Grace v. Standard Furniture Mfg. Co. Inc.

• Decision Date: 23 July 2010
• Docket Number: 2090111.
• Citation: 54 So.3d 909
• Parties: Joseph GRACEv.STANDARD FURNITURE MANUFACTURING COMPANY, INC.
• Court: Alabama Court of Civil Appeals

54 So.3d 909

Joseph GRACE

v.STANDARD FURNITURE MANUFACTURING COMPANY, INC.

2090111.

Court of Civil Appeals of Alabama.

July 23, 2010.

Charles R. Godwin, Timothy J. Godwin, and Gordon B. Godwin, Atmore, for appellant.Robert G. Jackson, Jr., Anthony M. Hoffman, and Jennifer S. Holifield of Zieman, Speegle, Jackson & Hoffman, L.L.C., Mobile, for appellee.PER CURIAM.

Joseph Grace has been employed by Standard Furniture Manufacturing Company, Inc. (“Standard”), in various positions for 16 years. On November 8, 2005, while working as a forklift operator, Grace was injured when he was hit by a forklift. Grace injured his neck and left shoulder; he also suffered a concussion. After treatment in the emergency room on the day of the accident, Grace sought treatment for his injuries from a company-approved physician, Dr. Gary Kolb, from his personal physician, Dr. James R. Dixon, and from a company-approved orthopedic surgeon, Dr. William A. Crotwell III.

Dr. Crotwell diagnosed Grace with cervical degenerative disk disease, cervical radiculopathy, impingement syndrome of the left shoulder, and arthritis of the left shoulder. According to Dr. Crotwell, a November 2005 MRI performed on Grace's shoulder was of poor quality; Dr. Crotwell said that, although he noticed joint arthritis on that MRI, he did not see any tears or other acute injuries indicated on that MRI. However, a March 2006 MRI revealed a partial tear in Grace's rotator cuff and a possible labrum tear. Dr. Crotwell performed surgery on Grace's shoulder in April 2006; he repaired the tears in the rotator cuff and in the labrum at that time.

According to Dr. Crotwell, the arthritic changes in Grace's neck, which included bone spurs, or osteophytes, and multiple levels of collapsed degenerative disks, were preexisting conditions not caused by Grace's work-related accident. Grace also has a congenital defect in his shoulder; Dr. Crotwell explained that Grace's acromion, a bone forming a portion of the shoulder joint, was “sloping” and could have rubbed against Grace's rotator cuff, causing irritation. Dr. Crotwell also referred to the irritation in Grace's shoulder as resulting from a bone spur. According to Dr. Crotwell, he could not tell whether the rotator-cuff tear that he repaired in April 2006 had resulted from the November 2005 injury or whether it had resulted from irritation by the bone spur before or after the November 2005 work-related injury to the shoulder. Dr. Crotwell did testify that “if you get an injury on top of [a preexisting bone spur] then it is an aggravation to it.” In the April 2006 surgery, Dr. Crotwell also trimmed the acromion to alleviate any irritation it might have been causing.

After Grace reached maximum medical improvement regarding both his neck injury and his shoulder injury, Dr. Crotwell assigned Grace physical-impairment ratings. Dr. Crotwell explained that Grace had a 3% loss of motion in his shoulder and that he had a 10% physical impairment to his upper extremity as a result of his shoulder surgery. According to Dr. Crotwell, however, 5% of Grace's 10% physical impairment was caused by his preexisting arthritis and defective acromion; thus, Dr. Crotwell ultimately assigned Grace an 8% physical impairment to his upper extremity resulting from his work-related shoulder injury, which translated, he said, to a 5% physical impairment to the body as a whole.

Grace's neck injury also resulted in permanent physical impairment. Dr. Crotwell explained that Grace suffered a 6% physical impairment to the body as a whole as a result of the condition of his neck. Dr. Crotwell noted that 4% of Grace's neck impairment resulted from Grace's preexisting degenerative disk disease; thus, Dr. Crotwell assigned only a 2% physical impairment to Grace as a whole as a result of his work-related neck injury.

When all of the physical-impairment ratings are combined, Dr. Crotwell explained, Grace suffered a 14% physical impairment to the body as a whole if his preexisting conditions are included. However, when those preexisting conditions are excluded from the calculations, said Dr. Crotwell, Grace's physical-impairment rating is only 7% to the body as a whole.

Dr. Crotwell placed Grace under permanent restrictions as a result of his work-related injuries. Grace is limited to lifting 15 to 20 pounds frequently and 25 to 30 pounds infrequently. He is not permitted to perform overhead work with his left arm, and he is not permitted to perform any work above chest height. In addition, Grace must avoid excessive bending, twisting, and torquing with his neck.

Grace's restrictions prevented him from resuming his position as a forklift operator, which requires heavy lifting on a regular basis. When Grace first returned to work after his injury, he was assigned a position bagging hardware. He was later reassigned to an assembly-line position where he placed “U channels” on the bottom of dressers. Grace testified that his position on the assembly line was within his restrictions. According to Grace, at the time of trial in September 2008, he earned $.15 per hour more in his position on the assembly line than he had as a forklift operator in November 2005. A pay stub admitted into evidence at trial showed that Grace earned $446 per week. The parties agreed that Grace's average weekly wage at the time of his accident was $424.

Grace filed an action against Standard, seeking workers' compensation benefits for the injuries resulting from the November 2005 accident. The trial court entered a judgment in favor of Standard on October 15, 2008, and Grace appealed. This court reversed the trial court's October 2008 judgment because it failed to contain findings of facts and conclusions of law as required by Ala.Code 1975, § 25–5–88. Grace v. Standard Furniture Mfg. Co., 29 So.3d 918 (Ala.Civ.App.2009). On remand, the trial court entered a judgment in compliance with § 25–5–88, and Grace again appealed.¹

Our review of this case is governed by the Workers' Compensation Act, Ala.Code 1975, § 25–5–1 et seq., which states in pertinent part: “In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.” Ala.Code 1975, § 25–5–81(e)(2). Therefore, this court “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), overruled on other grounds, Ex parte Trinity Indus., Inc., 680 So.2d 262, 269 (Ala.1996). Further, a trial court's finding of fact is supported by substantial evidence if it 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., 680 So.2d at 269 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989), and citing Ala.Code 1975, § 12–21–12(d)). Our review of legal issues is without a presumption of correctness. Ala.Code 1975, § 25–5–81(e)(1); see also Ex parte Trinity Indus., 680 So.2d at 268.

As a preliminary matter, we will address the parties' arguments concerning whether Grace's counsel had stipulated that Ala.Code 1975, § 25–5–57(a)(3)i., known as the “return-to-work statute,” applies in the present case. In Grace, Standard argued that the trial court's judgment, which contained not one finding of fact or conclusion of law, was merely meager and omissive because Grace's counsel had stipulated that the only issue was whether the return-to-work statute applied to limit Grace's receipt of benefits. In our opinion concluding that the judgment was not merely meager and omissive and required reversal under § 25–5–88, we explained that the record did not contain a stipulation by Grace's counsel that the only issue before the trial court was whether the return-to-work statute applied to Grace; in fact, we stated that “[t]he record is devoid of any stipulations by Grace's counsel.” Grace, 29 So.3d at 920.

Because the trial court's subsequent judgment states that the parties stipulated that § 25–5–57(a)(3)i. controlled, the parties again argue whether a stipulation to that effect was entered on the record. “ ‘ “Under the doctrine of the ‘law of the case,’ whatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case.” ' ” McMorrough v. McMorrough, 930 So.2d 511, 514 (Ala.Civ.App.2005) (quoting Stephens v. Stephens, 699 So.2d 194, 196 (Ala.Civ.App.1997) (quoting in turn Blumberg v. Touche Ross & Co., 514 So.2d 922, 924 (Ala.1987))). Thus, we will not consider again whether a stipulation regarding § 25–5–57(a)(3)i. exists in this case. The trial court's judgment on remand further states that it independently concluded that the statute was applicable. We will review that conclusion on appeal.

Because Grace suffered injuries to nonscheduled members of the body, i.e., his neck and shoulder, the compensation due him would ordinarily be based upon his loss of earning capacity. Ala.Code 1975, § 25–5–57(a)(3)g. However, Standard argued below that, based on the fact that Grace's testimony established that he had returned to work at a higher rate of pay, Ala.Code 1975, § 25–5–57(a)(3)i., or the return-to-work statute, applied, resulting in a presumption that Grace had not suffered a loss of earning capacity. Section 25–5–57(a)(3)i. reads, in pertinent part:

“Return to Work. If, on or after the date of maximum medical improvement, except for scheduled injuries as provided in Section 25–5–57(a)(3), an injured worker returns to work at a wage equal to or greater than the worker's pre-injury wage, the worker's permanent partial disability rating shall be equal to his or her physical impairment and the court shall not...