Russell Coal Co. v. Williams

• Decision Date: 09 August 1989
• Parties: RUSSELL COAL COMPANY v. Earnest WILLIAMS. Civ. 6790.
• Court: Alabama Court of Civil Appeals

Page 1007

550 So.2d 1007

RUSSELL COAL COMPANY v. Earnest WILLIAMS.

Civ. 6790.

Court of Civil Appeals of Alabama.

Aug. 9, 1989.

John W. Clark, Jr. and Judith E. Dolan of Clark & Scott, Birmingham, for appellant.

Hoyt Elliott and Hoyt Elliott, Jr., Jasper, for appellee.

INGRAM, Presiding Judge.

The original opinion issued on June 7, 1989, is withdrawn, and the following is substituted therefor.

Earnest Williams filed suit against Russell Coal Company on July 7, 1987, for benefits under the workmen's compensation laws of Alabama. He claimed back injuries, occupational pneumoconiosis, and hearing loss arising out of and in the course of his employment. After a bench trial, the court entered an order which denied Williams's claims for benefits based on pneumoconiosis and hearing loss, but found that he was entitled to workmen's compensation benefits based on his back injuries. Williams was awarded a lump sum of accrued weekly benefits, future permanent partial benefits, payment of all existing and unpaid reasonable medical expenses, and attorney's fees. Russell filed a motion for new trial, which was denied. The company then perfected a timely appeal to this court from the judgment against it.

Russell argues on appeal that Williams's claims are barred by the statute of limitations, that the trial court's finding of legal and medical causation is not supported by any legal evidence, that the trial court's finding of notice is not supported by any legal evidence, that no evidence was presented which would allow Williams to recover medical expenses, and that the benefit awards should have been reduced by the attorney's fee awards.

Williams did not cross-appeal the denial of his claims based on pneumoconiosis and hearing loss. We will, therefore, limit our discussion here to those facts relative to his back injuries.

Williams is presently 54 years old. He was employed by Russell as a heavy equipment operator in its strip mines, where he worked from mid-1977 until June 20, 1986. Russell closed the strip mine on that date. Williams has not been employed since then.

Williams's complaint, in pertinent part, alleges the following:

"4. On said date [June 20, 1986] and while working within the line and scope of Plaintiff's employment and over the immediately preceding months, the Plaintiff received injuries arising out of and in the course of Plaintiff's employment under the following circumstances: the rough movement of the machines operated in the performance of the work required injured Plaintiff's back and on said date he last worked had reached such severity as to permanently and totally disable him."

The record does not reflect that Williams suffered any definitive accident on June 20, 1986. Instead, his testimony revealed that he has had back problems since on or about May 1, 1983, when he injured his back for the first time. According to Williams, he was operating a road grader when it ran over a large rock and dropped about a foot and a half. He felt an immediate burning pain in his back. He then slipped getting off the machine, which caused the pain to get worse. He was referred by his chiropractor to a neurosurgeon, Dr. Robert Q. Craddock, and subsequently underwent surgery for a ruptured disc. On December 5, 1983, he was released to his "full and usual activities," and he returned to work. All medical bills resulting from this injury were paid by group health insurance provided through the mine workers' union. Weekly disability benefits were also paid from the same source.

Dr. Craddock's records indicate that he again treated Williams for back pain in September of 1984. The doctor's notation on September 18 states that Williams said he was steadily getting worse. He responded to conservative treatment, however, and was released to return to work on October 22, 1984.

Williams testified that he suffered another back injury on the job in October of 1985. On that occasion, he was driving a water truck which hit a hole and jolted him sharply against the seat. He stated that the seat of the truck was propped up by a crosstie and that the truck had no "shocks". He experienced a burning pain in his back like the pain he had felt in 1983. He sought treatment in this instance from his family physician, Dr. A.R. Hudson. Because Williams stated that he found it difficult to work six-day weeks as a result of his pain, Dr. Hudson wrote a note to Russell advising that Williams should be excused from Saturday work for two months for medical reasons. The company refused to accept the excuse for future Saturdays. The record does not reflect any further treatment by Dr. Hudson of Williams's back problems.

We cannot determine how much time, if any, Williams lost from work immediately after this injury. The record does indicate, however, that Williams continued to work at least from mid-November of 1985 until the mine closed in June of 1986, a period of approximately seven months. He performed the same duties and worked the same schedule, including Saturdays, as he had before the accident. He did utilize sick leave and vacation time to take days off, but his personnel record does not reveal a noticeable increase in his absenteeism during that period.

One significant problem with the October 1985 injury is that the exact date on which it occurred cannot be determined from the record before us. According to Williams, it happened on the day he went to see Dr. Hudson, whose records reflect that he saw Williams on October 29. There is also evidence to indicate that Dr. Hudson wrote a medical excuse on October 29 for Williams to excuse his absence from work on October 26. There is no other evidence from which the date of the 1985 accident can be established.

Williams testified at trial that he had notified Russell of this accident by telephoning Russell's purchasing agent. That testimony conflicted with statements made during his deposition that he did not report the 1985 accident to anyone. When confronted with the inconsistency at trial, he said he had misunderstood the question asked at his deposition. On the other hand, the purchasing agent testified that he had never received any report concerning an on-the-job accident from or on behalf of Williams.

The general superintendent of the mine where Williams worked stated that he knew Williams had "some back problems," but that Williams had never filed a complaint indicating that he had been hurt at work. There is a memorandum in the record dated November 5, 1985, that documents a telephone conversation the superintendent had with Dr. Hudson regarding his recommendation that Williams be excused from work on Saturdays. It states:

"Carthell Williams [the superintendent] called Dr. Ray Hudson on this date and discussed this with Dr. Hudson. Russell Coal Company will not accept this for Earnie's being excused for every Saturday for the rest of the year. We will accept it for being excused for 10/26/85, but that is all. If Earnie is off any other Saturday, he must have an excuse for each individual Saturday." (Emphasis in original.)

Williams testified that he had also discussed his back trouble with the superintendent when he took him the excuse from Dr. Hudson.

We note that the record reflects that Williams also injured his back twice at home, although neither he nor his wife could state with any degree of certainty when these incidents occurred. Mrs. Williams's testimony indicates that one could have been in September of 1984, which coincides with Williams's visits to Dr. Craddock. The only indication of the other is a message taken by Russell when Williams requested a sick day on December 8, 1985, stating that he had fallen at home and hurt his back.

The trial court has made multiple factual determinations as to the cause of Williams's back problems, i.e., the existence of an occupational disease, a progressive deterioration of his condition caused by continuous operation of heavy equipment, and accidents resulting from his employment in May 1983 and September 1985. The trial court also found that Russell had notice of "the accident," that the statute of limitations did not begin to run on any of Williams's claims until June 20, 1986, and that none of Williams's claims was barred.

Because workmen's compensation cases come before us on certiorari, 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 in this case 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). With the foregoing in mind, we have reviewed each finding of the trial court relative to the cause of Williams's disability.

Occupational Disease

At the outset, we note that we need not address any arguments concerning an occupational disease. Section 25-5-117, Ala.Code 1975 (1986 Repl.Vol.), is clear that Williams had to file his claim for an occupational disease within one year after the date of the injury. See Sims v. Union Underwear Co., 551 So.2d 1078 (Ala.Civ.App.1989). This he did not do. Therefore, the trial court's conclusion that Williams was entitled to compensation on the basis of an occupational disease was in error.

Gradual Deterioration

The trial court found that Williams's "work in the operation of heavy equipment before, at the time of, and after the September 1985 injury caused Plaintiff's disabling back condition from which he suffered on 6/20/86," and that the progressive aggravation of his back problems entitled him to workmen's compensation benefits. For an injury to be...