Hooper v. Denney

Decision Date20 March 1992
Citation619 So.2d 1388
PartiesWilliam Tillman HOOPER, d/b/a Hooper Sewer Service v. William O. DENNEY. 2900666.
CourtAlabama Court of Civil Appeals

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

Kay L. Cason of Gorham, Waldrep, Stewart, Kendrick, Bryant, Battle & Alfano, P.C., Birmingham, for appellee.

ROBERTSON, Presiding Judge.

This is the second time this case has been before this court. On July 5, 1991, this court reversed and remanded this case to the trial court because 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. Hooper v. Denney, 587 So.2d 340 (Ala.Civ.App.1991).

On remand, the trial court entered the following order:

"This Court's Final Order of December 12, 1990, is hereby amended, supplemented and corrected (so as to comply with the directions of the Court of Civil Appeals, in its review of this cause, dated July 5, 1991), as follows:

"Dr. Fain A. Guthrie, former Dean of the School of Counseling and Clinical Psychology, testified the plaintiff had suffered a vocational disability rating of 60-65%. He testified plaintiff would not be hirable by prospective employers due to dizziness, seizures, headaches and loss of hearing. He further testified plaintiff had a vocational impairment of 100%. Defendant's witness, Mary Kessler, assigned a 20% vocational disability rating. Ms. Kessler testified, however, that in reaching her opinion she did not take into account the plaintiff's status of only being able to work 2-3 days per week.

"Finally, plaintiff's present income is, in fact, a composite business income, produced by the efforts of all four family members.

"Hence, this court determines plaintiff has a vocational disability rating of 60%."

Again, the trial court failed to make a finding as to the employee's loss of ability to earn. When such a finding is absent from the judgment, there are no grounds for awarding compensation benefits. Marley Erectors, Inc. v. Rice, 560 So.2d 1083 (Ala.Civ.App.1990). Compensation is awarded on the basis of loss of ability to earn, and without such a finding, no compensation can be awarded. Tyson Foods, Inc., v. Calloway, 568 So.2d 811 (Ala.Civ.App.1990); Gibson v. Southern Stone Co., 500 So.2d 32 (Ala.Civ.App.1986).

The previous record on appeal revealed that the...

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2 cases
  • Webb Oil Co., Inc. v. Holmes
    • United States
    • Alabama Court of Civil Appeals
    • November 18, 1994
    ...a finding that Holmes's earning capacity was diminished by the disability, there is simply no basis for an award. Hooper v. Denney, 619 So.2d 1388 (Ala.Civ.App.1992). Consequently, this court must reverse the judgment and remand the cause for a determination of whether Holmes suffered a los......
  • Bentley Pontiac/Cadillac, Inc. v. Adams
    • United States
    • Alabama Court of Civil Appeals
    • August 26, 1994
    ...diminished by the disability? Absent that finding, there is simply no basis for an award. Marley, supra; see also Hooper v. Denney, 619 So.2d 1388 (Ala.Civ.App.1992). Consequently, this court must reverse the judgment and remand the cause for a determination of whether Adams suffered a loss......

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