-5-81(e)(1), Ala.Code 1975). Ex parte Southern Energy Homes, Inc., 873 So.2d 1116, 1121 (A...