Musgrove Const., Inc. v. Malley

• Decision Date: 13 May 2005
• Docket Number: 2020093.
• Citation: 912 So.2d 227
• Parties: MUSGROVE CONSTRUCTION, INC. v. Charles E. MALLEY.
• Court: Alabama Supreme Court

912 So.2d 227

MUSGROVE CONSTRUCTION, INC. v. Charles E. MALLEY.

2020093.

Court of Civil Appeals of Alabama.

December 12, 2003.

Certiorari Denied April 16, 2004 Alabama Supreme Court 1030464.

Opinion on Return to Remand February 25, 2005.

Certiorari Denied May 13, 2005 Alabama Supreme Court 1040828.

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Tracy P. Turner of Johnstone, Adams, Bailey, Gordon & Harris, L.L.C., Mobile, for appellant.

Halron W. Turner and Marc E. Bradley of Turner, Onderdonk, Kimbrough & Howell, P.A., Chatom, for appellee.

On Applications for Rehearing

CRAWLEY, Judge.

The opinion of this court issued August 8, 2003, is withdrawn, and the following is substituted therefor.

I. Facts and Procedural History

Charles E. Malley ("the worker") was employed by Musgrove Construction, Inc. ("the company"), as a journeyman lineman. The company constructs and maintains power lines. The worker's job required him to work on and near energized power lines. On May 27, 1998, the worker was connecting a jumper tap line to the main line neutral from the bucket of a bucket truck approximately 35 feet above the ground. He successfully connected the jumper tap line on one end with a wooden-handled tool he referred to as the "squeeze tool." However, while using the tool to connect another portion of the jumper tap line to the neutral line, the worker was electrocuted by 7200 volts of electricity.

After being electrocuted, the worker chose to avoid further electrocution by unhooking his safety lanyard and exiting the bucket. He then fell to the ground, landing on his right shoulder and head. The worker suffered electrical burns over 12% of his body. The worker also suffered a torn rotator cuff in his right shoulder; headaches and dizziness from striking his head on the ground; and carpal tunnel syndrome, which can manifest itself as a result of electrocution, in his right hand. He also developed posttraumatic stress disorder and depression as a result of his injuries.

The worker sued the company, seeking workers' compensation benefits. After a trial, the trial court determined the worker to be 100% permanently, totally disabled and awarded benefits accordingly. The company appeals, arguing that, pursuant to Ala.Code 1975, § 25-5-51, the worker's willful misconduct in violating company safety rules requiring him to wear rubber gloves while working within reach of an energized power line and to wear a safety harness and lanyard while in the bucket precludes an award of compensation or, at least, precludes an award of 100% permanent, total disability based upon the combination of the worker's restrictions caused by both his electrical burns and the injuries he suffered as a result of his fall from the bucket. In addition, the company argues that the trial court erred by refusing to order the worker to submit to a functional capacities evaluation ("FCE"), that the trial court erred by failing to admit certain testimony, and that the award of 100% permanent, total disability is not supported by substantial evidence.

II. Standard of Review

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 § 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.

III. Whether the Trial Court Erred by Failing to Order the Worker to Undergo a Functional Capacities Evaluation

The company argues that the trial court erred by failing to order the worker to undergo an FCE. The company had requested that the worker undergo an FCE; the worker refused. The company then filed a motion to compel the worker to undergo an FCE with the trial court. The company relied on both Ala.Code 1975, § 25-5-77(b), and Rule 35(a), Ala. R. Civ. P., in support of its motion. After conducting a hearing on the motion, consulting written briefs in support and in opposition of the motion, and considering excerpts of the deposition testimony of four of the worker's physicians, the trial court denied the motion without explanation.

Because the company based the motion on both Rule 35(a) and § 25-5-77(b), we can affirm the trial court only if its denial of the motion was proper under both bases. If the trial court's denial of the motion is improper under either basis, we must reverse. As explained in the following discussion, there was insufficient evidence before the trial court for it to determine, under § 25-5-77(b), whether the company's motion to compel the FCE should have been granted. Therefore, we need not consider whether the trial court's denial of the company's motion to compel was proper under Rule 35(a). Accordingly, we reverse the judgment of the trial court on that issue and remand for further proceedings as detailed below.

The company argues on appeal that Beatrice Foods Co. v. Gray, 431 So.2d 1299 (Ala.Civ.App.1983), requires reversal of the trial court's denial of the company's motion to compel the FCE. In Beatrice Foods, this court reversed a trial court's judgment determining that the worker was permanently and totally disabled on the basis that the trial court had erred by refusing to compel the worker to undergo an additional medical examination and a vocational assessment. Beatrice Foods, 431 So.2d at 1300. The worker had injured her back at work, and the employer sought an additional medical examination to determine if the worker had injured a disc in her back and a vocational assessment to determine the worker's vocational status. Id. Two of the worker's physicians indicated that they believed the worker had injured a disc in her back but that they were unable to confirm their suspicions; one of those physicians suggested that the worker see a physician in Mobile who could administer a new screening test for disc injuries. Id. One of the worker's physicians stated that he thought the worker could do jobs other than the one in which she was injured; another physician recommended that the worker be evaluated at a vocational-rehabilitation agency. Id. The worker had agreed to both examinations. Id. However, when the company requested that the trial court order the evaluations, the trial court denied the company's motion. Id.

This court reversed the decision of the trial court, noting that Ala.Code 1975, § 25-5-77(b), requires a worker to undergo medical examinations at all reasonable times by a physician of the company's choosing and that § 25-5-77(c) requires a worker to undergo vocational rehabilitation if the company requests that the worker do so. Id. The court pointed out that if a worker unreasonably refuses to submit to either a medical examination or vocational rehabilitation, workers' compensation benefits must be suspended. Id. Although the court noted that the question whether a worker's refusal to submit to a medical examination or vocational rehabilitation is reasonable is a question of fact, the court reversed the trial court's decision, commenting that the worker had not refused the treatment and, therefore, there was no reasonable refusal upon which the court could base its decision to deny the company's requests. Id.

Unlike the worker in Beatrice Foods, the worker in the present case did not consent to the FCE requested by the employer; therefore, in that particular respect, Beatrice Foods is distinguishable. However, the basic law discussed in Beatrice Foods is still applicable. The worker's refusal to submit to the FCE must be reasonable. See Beatrice Foods, 431 So.2d at 1300.

"The threshold determination of the reasonableness of the [company's] request, and thus of the reasonableness of any refusal of the [worker] to submit to an examination, is `a question of fact for the trier of fact.'" Jimoco, Inc. v. Smith, 777 So.2d 716, 718 (Ala.Civ.App.2000) (quoting Health Care Auth. of Huntsville v. Henry, 600 So.2d 324, 327 (Ala.Civ.App.1992)). This court may not reverse the trial court's determination on this question of fact if the trial court's finding is supported by substantial evidence. Id. In addition, when a trial court does not make a specific finding of fact, this court must presume it would have made those findings necessary to support its judgment if those findings would be supported by evidence contained in the record. Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992).

The present case presents a dilemma. The trial court held a hearing on the company's motion to compel the worker to submit to an FCE. However, at that hearing, the trial court took no testimony and listened only to the arguments of counsel. The only evidence presented to the court was the prescription for an FCE by one of the worker's physicians and excerpts of the depositions of four of the worker's physicians. Those deposition excerpts indicated that the physicians all thought that either an FCE or vocational retraining might be appropriate for the worker but that none of the doctors had indicated that they had actually ordered an FCE...