Ragland Brick Co. v. Campbell

• Decision Date: 06 January 1982
• Citation: 409 So.2d 443
• Parties: RAGLAND BRICK COMPANY v. Dock CAMPBELL. Civ. 2929.
• Court: Alabama Court of Civil Appeals

Page 443

409 So.2d 443

RAGLAND BRICK COMPANY v.Dock CAMPBELL.

Civ. 2929.

Court of Civil Appeals of Alabama.

Jan. 6, 1982.

James C. Stivender of Inzer, Suttle, Swann & Stivender, Gadsden, for appellant.

William E. Hereford and Jo Beth Martin of Hereford, Blair & Hill, Pell City, for appellee.

HOLMES, Judge.

This is a workmen's compensation case.

On March 3, 1980, Dock Campbell brought an action against Ragland Brick Company to recover benefits under Alabama's Workmen's Compensation Act.After an ore tenus hearing, the trial court concluded that the employee had suffered a compensable injury and awarded benefits accordingly.Ragland Brick Company appeals and we affirm.

The record reveals the following: Employee in this action is fifty-nine years old and is illiterate, having failed to complete the third grade.He has been employed primarily as a manual laborer at Ragland Brick Company since 1952 and has had practically no training for any other type of work.

On March 14, 1979, the employee was at his place of employment working in the unloading department as an unloader.His duties required him to take bricks off of a car and place them in a "bander."While so engaged he stepped on a block which tilted or crumbled, causing him to lose his footing and fall.Employee testified that the fall resulted in injury to his right knee and his back.

The employee promptly reported the accident to his supervisor who instructed him to see a doctor.Within a few days employee visited Dr. Jariwala.Through deposition, Dr. Jariwala testified that employee's only complaint was that he fell at work and hurt his right leg.After an examination, Dr. Jariwala diagnosed employee as having a right knee bursal sprain.Dr. Jariwala gave employee some medication for his injury, but apparently did not suggest that he take any time off from work.

Employee continued to work until August 10, 1979, although he did switch to a less strenuous job.During this time, however, his back problem grew progressively worse.After consulting various doctors, he was finally diagnosed as having a herniated disc.This condition was surgically treated and the employee was able to return to work on November 13, 1979, after being off the job approximately thirteen weeks.

Employee's surgeon placed no restrictions upon the type of work employee could perform when he returned to work.The surgeon did testify, however, that, as a result of the surgery, employee had a permanent, partial impairment of approximately 15%.A rehabilitation specialist also examined employee and concluded that, considering employee's age, he was 100% impaired from heavy lifting.Employee has, however, been able to satisfactorily perform his duties since returning to work although he now works in the top house which requires less exertion than his previous job in the unloading department.

A hearing regarding employee's claim was held June 5, 1981.After considering the evidence before it, the trial court concluded that employee had suffered an injury which arose out of and in the course of his employment.The trial court further found that employee promptly reported the injury to his employer and that employer had actual notice of the injury within the statutory period.As a result of his injury, the trial court held that employee suffered a temporary, total disability for a period of eight weeks and that employee has a permanent, partial loss of ability to earn in the amount of 50%.The court's finding of permanent, partial disability was based upon the medical testimony concerning impairment and employee's years of service and lack of education.

On appeal, the employer, through able counsel, contends that the trial court erred in three instances.Initially, employer contends that it did not receive notice as required by the statute.Employer next contends that the evidence does not support the trial court's finding that the accident caused the injury which resulted in the disability.Finally, employer contends that the evidence does not support the trial court's finding regarding the disability of employee.For the reasons stated below, this court is of the opinion that all of employer's contentions are without merit.

Though section 25-5-78,Code of Alabama 1975, requires that the employer be notified in writing within ninety days after the occurrence of an accident, judicial construction has, to a great extent, abrogated the statute's literal application.Instead, numerous decisions have held that where the employer has actual knowledge of the accident, this is sufficient to satisfy the notice of requirement.E.g., Ex parte Stith Coal Co., 213 Ala. 399, 104 So. 756(1925);B. F. Goodrich Co. v. Martin, 47 Ala.App. 244, 253 So.2d 37, cert. denied, 287 Ala. 726, 253 So.2d 45(1971);Tripple M. Homes, Inc. v. Pickens, 46 Ala.App. 643, 248 So.2d 139(1971).Oral notice is sufficient to give the employer actual knowledge of an accident.American Tennis Courts, Inc. v. Hinton, 378 So.2d 235(Ala.Civ.App.), cert. denied, 378 So.2d 239(Ala.1979);Beatrice Foods Co. v. Clemons, 54 Ala.App. 150, 306 So.2d 18(1975).

In the case before us, it is undisputed that employee orally informed his supervisor that he had fallen and that he suffered an injury.Employer contends, however, that it was only informed of employee's knee injury and was not informed of employee's back injury until some five months later.In support of employer's position the supervisor testified that employee informed him of a knee injury but did not inform him of a back injury.Employer also introduced insurance forms in which employee indicated that his back pain was not employment related.Employee testified, however, that he did inform his supervisor that his back hurt.

The foregoing discussion indicates that there was some evidence before the trial court that employee, within the time provided by statute, specifically informed his employer that he had suffered some type of back injury.Based upon this evidence the trial court concluded that employer had actual knowledge of the accident that was sufficient to comply with section 25-5-78 and subsequent judicial interpretations thereof.

In workmen's compensation cases, if there is any legal evidence to support the trial court's finding of fact, such finding is conclusive and will not be disturbed on appeal.Foy v. Vann, 386 So.2d 1141(Ala.Civ.App.1979), cert. quashed as improvidently granted, 386 So.2d 1144(Ala.1980);Barfield v. General Steel Tank Co., 370 So.2d 1005(Ala.Civ.App.), cert. denied, 370 So.2d 1008(1979).In light of the above standard of review, this court cannot say the trial court erred since there is legal evidence to support the trial court's finding regarding notice.

We would also note this court's opinion in Beatrice Food Co. v. Clemons, supra, wherein we indicated that once the employer has actual...