Marley Erectors, Inc. v. Rice

• Decision Date: 03 May 1991
• Citation: 585 So.2d 1379
• Parties: MARLEY ERECTORS, INC. v. Barbara RICE. Civ. 7595.
• Court: Alabama Court of Civil Appeals

Page 1379

585 So.2d 1379

MARLEY ERECTORS, INC. v. Barbara RICE.

Civ. 7595.

Court of Civil Appeals of Alabama.

May 3, 1991.

Rehearing Denied June 7, 1991.

Certiorari Denied Aug. 30, 1991

Alabama Supreme Court 1901521.

John J. Coleman III of Balch & Bingham, Birmingham, for appellant.

Charles F. Carr and Thomas L. Oliver II of Rives & Peterson, Birmingham, for appellee.

RUSSELL, Judge.

This is a workmen's compensation case, before this court on a second appeal.

The employee, Barbara Rice, alleged a psychological injury following an incident at work in which a piece of concrete struck her on the hard hat she was wearing. She sought benefits from her employer, Marley Erectors, Inc., pursuant to Alabama's workmen's compensation statutes.

Following an ore tenus proceeding, the trial court found that the employee "was injured while working on the job--most likely a combination of the falling rock and harassment by co-employees--all of which contributed to her severe psychological disability." It then concluded that the employee had a 15% permanent partial disability due to the accident and awarded compensation.

The employer appealed, contending among other things that the trial court erred in entering an award of compensation without making a finding as to the employee's loss of ability to earn. It is well settled that, when such a finding is absent from the judgment, no grounds for awarding compensation exist. Alabama Power Co. v. Daniel, 545 So.2d 779 (Ala.Civ.App.1989); B.F. Goodrich Co. v. Martin, 47 Ala.App. 244, 253 So.2d 37 (Ala.Civ.App.), cert. denied, 287 Ala. 726, 253 So.2d 45, 46 (1971).

By opinion dated February 21, 1990, this court determined that the trial court did not include a finding concerning any loss of the employee's ability to earn. Consequently, we pretermitted any discussion of the other issues raised by the parties and reversed and remanded for a determination of whether the employee suffered a loss of ability to earn. Marley Erectors, Inc. v. Rice, 560 So.2d 1083 (Ala.Civ.App.1990).

Following remand, the trial court entered a revised order, which adopted the findings of fact in its original order and included a finding that the employee had suffered a 15% loss of earning capacity.

From the trial court's revised order, the employer again appeals. We reverse and remand.

On appeal the employer again raises several issues. However, we find the dispositive issue to be whether the trial court erred in finding the employee had sustained a 15% permanent partial reduction in her earning capacity.

At the outset we note that the standard of appellate review in workmen's compensation cases is a two-step process. Initially, this court will look to see if there is any legal evidence to support the trial court's findings. If such evidence is found, this court will then determine whether any reasonable view of that evidence supports the trial court's judgment. Ex parte Eastwood Foods, Inc., 575 So.2d 91 (Ala.1991).

Our review of the record in this case, along with the attendant legal principles, reveals that the evidence does not support the trial court's conclusion that the employee sustained a 15% permanent partial reduction in her earning capacity.

The record reveals that the employee sustained a work-related injury when a small piece of concrete fell from a scaffold and struck the hard hat she was wearing. The evidence suggests that the piece of concrete weighed approximately two to three pounds. A few hours after the accident, the employee reported the incident to her employer. At the time, she was more stunned than in pain, but she avers that her neck was painful the next day.

At the time of the accident, the employee was a laborer for the employer, a construction company. She was in her late thirties, had obtained a high school equivalency degree, and had earned a one-year degree from a business college. Prior to her work with the employer, she had been employed as a nurse's aide, a spooler and winder in a textile mill, and a worker in a grocery store. Her primary job responsibilities at the time of the accident included pouring concrete, assembling scaffolding, and performing various types of clean-up work. While clearing the walkway on some scaffolding on June 18, 1987, the employee was struck by a piece of concrete that fell from a scaffold several feet above her.

The employee subsequently saw several doctors, including her personal physician, none of whom could find an objective basis for the pain of which she complained. Following the accident, the employee returned to her work with the employer and continued to perform the same duties for approximately one month thereafter, at which time the scaffolding job was completed. Subsequently, the employee worked a short time as a laborer for Construction Engineering.

In January 1988 the employee began work as a laborer in a steam plant for Sullivan, Long & Haggerty, where her duties, like those of her co-workers, consisted largely of clean-up work. Testimony from her supervisor, Walter Gates, indicated that the employee worked without special help and without incident until early November 1988, when she told a co-worker that she and her boyfriend had broken up and she entered a hospital for treatment of depression. Suffering from depression and still experiencing unexplainable pain, the employee, upon her attorney's request, saw a psychologist and then a psychiatrist.

The psychiatrist, Dr. Mallory Miree, admitted the employee to a hospital's psychiatric unit. The employee spent six weeks in this unit, during which time she received no income or benefits. She thereafter returned to Sullivan, Long & Haggerty, again performing work as a laborer, until January 1989, when she was laid off for reasons not relevant to this appeal.

Dr. Miree, who testified at the trial, also found the employee to be free of physical injury. However, he attributed the employee's severe depression to the accident and to her inability to perform...