Hooper v. Denney

• Decision Date: 05 July 1991
• Citation: 587 So.2d 340
• Parties: William Tillman HOOPER d/b/a Hooper Sewer Service v. William O. DENNEY. 2900264.
• Court: Alabama Court of Civil Appeals

Page 340

587 So.2d 340

William Tillman HOOPER d/b/a Hooper Sewer Service v. William O. DENNEY.

2900264.

Court of Civil Appeals of Alabama.

July 5, 1991.

Bennett L. Pugh and Rhonda K. Pitts of Rives & Peterson, Birmingham, for appellant.

Kay L. Cason of Gorham, Waldrep, Stewart, Kendrick & Bryant, Birmingham, for appellee.

ROBERTSON, Presiding Judge.

William O. Denney (employee) sustained an on-the-job injury on January 29, 1985, while employed by Hooper Sewer Service (employer). On February 5, 1987, the employee filed a complaint in the Circuit Court of Jefferson County, seeking workmen's compensation benefits.

The trial court specifically found that the employee's claim was not barred by the statute of limitations. Rather, it held that the statute of limitations was tolled by the payment of compensation by the employer to the employee. Further, the trial court found that the employee's accident was not the result of intoxication, and, thus, that the affirmative defense of intoxication, Ala.Code 1975, § 25-5-51, was not applicable.

The trial court also found that the employee had incurred a sixty percent permanent partial disability as a proximate result of his injury. Additionally, the trial court found that, although the employee was now making more than he did before the accident, such "post-injury earnings ... do not accurately reflect the [employee's] earning ability or loss of earning capacity." However, the trial court failed to make a finding of the employee's actual loss of ability to earn.

The dispositive issue on appeal is whether the trial court erred in entering an award of compensation without first making a finding as to the employee's loss of ability to earn.

When such...