Ex parte Southern Energy Homes, Inc.

• Decision Date: 27 June 2003
• Citation: 873 So.2d 1116
• Parties: Ex parte SOUTHERN ENERGY HOMES, INC. (In re Southern Energy Homes, Inc. v. Emma Riddle).
• Court: Alabama Supreme Court

873 So.2d 1116

Ex parte SOUTHERN ENERGY HOMES, INC.

(In re Southern Energy Homes, Inc. v. Emma Riddle).

1020037.

Supreme Court of Alabama.

June 27, 2003.

Warren B. Lightfoot, Jr., of Maynard, Cooper & Gale, P.C., Birmingham (reply brief filed by Warren B. Lightfoot and John B. Holmes III of Maynard, Cooper & Gale, P.C., Birmingham; W. Scott Simpson of Batchelor & Simpson, P.C., Birmingham; and Christopher A. Mixon, Birmingham), for petitioner.

Richard E. Fikes of Tweedy, Jackson, Beech & Fikes, Jasper, for respondent.

MOORE, Chief Justice.

Southern Energy Homes, Inc., petitions this Court for a writ of certiorari to challenge the Court of Civil Appeals' affirmance of the trial court's finding that Emma Riddle is 100% permanently and totally disabled and therefore entitled to workers' compensation benefits. We granted the petition to determine whether Riddle presented substantial evidence of a permanent total disability as defined by the Workers' Compensation Act. We reverse and remand.

I. Facts

Southern Energy builds and distributes manufactured homes. It hired Emma Riddle in November 1995 at Southern Energy's Lynn plant to clean the manufactured homes before they left the manufacturing facility. Emma was 53 years old at the time of trial. Before she was hired by Southern Energy, Riddle had worked for approximately 20 years at various jobs, such as driving a school bus, raising chickens, and working as a security guard for different companies. Riddle alleged in her complaint that she first injured her back in April 1996 when she fell off a six-foot ladder and landed on her feet. As a result of her fall, she missed one day of work, after which she was back to work performing all of her normal duties. She testified that she continued to feel significant pain in her lower back after that incident, despite the fact that she continued to work. Riddle testified that she immediately informed her supervisor that she had been injured on the job and that five days after the incident she asked to see a doctor. However, Riddle never filled out the workers' compensation paperwork for an on-the-job injury, and when she asked to see a doctor an administrative employee informed Riddle that Southern Energy was not aware that she had been injured on the job. In early 1997, because Southern Energy was downsizing its workforce, Riddle was transferred from the Lynn plant to Southern Energy's Double Springs plant. Riddle's supervisor first assigned her to clean black marks off walls and counters of the manufactured homes, but when Riddle complained that she was tired and that the fumes of the cleaning solution bothered her, the supervisor switched her to stripping protective plastic off the floors. When Riddle complained that that job also bothered her, the supervisor switched her to smaller clean-up work that included vacuuming the insides of the manufactured homes.

On or around January 5, 1997, the same day she was assigned to do the vacuuming work, Riddle complained to her supervisor that she hurt her back when she was pushing a vacuum cleaner inside one of the manufactured homes. Riddle did not testify that she had suffered a specific trauma to her back on that day, only that her "back started paining even more" when she was "trying to push a vacuum cleaner." Riddle and Southern Energy filled out the paperwork necessary for a workers' compensation claim, and Riddle never returned to work at Southern Energy. In fact, Riddle has not worked anywhere since January 5, 1997; she has not attempted to work anywhere; and she has not applied for new work.

During Riddle's employment with Southern Energy, her primary-care physician was Dr. Bernard Simieritsch. Riddle testified that she informed Dr. Simieritsch of her daily back pain, but Dr. Simieritsch's records admitted into evidence do not mention the April 1996 incident or any complaints of back pain during Riddle's first seven visits to Dr. Simieritsch after the alleged April 1996 incident. On a January 24, 1997, visit to Dr. Simieritsch, after she had filed a workers' compensation claim with Southern Energy and had stopped working for Southern Energy, Riddle informed Dr. Simieritsch that she had fallen off a ladder in April 1996 and that she has had problems with her back since that time. She also indicated that she had hurt her arm in the fall. After an X ray and CT scan of Riddle's spine, Dr. Simieritsch diagnosed Riddle with degenerative disk disease of the lumbar spine, but testing did not indicate neurological impairment or a herniated disk.

Dr. Simieritsch referred Riddle to Dr. Edward Fisher, an orthopedic surgeon. Dr. Fisher treated Riddle on five occasions beginning on February 5, 1997, and ending on June 4, 1998. Initially, in February 1997, Dr. Fisher stated in his records admitted into evidence that "[i]t is certainly possible that [Riddle's] problems are a result of the injury she described," but that "there is no objective way to completely decide one way or the other." By May 14, 1998, Dr. Fisher observed that Riddle's "complaints of symptoms seem[] out of proportion to any physical findings." Dr. Fisher concluded that, pending an MRI, "[Riddle] would be able to work with restrictions of no heavy lifting, repetitive bending or stooping."

However, on May 21, 1998, after an MRI had been performed, Dr. Fisher concluded that Riddle had "mild degenerative disk changes with no evidence for nerve impingement, nothing unexpected for someone her age." He diagnosed her with "[d]egenerative disk disease of the lumbar spine with back pain" and "[d]egenerative arthritis of her right elbow with pain." By June 1998, Dr. Fisher concluded that "[a]lthough she has quite a few symptoms[,] there are not really any objective findings to rate any permanent impairment." He did not place any work restrictions on Riddle upon releasing her from his care. Southern Energy paid for some of the care provided by Dr. Simieritsch and Dr. Fisher, but Riddle decided to seek further treatment from other doctors of her own choosing. She sought treatment from Dr. Forqouk Raquib, who initially diagnosed Riddle with degenerative changes in her lower back but concluded that she did not have any "surgical disease," based on his review of the CT scan and MRI. On the basis of his interview with her, Dr. Raquib initially concluded that Riddle's "long term prognosis is poor as far as ... returning to any meaningful job," and he did not believe she would be able to hold a sedentary job, "as she's in constant pain and unable to sit or stand for more than 5-10 minutes at a time."

As part of Riddle's treatment, Dr. Raquib referred Riddle to a physical therapist, David Breedlove. After 11 sessions with Riddle between September and October 1998, Breedlove discontinued the therapy because, he said, Riddle was "not progressing and [she] demonstrates an inconsistency in that she has very minimal forward flexion from a standing position in the clinic and has much more forward flexion outside of the tested environment." Dr. Raquib then released Riddle from his care, diagnosing her with chronic back syndrome and degenerative changes in her back, but he concluded that the "degree of her physical symptoms are inconsistent with physical findings." Upon releasing Riddle from his care, Dr. Raquib did not restrict Riddle from working and did not make a finding as to whether her condition was caused by an on-the-job injury.

Dr. Muhammad Ali, a neurologist and pain specialist, treated Riddle for a little more than a year beginning on February 18, 1999; he saw Riddle five times during that period. Dr. Ali testified by deposition that he performed an ENG and nerve-conduction study on Riddle and that based on those tests, he "did not find any evidence of nerve damage, pinched nerves. Basically, the test was negative for any pathology." He found no evidence of herniated or bulging disks. After his complete evaluation, Dr. Ali found that Riddle was engaging in "symptom magnification," i.e., she was exaggerating the extent of her debilitation in comparison to what the tests showed her injury to be. Dr. Ali diagnosed Riddle with a degenerative disease in her spine and with depression, and stated that the fall from the ladder could have aggravated the degenerative disease. However, he also concluded that "[t]he pattern of her injury did not follow her complaints" because

"what she says is that she jarred herself; she never landed on her back; she did not hit her head from any side; she did not hit any part of her muscles directly; she just jarred with foot down. With that kind of fall, it should have communicated to the central spine and maybe done a compression fracture, or maybe have resulted in a herniated disk; and that's what we had thought initially, and that's why we did those tests, and it did not follow that."

Dr. Ali determined that Riddle had reached maximum medical improvement on April 4, 2000. He never assigned Riddle a permanent impairment rating during her visits, but upon questioning at his deposition, he placed Riddle's permanent impairment rating at between 0% and 5%. Dr. Ali never restricted Riddle from working in any way, and he concluded that there was nothing that would preclude her from performing light-duty and medium-duty work and "possibly heavy-duty job[s] also, but not outrightly."

Riddle applied for Social Security disability benefits.¹ As part of her application, Riddle was evaluated by two psychologists. Dr. Alan Blotcky, a clinical psychologist, evaluated Riddle in October 1997, at which time he diagnosed her with moderate depression. Dr. Blotcky stated in his deposition that he did not believe the 1997 injury was the cause of Riddle's depression, and he concluded that he could not say "either way" whether the depression was the result of the April 1996 injury or the January 1997 injury. He did not believe that the depression prevented Riddle from being gainfully employed, but he...