Patterson v. Clarke County Motors, Inc.

• Decision Date: 09 August 1989
• Citation: 551 So.2d 412
• Parties: Aubrey Clyde PATTERSON v. CLARKE COUNTY MOTORS, INC. Civ. 6703-X.
• Court: Alabama Court of Civil Appeals

Page 412

551 So.2d 412

Aubrey Clyde PATTERSON v. CLARKE COUNTY MOTORS, INC.

Civ. 6703-X.

Court of Civil Appeals of Alabama.

Aug. 9, 1989.

Mark Ezell of Ezell & Sharbrough, Butler, and John W. Sharbrough of Ezell & Sharbrough, Mobile, for appellant.

Tom E. Ellis of Kracke, Thompson & Ellis, Birmingham, for appellee.

INGRAM, Presiding Judge.

Aubrey Clyde Patterson filed suit against Clarke County Motors ("Clarke") on October 31, 1985, for benefits under the workmen's compensation laws of Alabama. Patterson alleged that he had an accident at work on November 9, 1984, which loosened a previously implanted hip prosthesis to the extent that it had to be replaced. He claimed permanent total disability as a result of that injury. A bench trial was held on September 23, 1987. On July 8, 1988, the trial court entered a final judgment in Patterson's favor which awarded temporary total disability benefits to him for five-sevenths of one week, ordered Clarke to pay his medical expenses, and awarded his attorney a lump sum fee of 15 percent of the benefits granted. Patterson filed a motion for new trial, which was denied. He then filed a notice of appeal with this court, to which Clarke responded with a cross-appeal.

Patterson is approximately 30 years old. He graduated from high school, completed a two-year course at a vocational school in mechanics, and then worked as a laborer for a paper company. In July 1981, he suffered a fracture of his right hip in an automobile accident. In August 1982, he underwent a partial hip replacement as a result of complications from that fracture. He subsequently walked with a limp, but the record reflected that otherwise he had no difficulty with his artificial hip and had only occasional pain. He was restricted from doing heavy manual labor, running, and excessive walking. Patterson was hired by Clarke in late 1983 to wash cars and do light mechanical work.

The accident upon which this suit is based occurred after Patterson and a fellow employee had finished washing a pickup truck. Patterson climbed into the back of the truck to dry the top of the cab. He testified that, when he climbed back over the tailgate, he caught his right leg on the truck and jerked it as he got off the truck. Other testimony indicated that he may have only swung his leg over the tailgate and stepped down onto the ground. The record clearly evidences, however, that immediately after Patterson alighted from the truck, he experienced severe pain in his right hip and leg. When the pain did not subside, his employer had someone drive him to the hospital. X-rays revealed loosening of his artificial hip.

During the surgical procedure to replace Patterson's prosthesis, his right femur was fractured, which prolonged both his hospital stay and his recuperative period. He was discharged from the hospital on November 28, 1984. He was paid his regular salary through November 23, 1984, after which he was paid no further benefits. Patterson was on crutches until at least June 18, 1985, when he last saw his doctor. The progress notes from that date stated that Patterson was doing well and could start physical therapy. He did not keep any further doctor's appointments, however, nor did he undergo any physical therapy. He has not worked since the accident, as he claims that any work he tries to do aggravates his leg.

Patterson argues on appeal that certain testimony of his vocational expert was wrongfully excluded, that the amount of temporary total disability benefits awarded was inadequate, and that the trial court erred in not awarding permanent total disability benefits. Clarke contends on cross-appeal that Patterson has not established the legal and medical causation necessary to entitle him to workmen's compensation benefits. The company argues that any disability he suffers is the result of a pre-existing condition.

We will first address the issues raised by Clarke.

Workmen's compensation cases come before this court on certiorari, and, therefore, our standard of review is very narrow and does not allow us to weigh the evidence. Cook v. Munn, 528 So.2d 881 (Ala.Civ.App.1988). Our review of the judgment before us is limited to ascertaining whether any legal evidence or reasonable inference therefrom supports the trial court's findings of fact and whether the correct law was applied to such facts. Martin Industries, Inc. v. Dement, 435 So.2d 85 (Ala.Civ.App.1983). If conflicting testimony is presented, the findings of the trial court will be conclusive if there is any testimony to support them. DeHart v. Ideal Basic Industries, Inc., 527 So.2d 136 (Ala.Civ.App.1988).

Clarke is correct in asserting that an employee must meet two tests of causation--legal and medical--to establish his entitlement to workmen's compensation benefits. Gold Kist, Inc. v. Pope, 539 So.2d 291 (Ala.Civ.App.1988). To establish legal causation, the employee must show that he was exposed to a risk or hazard to which he would not have been exposed had he not been performing his job. Gold Kist, Inc. v. Pope, supra. We find that Patterson's getting out of the pickup truck he had been washing was sufficient exposure to a hazard incident to the performance of his job to establish legal causation. See Gold Kist, Inc. v. Jones, 537 So.2d 39 (Ala.Civ.App.1988). To establish medical causation, the employee must show that the hazard or risk to which he was exposed was, in fact, a contributing cause of his injury. Fordham v. Southern Phenix Textiles, Inc., 387 So.2d 204 (Ala.Civ.App.), cert. denied, 387 So.2d 206 (Ala.1980). We point out that the Supreme Court of Alabama recently held that the testimony of doctors is not required in order for a trial court to find medical causation. Ex parte Price, [Ms. 87-1457, February 17, 1989] (Ala.1989). We find that the totality of circumstances in the instant case supports a finding of medical causation here.

Clarke argues that the loosening of Patterson's prosthesis that necessitated its replacement was not caused by this specific accident, but was the result of a gradual deterioration of his artificial hip. The company's argument is based primarily on the testimony of its expert witness, an orthopedic surgeon who had reviewed Patterson's X-rays and medical records, but who did not examine Patterson himself. This physician testified that his review of the X-rays disclosed a chronic reaction between the bone and the cement used to anchor the first prosthesis in place which could not have occurred within a period of a few days. He stated that the failure rate for cemented hip replacements in patients under the age of 30 was nearly 50 percent.

Clarke's expert also testified that Patterson's accident could have accelerated the loosening of the prosthesis or aggravated the loosening process so that it became symptomatic. Our review of the medical records discloses two reports that we find pertinent to this issue. An X-ray report prepared two days after the accident indicates "loosening of the acetabular component" and the possibility of "early changes of loosening in the femoral component." The surgical report dictated by Patterson's treating physician states that the prosthesis was "in the beginning stages of looseness."

We find no evidence in the record that Patterson experienced difficulty with the prosthesis before November 9, 1984. Although he limped when he walked, we find only one occasion about which testimony reflected that Patterson indicated that his leg hurt at all. He did not miss much time from work and performed his duties to the apparent satisfaction of his employer. However, the evidence is uncontroverted that immediately after Patterson climbed off the truck, he experienced pain severe enough to require his hospitalization. Clarke intimated that Patterson engaged in certain physical activities that increased the likelihood of his problems, but we find no evidence in the record that Patterson did, in fact, engage in physical activities calculated to cause loosening of his prosthesis. Clarke's argument in brief that he did so is not supported by the testimony presented at trial.

This court has defined pre-existing injury or infirmity in terms of its effect on the employee's ability to earn. Gold Kist, Inc. v. Nix, 519 So.2d 556 (Ala.Civ.App.1987). If an employee is able to perform various job-related activities as a normal man, then a pre-existing condition is...