Vf Jeanswear d/b/a The Lee Company v. Taylor, No. 2011054 (Ala. App. 12/30/2003), 2011054.

• Decision Date: 30 December 2003
• Docket Number: No. 2011054.,2011054.
• Parties: VF Jeanswear d/b/a The Lee Company v. Barbara Jean Taylor.
• Court: Alabama Court of Appeals

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VF Jeanswear d/b/a The Lee Company v. Barbara Jean Taylor.

No. 2011054.

Court of Appeals of Alabama.

December 30, 2003.

Appeal from Franklin Circuit Court, (CV-01-310).

MURDOCK, Judge.

This is an appeal from a judgment entered by the Franklin Circuit Court in favor of Barbara Jean Taylor, the employee, and against VF Jeanswear d/b/a The Lee Company in a workers' compensation case.

Taylor had worked for VF Jeanswear for 17 years as an inseamer when she first complained of pain in the base of her right thumb in June 1997. She consulted Dr. Lloyd C. Dyas, an orthopedic surgeon; the surgeon saw evidence of sclerosing tenosynovitis, a hardening and inflammation of a tendon sheath, and he recommended a course of anti-inflammatory medication as treatment.

In October 1997, Dr. Dyas again examined Taylor, and noted "a prominence of the CMC [carpometacarpal] joint of the right thumb with positive grind test typical of CMC arthritis." Dr. Dyas confirmed this diagnosis of degenerative arthritis by X-ray, and prescribed another medication for Taylor. Taylor was to consult Dr. Dyas again in six months, but the record does not indicate if Taylor kept that appointment.

In June 1999, Taylor consulted Dr. William P. Bryant, another orthopedic surgeon, because she was still having pain in her right thumb. Dr. Bryant confirmed Dr. Dyas's diagnosis of degenerative arthritis in the CMC joint. Because the more conservative treatment had not alleviated her symptoms, Dr. Bryant performed a surgical procedure known as "interpositional arthroplasty" on Taylor's right thumb. Taylor continued to see Dr. Bryant for follow-up treatment throughout the remainder of 1999.

In February of 2001, Taylor sought treatment for her left thumb from Dr. Bryant. Dr. Bryant diagnosed Taylor with the same degenerative arthritis in the CMC joint in her left thumb from which she had suffered in her right thumb. Dr. Bryant subsequently performed interpositional anthroplasty on Taylor's left hand on March 15, 2001; Taylor saw Dr. Bryant for follow-up treatment through August 2001.

In a follow-up visit on July 9, 2001, Dr. Bryant placed temporary work restrictions on Taylor. Dr. Bryant subsequently released Taylor to full-duty work, without restriction. She continued to work at the VF Jeanswear plant until it closed in January 2002. At some point, Taylor's job duties changed from those of inseamer to those of "upgrader," then to those of working on the "mod line," and finally, at the time the plant closed, to those of pulling fabric and making tickets. Only the job of pulling fabric and making tickets was not a production-line sewing job. Taylor has been unemployed since the plant closed in January 2002.

Taylor sued VF Jeanswear seeking workers' compensation benefits. Taylor alleged that she had suffered "a severe injury to both her hands as a result of repetitive use." Following proceedings in which the trial court received evidence ore tenus, the court entered a judgment on May 7, 2002, finding as follows:

"FINDINGS OF FACTS

"1) Barbara Jean Taylor is a 55 year old female who finished the tenth grade in high school. She obtained her GED at the age of 39 and has had no further educational training.

"2) Barbara Jean Taylor has worked in the sewing industry since September 17, 1979. Although she has worked in various capacities within that industry, she has had no other training in any other line of work.

"3) Ms. Taylor worked as an inseamer for approximately 17 years, which necessitated extensive use of her hands and thumbs in pushing the work through the sewing machine. Ms. Taylor began having physical problems with her right thumb in June, 1997.

"4) Following surgery on her thumb, Ms. Taylor's job changed and she no longer worked as an inseamer. She worked on the mod-line for approximately one year and upgrade until the close of the plant in January, 2002. While the change in job responsibilities may have ... lessened the demand on her hands and thumbs, she also suffered a reduction in income. However, Ms. Taylor did work, without doctor's restriction, until the plant closed.

"5) Plaintiff, Barbara Jean Taylor, was diagnosed with CMC disease and surgery was performed on June 18, 1999. She continues to suffer from an arthritic condition which is causally connected, both medically and legally, to her employment with VF Jeanswear d/b/a The Lee Company.

"6) This Court expressly finds that Ms. Taylor's disablement was caused by an occupational disease that occurred within the line and scope of her employment with Defendant, VF Jeanswear d/b/a The Lee Company. The Court further finds that the disablement has resulted in a vocational disability of 60%."

(Emphasis added.)

In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence. Our Supreme Court has defined "substantial evidence" as "'evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.'" Ex parte Trinity Industries, Inc., 680 So. 2d 262, 268 (Ala. 1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 SO. 2d 870, 871 (Ala. 1989)).

The employer does not contest the treatment by the trial court of Taylor's injuries as an "occupational disease" under Art. IV of our Workers' Compensation Act, § 25-5-110 et seq. No issue is presented to this court on appeal, therefore, as to whether this treatment was appropriate. See McLemore v. Fleming, 604 So. 2d 353 (Ala. 1992).

In fact, the employer relies on the definition pertaining to occupational diseases in § 25-5-110 and argues that Taylor's condition did not result from a hazard "in excess of those ordinarily incident to employment in general" and "different in character from those found in the general run of occupations." We have carefully reviewed the evidence before us, including the medical records, the testimony of a vocational expert presented by Taylor, and the testimony of Taylor, herself, and find that the record does contain substantial evidence from which the trial court reasonably could have concluded that Taylor, in her job as a sewing machine operator for almost 20 years, was exposed to conditions, particularly in relation to the use of her thumbs, that were more hazardous than those ordinarily incident to employment and that were peculiar to her occupation as a seamstress. See § 25-5-110(1), Ala. Code 1975.

Secondly, notwithstanding the treatment of Taylor's injury as an occupational disease, the employer cites to § 25-5-81(c), Ala. Code 1975, and argues that Taylor's injury is one that "resulted from gradual deterioration or cumulative physical stress disorders" and therefore should be deemed compensable "only upon a finding of clear and convincing proof that [her] injuries arose out of and in the course of [her] employment." The employer argues that there was not sufficient evidence for the trial court to be able to conclude that the clear and convincing standard...