Perry & Williams, Inc. v. Mitchell, 2050508.

CourtAlabama Court of Civil Appeals
Writing for the CourtPittman
Citation989 So.2d 1074
PartiesPERRY & WILLIAMS, INC. v. William Earl MITCHELL.
Docket Number2050508.
Decision Date17 November 2006
989 So.2d 1074
William Earl MITCHELL.
Court of Civil Appeals of Alabama.
November 17, 2006.

William H. Webster of Webster, Henry, Lyons & White, P.C., Montgomery, for appellant.

J. Greg Allen of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for appellee.


In May 1999, the Montgomery Circuit Court entered a judgment finding that William Earl Mitchell ("the employee") had suffered a disabling injury in July 1996 from inhaling toxic fumes while in the course of his employment with Perry & Williams, Inc. ("the employer"), so as to warrant an award of compensation under the Alabama Workers' Compensation Act, § 25-5-1 et seq., Ala.Code 1975 ("the Act"). That judgment also specified that the employee's right to "future medical benefits" (see generally § 25-5-77, Ala. Code 1975) would "remain open," i.e., that the employer's liability for future medical expenses resulting from the injury would

989 So.2d 1075

persist despite the award of other benefits under the Act.

In November 2005, the employee filed what he termed a "motion to enforce" that portion of the May 1999 judgment pertaining to future medical benefits. In that motion, the employee claimed that his medical condition had deteriorated, that he was "in need of a scooter and a lift for the scooter for mobility," and that the employer should pay for the scooter and the lift. The employer filed a response in opposition to the employee's motion, contending that the scooter and the lift did not fall within the scope of that portion of § 25-5-77(a), Ala.Code 1975, mandating that employers provide "reasonably necessary medical and surgical treatment and attention, physical rehabilitation, medicine, medical and surgical supplies, crutches, artificial members, and other apparatus as the result of an accident arising out of and in the course of the employment" (emphasis added). The employer submitted affidavits from the employee's treating physicians, i.e., a family-medicine specialist and a pulmonologist, who testified that the scooter and the lift prescribed for the employee, although "assist[ing] his mobility and function," would not in any way be expected or intended to improve the employee's medical condition. At the hearing on the employee's motion, the employee filed in open court a second affidavit from the family-medicine specialist, who opined therein that the employee "should be approved for a scooter and a lift to put the scooter on his car to increase his mobility and decrease his dependence on others." The trial court entered an order granting the employee's motion, deeming the family-medicine specialist's "latest conclusion as more persuasive on the need for the scooter and lift."

The employer appeals, contending that neither the scooter nor the lift is an "other apparatus"1 that is "reasonably necessary ... as the result of an accident arising out of and in the course of the employment" under § 25-5-77(a), as construed by the Alabama Supreme Court in Ex parte City of Guntersville, 728 So.2d 611 (Ala.1998). We agree.

In Ex parte City of Guntersville, the injured employee, a city police officer, suffered in the line of duty a bullet wound in his back in a manner that rendered him a paraplegic and confined him to a wheelchair. 728 So.2d at 613. After a judgment had been entered awarding the injured employee benefits under the Act, the city sued the injured employee, seeking a judicial determination that the city was not obligated under § 25-5-77(a) to pay the injured employee the purchase price of a motor vehicle equipped with a wheelchair lift. Id. The trial court entered a judgment in favor of the injured employee, and this court affirmed that judgment (with two judges dissenting). City of Guntersville v. Bishop, 728 So.2d 605 (Ala.Civ.App. 1997).

The city then sought certiorari review of this court's judgment of affirmance. The Supreme Court reversed, holding that "a motor vehicle does not come within the term `other apparatus' as that term is used in § 25-5-77(a)." 728 So.2d at 616. In doing so, the Supreme Court rejected the proposition that the necessity of the motor vehicle "`for restoring [the injured employee's] mobility "to the highest possible level" of independent functioning,'" Id., was a sufficient basis for classifying that motor vehicle as an "other apparatus," reasoning as follows:

"If we held that the workers' compensation statute required reimbursement of a

989 So.2d 1076

claimant's expenses where the sole purpose of those expenses was to enhance the claimant's independent functioning, we believe we would be dangerously disturbing the balance of interests that the Legislature built into the workers' compensation system.

"Our workers' compensation system was designed to provide limited, but guaranteed, benefits to employees injured on the job. In addition to those benefits, employers are required to pay for medical and rehabilitative treatment. However, we hold that those benefits do not include the purchase price of a motor vehicle. Put simply, a motor vehicle is not a device that, in and of itself, can serve to improve a disabled claimant's condition. Its only use is to improve the claimant's independent functioning. While human concern would cause one to wish that a disabled person would reach the maximum possible level of independent functioning, we believe that allowing reimbursement for such costs as are claimed in this case would stretch the workers' compensation statute beyond its intended meaning."

728 So.2d at 616-17 (emphasis added). Accord Osorio v. K & D Erectors, Inc., 882 So.2d 347, 350 (Ala.Civ.App.2003) (applying the holding in Ex parte City of Guntersville in holding that § 25-5-77(a) does not require an employer to provide attendant-care expenses to the family of a disabled employee for assisting in the employee's daily functioning when that care will not serve to improve employee's physical or mental condition).

In short, under the reasoning in Ex parte City of Guntersville, for an item or device prescribed for an injured employee, such as the scooter and the lift at issue in this case, to be deemed a covered "other apparatus" under § 25-5-77(a) so as to render an employer liable for the cost of that item or device, it must be shown that the purpose of the item or device is to improve the physical or mental condition of the injured employee. Although it is true, as the employee argues, that § 25-5-77(a) contains express directions that employers pay for the cost of certain specified items that might not, strictly speaking, "improve" particular medical conditions following a workplace injury (e.g., an artificial prosthetic limb does not "improve" a leg amputation), we are concerned here not with an item or device directly specified by the legislature but instead with the scope of the term "other apparatus" as construed by our Supreme Court (whose decisions, under § 12-3-16, Ala.Code 1975, bind this court). Moreover, whether it may be more burdensome for the employee, rather than the employer, to acquire a scooter or a lift (as the employee suggests) does not bear upon the legal question presented.

We acknowledge that under § 25-5-81(e)(2), Ala.Code 1975, appellate review of factual determinations (as opposed to legal determinations) made by circuit courts in cases arising under the Act is constrained by the principle that a judgment based upon such findings "shall not be reversed if ... supported by substantial evidence." However, in this case, the pulmonologist who has treated the employee (and to whom the family-medicine specialist deferred in his first affidavit) opined in his affidavit that the employee's need for a scooter and a lift is "unrelated to his workers' compensation injury" and is "secondary to his diabetes, morbid obesity, severe cardiac disease and history of smoking"; that evidence tends to support the employer's position that the scooter and the lift would not improve the employee's condition. Although the trial court disclaimed reliance upon the pulmonologist's opinion, relying instead upon the family-medicine specialist's second affidavit, that affidavit

989 So.2d 1077

does not constitute substantial contrary evidence indicating that the scooter and the lift were intended to improve the employee's condition; rather, that affidavit simply states that the devices would "increase his mobility and decrease his dependence on others," benefits that do not, under the holding in Ex parte City of Guntersville, warrant imposing liability on the employer under § 25-5-77(a). Simply put, no substantial evidence supports the trial court's judgment so as to warrant affirmance of that judgment.

Based upon the foregoing facts and authorities, the trial court's judgment granting the employee's motion to compel the employer to pay for a scooter and a lift for the employee is reversed. The cause is remanded with instructions to deny the employee's motion.


CRAWLEY, P.J., concurs.

THOMPSON and BRYAN, JJ., concur specially, with writings.

MURDOCK, J., concurs in the result, with writing.



1. We note that the term "other apparatus" is not statutorily defined in the Act.


THOMPSON, Judge, concurring specially.

In Ex parte City of Guntersville, 728 So.2d 611, 616 (Ala.1998), the parties stipulated that the requested motor vehicle, a van, merely enhanced the worker's independent functioning and that the motor vehicle had "no other medical purpose." Our supreme court held that because another subsection of § 25-5-77 provided for reimbursement of transportation costs, the more general language of subsection (a) of § 25-5-77 should not be interpreted as also providing for transportation costs. The court concluded that a motor vehicle is not an "other apparatus" under § 25-5-77(a). Ex parte City of Guntersville, supra. In so holding, our supreme...

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2 cases
  • Ex Parte Marble City Plaza, Inc., 1051417.
    • United States
    • Supreme Court of Alabama
    • November 16, 2007
    ...funds, we hereby overrule Williams.4 Conclusion Based on the foregoing, the judgment of the Court of Civil Appeals is affirmed. AFFIRMED. 989 So.2d 1074 COBB, C.J., and SEE, LYONS, WOODALL, STUART, SMITH, and PARKER, JJ., MURDOCK, J., recuses himself. --------------- Notes: 1. Harvey Bowlin......
  • Ex Parte Mitchell, 1060356.
    • United States
    • Supreme Court of Alabama
    • January 25, 2008
    ...Appeals reversed the judgment of the trial court awarding Mitchell the scooter and the lift. See Perry & Williams, Inc. v. Mitchell, 989 So.2d 1074 (Ala.Civ.App. 2006). This Court held in Ex parte City of Guntersville that a van was not a device 989 So.2d 1085 that served to improve a disab......

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