Fuller v. BAMSI, Inc.

• Decision Date: 20 December 1996
• Citation: 689 So.2d 128
• Parties: Jimmy G. FULLER v. BAMSI, INC. 2950596.
• Court: Alabama Court of Civil Appeals

Page 128

689 So.2d 128

Jimmy G. FULLER v. BAMSI, INC.

2950596.

Court of Civil Appeals of Alabama.

Dec. 20, 1996.

Clement J. Cartron, Huntsville, for appellant.

H. Nelson Camp, Huntsville, for appellee.

YATES, Judge.

Jimmy G. Fuller sued his employer, BAMSI, Inc., on September 26, 1994, seeking to recover workers' compensation benefits for an injury he had sustained on September 26, 1992, during the course of his employment. Following an ore tenus proceeding, the trial court, on December 12, 1995, found, among other things, that Fuller had suffered a 15% permanent physical impairment and, pursuant to § 25-5-57(a)(3)i., Ala.Code 1975, that he had suffered a permanent partial disability, and ordered benefits accordingly. Fuller appeals.

At the outset, we note that because of the date of Fuller's injury, this case is governed by the new Workers' Compensation Act. The new Act provides that on appeal the review of the proof and the consideration of other legal issues shall be without a presumption of correctness. § 25-5-81(e)(1), Ala.Code 1975. It further provides that when a court reviews a trial court's findings of fact, those findings will not be reversed if they are supported by substantial evidence. § 25-5-81(e)(2), Ala.Code 1975. Our supreme court "has defined the term 'substantial evidence', as it is used in § 12-21-12(d), to mean '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 Industries, Inc., 680 So.2d 262, 268 (Ala.1996), quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). Further, we "will view the facts in the light most favorable to the findings of the trial court." Whitsett v. BAMSI, Inc., 652 So.2d 287, 290 (Ala.Civ.App.1994). This court has also concluded: "The new Act did not alter the rule that this court does not weigh the evidence before the trial court." Edwards v. Jesse Stutts, Inc., 655 So.2d 1012, 1014 (Ala.Civ.App.1995).

Fuller was employed with BAMSI as a plumber/pipe fitter. In December 1989, Fuller ruptured a disc in his neck during the course of his employment with BAMSI. He had surgery to repair the ruptured disc in February 1992, and following the surgery he returned to work with no limitations or complications. On September 26, 1992, Fuller suffered the injury made the basis of his complaint. He testified that he pulled on a pipe wrench to loosen a portion of pipe and felt a "bad pain" in his back. He attempted to turn the wrench again but was unable to do so and had to stop. The pain continued and increased; Fuller reported the injury and sought medical treatment at a local emergency room. He was initially diagnosed with a pulled muscle, given muscle relaxers, and sent home.

Fuller continued to experience pain and was referred to Dr. L.J. Davis for treatment on October 5, 1992. Following an initial examination, Fuller began receiving Feldene and physical therapy, which consisted of ultrasound and heat. He was restricted to a 30-pound weight-lifting limit, with no bending at the waist of more than 45 degrees. A follow-up examination revealed that Fuller continued to experience pain and an MRI was ordered. The MRI revealed that Fuller had "a large right-sided disc herniation" at L4-5.

Fuller was then referred to Dr. Frank Haws, a neurosurgeon, on October 29, 1992. Dr. Haws performed surgery on Fuller on December 1, 1992, to remove the extruded disc at L4-5. Following the surgery, Fuller returned to Dr. Haws, complaining of pain in his lower back and right leg. A lumbar myelogram revealed that Fuller had a herniated disc at L5-S1, and a second surgery was performed on December 11, 1992, to remove this extruded disc. Fuller returned to Dr. Haws in February 1993, again complaining of pain in his lower back and right leg. Another lumbar myelogram was performed, which revealed a "persistent defect" at the L5-S1 region. Dr. Haws suggested that if Fuller were to have a third surgery to his back, he should consider a fusion from the L5 to the sacrum in order to restrict the motion and to reduce the likelihood of a recurrence. Dr. Haws saw Fuller again on March 17, 1993, and noted that Fuller was "greatly improved" with "minimal discomfort." Dr. Haws discharged Fuller to return to work on April 1, 1993, with no restrictions, other than to use good posture and to sit straight and stand straight. Dr. Haws testified that Fuller had suffered a 15% permanent medical impairment as a result of the herniated L5-S1 disc with the recurrent defect.

Fuller sought a second opinion regarding his condition from Dr. Calame Sammons, an orthopedic surgeon, in May 1993. Dr. Sammons diagnosed Fuller with multilevel degenerative disc disease with segmental instability at the L4-5 and S-1, a degenerative disc at the L3-4, and a possible recurrent herniated disc with nerve root asymmetry at the right L5-S1. Dr. Sammons recommended a back-strengthening program in an attempt to alleviate some of Fuller's pain; however, he suggested that, should the pain continue to increase, a surgical exploration should be performed at the L4-5 and S-1 level on the right side, as well as a three-level lumbar fusion. Dr. Sammons described the three-level fusion as a "salvage" operation that would not allow Fuller to return to work as a pipe fitter. Fuller elected to try the strengthening program, but chose not to have the surgery.

Fuller testified that at the time of trial he was still experiencing pain in his back, hips, and legs. He stated that the pain had gradually worsened and that he could no longer do some activities that he was once able to do, such as mowing the lawn, gardening, jogging, hunting, and household chores. In terms of job performance, Fuller stated that when he returned to work following the surgery, he could only do 40% of what he could do before the injury. He stated that he returned to work rather than have the third surgery because he did not want to lose his job.

Four co-workers testified as to Fuller's physical abilities before the injury as opposed to after the injury. Their testimony was essentially that before the injury he could do the physical work required of him by his job, but that following the injury he was in pain and needed assistance from co-workers in completing his job tasks. Brad Borden testified that Fuller's supervisor, Terry Fincher, was aware of Fuller's condition and instructed the others to assist him when possible. Borden further...