Henderson v. Johnson

• Decision Date: 15 October 1993
• Citation: 632 So.2d 488
• Parties: Charles HENDERSON, d/b/a Henderson Logging v. Fred JOHNSON. AV92000587.
• Court: Alabama Court of Civil Appeals

Page 488

632 So.2d 488

Charles HENDERSON, d/b/a Henderson Logging v. Fred JOHNSON.

AV92000587.

Court of Civil Appeals of Alabama.

Oct. 15, 1993.

Rehearing Denied Nov. 19, 1993.

Certiorari Denied Feb. 25, 1994

Alabama Supreme Court 1930256.

Joel A. Williams of Sadler, Sullivan, Herring & Sharp, P.C., Birmingham, for appellant.

Kenneth Shelton of Shelton & Shelton, Decatur, for appellee.

RICHARD L. HOLMES, Retired Appellate Judge.

This is a workmen's compensation case.

On August 24, 1990, Fred Johnson (employee) sustained multiple injuries when a tree fell on him while he was working in the line and scope of his employment with Charles Henderson, d/b/a Henderson Logging (employer). The employee received temporary total benefits from August 24, 1990, through August 9, 1991, in the amount of $243.28 per week. From August 10, 1991, through October 1, 1992 (the date of the hearing), the employee received $167.59 per week in temporary total benefits.

In his complaint, the employee alleges that his average weekly wage at the time of his injury was in excess of $450. A hearing was held, and the parties stipulated that the only issues before the court were the amount of the average weekly wage and the degree of any residual disabilities from the injuries.

After a hearing, the court issued its order, finding that the employee "has totally and completely lost his ability to earn a living and as a result, is totally and permanently incapacitated from working and being retrained for gainful employment, and the Plaintiff is therefore totally and permanently disabled." The court also found that, based upon the evidence presented at the hearing, the employee had suffered a 100% total reduction in his earning capacity.

Further, the trial court found that the employee's average weekly wage was $325.00 per week and that the resulting compensation rate due the employee was $216.68 per week. The court found that the employee's life expectancy was 22.89 years or 1,190.28 weeks. Lump sum attorney fees were awarded in the amount of $30,879.66.

The employer appeals.

Initially, we address the question as to which standard of review applies to this case.

The employer contends that the new standard of review provided in the amended Ala.Code 1975, § 25-5-81(e), should apply to this case because the hearing was held after the effective date of the 1992 amendment to the workers' compensation act. However, the injury occurred prior to the effective date of the new standard of review. It appears to this court that the operative date of occurrence is the date of injury and, therefore, the prior standard of review applies in the instant case. U.S. Steel Mining Co. v. Riddle, 627 So.2d 455 (Ala.Civ.App.1993). See also, Ala.Code 1975, § 25-5-1, Code commissioner's note, Acts 1984.

The old standard of review for workmen's compensation cases is set out in Ex parte Eastwood Foods, Inc., 575 So.2d 91 (Ala.1991). It is a two-step process, in which the court will examine the record to determine if there is any legal evidence to support the findings of the trial court. Then the reviewing court will decide whether any reasonable view of the evidence supports the judgment of the trial court.

In its first issue, the employer contends that the trial court committed reversible error when it found $325 to be the employee's average weekly wage. Initially, we note that the determination of the average weekly wage is governed by Ala.Code 1975, § 25-5-57(b).

In the present case, the employee began working for the employer only seven weeks prior to his injury. The employee earned $2,800 during this seven-week period, for an average weekly wage of $400. The trial court recognized, and the parties agree, that it would be inequitable to compute the average weekly wage using the employee's seven-week work history with the employer because the evidence showed that this seven-week period had generally good weather, allowing full employment. The trial court also recognized "that an individual employed as a logger will experience a number of weeks during the calendar year where the weather will be too inclement to allow wages to be earned."

The employer argues that the trial court should have used either (1) the 39-week period that the employee worked for his brother in the logging business in early 1990 as a basis for computing the average weekly wage or (2) the 52 weeks of wages earned by Lloyd Johnson, a comparable employee of the employer, who had the same rate of pay.

We note that § 25-5-57(b) provides, in part: "[a]verage weekly earnings shall mean the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury divided by 52...." (emphasis added). The 39-week period that the employee worked for his brother in the logging business in early 1990 was not "in the employment in which he was working at the time of the injury."

Further, we note that the trial court found that it would not be fair or equitable to use the 52 weeks of wages earned by Lloyd Johnson because the employee worked more days and hours per week than the comparable worker. There was...