Stevison v. Qualified Personnel, Inc.
| Decision Date | 07 November 1990 |
| Citation | 571 So.2d 1178 |
| Parties | Howard E. STEVISON v. QUALIFIED PERSONNEL, INC. Civ. 7704. |
| Court | Alabama Court of Civil Appeals |
Richard L. Watters of Howell, Johnston, Langford & Watters, Mobile, for appellant.
James E. Robertson, Jr. and Dan S. Cushing of Lyons, Pipes & Cook, Mobile, for appellee.
Howard E. Stevison (employee) filed a complaint against Qualified Personnel, Inc. (employer), seeking workmen's compensation benefits for an on-the-job injury which occurred during the employee's first week of employment. The employee also requested imposition of the statutory ten percent penalty against the employer for late payment of compensation. Although the employer had already paid some workmen's compensation benefits to the employee, a dispute between the parties existed as to whether further payments were due. After an ore tenus proceeding, the trial court issued its final judgment, in which its findings of fact and conclusions of law were embodied. The trial court found that the employee continued to suffer a temporary total disability due to injuries from the accident and ordered the employer to pay workmen's compensation benefits accordingly. The trial court, however, refused to impose the ten percent penalty for late payment. The employee brings this appeal.
On appeal, the employee raises two issues for our consideration. Initially, the employee contends that the trial court erred in refusing to impose the statutory ten percent penalty against the employer for its failure to pay compensation.
Section 25-5-59, Ala.Code 1975, provides a ten percent penalty where any installment of compensation payable is not paid, without good cause, within thirty days after it becomes due. We have held that good cause exists when there is a good faith dispute as to the employer's liability to its employee. Read News Agency, Inc. v. Moman, 383 So.2d 840 (Ala.Civ.App.), cert. denied, 383 So.2d 847 (Ala.1980). Furthermore, in Crown Textile Co. v. Dial, 507 So.2d 522 (Ala.Civ.App.1987), we found that good cause for withholding workmen's compensation payments existed where there was evidence that the employee's fall might have been caused by a condition not arising out of and in the course of his employment.
In the case at bar, the record reveals that the employer initially paid workmen's compensation benefits to the employee from May 9, 1988, through October 16, 1988. The employee's first treating physician, Dr. Andin C. McLeod, Jr., testified that in his opinion, the employee should have reached maximum medical improvement about three months after the injury. Apparently on the basis of Dr. McLeod's opinion, the employer discontinued further workmen's compensation payments to the employee. However, the employee was still suffering back pain and eventually sought treatment from a second physician, Dr. John McAndrew III. Dr. McAndrew testified that he performed a variety of tests, which led to the conclusion that the employee had suffered a herniated disc in his back.
The trial court, on its own initiative, appointed Dr. Joseph F. McGowin III to examine the employee. Pursuant to Dr. McGowin's opinion, the trial court found that the employee's back injury arose out of the accident. The trial court ordered the employer to pay additional temporary total disability compensation to the employee for the period of time in which no compensation had previously been paid and to continue payments for the duration of the employee's temporary total disability.
We find that the evidence in this case clearly shows that the delay in the employer's payment of workmen's compensation benefits to the employee was the result of a good faith dispute between the parties regarding the amount of workmen's compensation benefits due. Therefore, we find no error in the trial court's refusal to impose the ten percent penalty against the...
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