Werner Co. v. Davidson

• Decision Date: 14 December 2007
• Docket Number: 2060471.
• Citation: 986 So.2d 455
• Parties: WERNER COMPANY v. Edward Randall DAVIDSON.
• Court: Alabama Court of Civil Appeals

986 So.2d 455

WERNER COMPANY v. Edward Randall DAVIDSON.

2060471.

Court of Civil Appeals of Alabama.

December 14, 2007.

James C. Ayers, Jr., of Ayers & Oncale, LLC, Birmingham, for appellant.

Joseph T. Carpenter of Carpenter, Ingram & Mosholder, LLP, Montgomery, for appellee.

MOORE, Judge.

Werner Company ("the employer") appeals from a judgment of the Calhoun Circuit Court awarding Edward Randall Davidson ("the employee") permanent-total-disability benefits under the Alabama Workers' Compensation Act, § 25-5-1 et seq., Ala.Code 1975 ("the Act"). We affirm.

Procedural History

On May 13, 2004, the employee filed a two-count complaint against the employer. The first count asserted a claim for workers' compensation benefits on account of a December 1, 2003, accidental injury to the employee's back. The second count sought damages for retaliatory discharge under Ala.Code 1975, § 25-5-11.1. The employer filed an answer on June 18, 2004. On February 1, 2005, the employer filed a motion for a partial summary judgment on the retaliatory-discharge claim. The trial court dismissed count two on March 21, 2005, based on the employee's motion for a voluntary dismissal.

Following ore tenus proceedings on September 6, 2006, the trial court entered its final judgment on October 23, 2006. By a separate order entered that same day, the trial court adopted the proposed findings of fact and conclusions of law submitted by the employee's attorney. Those findings of fact and conclusions of law indicated, among other things, that the parties had stipulated that the only disputed issue for trial was the extent of the employee's disability. The findings of fact and conclusions of law further stated that the employee was permanently and totally disabled as a result of his December 1, 2003, back injury. In its order adopting those findings and conclusions, the trial court stated:

"The Court is of the opinion that due to the [employee's] injury and resulting damage to his back, ... his disability is substantial and fixed. The Court is further of the opinion that there is no reasonable expectation that the [employee] is employable or will become employable in the competitive job market with his education, training, experience and medical condition. This is compounded by the necessity for the use of strong narcotic and narcotic-like drugs necessary to manage the [employee's] pain."

However, the findings of fact and conclusions of law did not contain any reference to the employee's need for narcotic or narcotic-like medications to manage his pain. The employer filed a motion to alter, amend, or vacate the judgment or, in the alternative, for a new trial on November 17, 2006. The trial court denied that motion on January 30, 2007. The employer filed its notice of appeal on February 26, 2007.

Issues

The employer argues that the record does not contain substantial evidence indicating that the employee's back condition was medically caused by his work-related accident. The employer also argues that the record does not contain substantial evidence indicating that the employee's work-related accident resulted in his being permanently and totally disabled.

Standard of Review

In a workers' compensation action, "[i]n reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence." Ala.Code 1975, § 25-5-81(e)(2). "Substantial evidence" is "`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 Indus., Inc., 680 So.2d 262, 268 (Ala.1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989), in turn citing Ala.Code 1975, § 12-21-12(d)).

Facts

At the time of the trial, the employee was a 39-year-old high-school graduate who was residing in Anniston. He had attended six months of community college and had worked for two employers since graduating from high school in 1985. He first worked for three years as a warehouseman for Chalk Line, Inc. In October 1987, he began working for the employer; he worked for the employer until February 2004. The employer builds ladders. For the first three months of his employment with the employer, the employee worked as a general laborer. For the next 16 years, he worked in the extrusion department; he worked the first 10 years as a press operator and the final 6 years as a maintenance mechanic. The employee described his job duties as being very physically demanding.

On December 1, 2003, the employee felt a catch in the lower left side of his back while swinging a 10- to 12-pound sledgehammer as part of his work duties. After resting for 10 minutes, the employee attempted to again swing the sledgehammer, and again he felt a catch in his back, only this time he could not straighten up. The employee immediately reported the injury to his supervisor and then reported to the health and safety department. After filling out an accident report at the employer's request, the employee visited Dr. W. Louis Stokes.

The employee testified that Dr. Stokes examined him and told him that he had strained his back muscles. Dr. Stokes prescribed pain medication and muscle relaxants for the employee and scheduled him for physical therapy. The employee attempted physical therapy the next day, but, according to the employee, the therapist discharged him at that time back to the care of Dr. Stokes. On December 16, 2003, Dr. Stokes ordered an MRI of the employee's lumbar spine; the MRI was performed on December 29, 2003. The MRI showed a small central disk protrusion at the L5-S1 level that was slightly more prominent on the left. Dr. Robert Eichelberger, the radiologist who read the MRI, wrote in his report that he believed the MRI did not look clinically significant but that it might be misleading because of the employee's positioning during the test. Based on this MRI, Dr. Stokes referred the employee to a neurosurgeon, Dr. Randall George, for surgical evaluation.

The employee testified that Dr. George performed a cursory examination and concluded that the employee suffered from mechanical low-back pain. Dr. George did not offer any medication or treatment other than returning the employee to work on light duty and informing the employee that he would simply have to live with his back pain. At that time, according to the employee, he was experiencing burning in his left hip and numbness and tingling in his left leg. Dr. George's report indicates that he diagnosed the employee with mechanical low-back pain along with a small central disk protrusion with dessication at the L5-S1 disk. Dr. George instructed the employee regarding isometric back-strengthening exercises, a daily walking program, and proper posture and lifting habits, and he gave the employee a back belt and prescribed medication, including Ultram and Parafon Forte. Dr. George noted in his records that he would see the employee again on an as-needed basis.

The employee did not believe that Dr. George had adequately examined him, so he requested to see another doctor. The employer's representative agreed to furnish the employee a panel of four doctors from which he could select a new physician. See § 25-5-77(a), Ala.Code 1975. A "couple of weeks later" the employee received the panel of four doctors and selected Dr. Dewey Jones III.

The employee first saw Dr. Jones on February 18, 2004. Dr. Jones indicated that he wanted the employee to submit to a myelogram and EMG studies. The employee testified that the employer's workers' compensation insurance carrier submitted the request for a myelogram to a review procedure and that the request was originally denied; however, after Dr. Jones corresponded with the carrier for "a month or two," the carrier eventually approved the procedure.

After the accident, the employee had been working light duty. In February 2004, while awaiting approval of the myelogram, the employee was informed that he had been released to full duty. A few days later, the employer informed the employee that it intended to have a general reduction in force. The employer offered the employee a job in which he would be earning $7 to $8 per hour less than he was earning in his mechanic position. The employee testified that he was concerned that he could not physically perform the offered position and that he wanted to wait until after an upcoming medical appointment to decide whether to accept the job. According to the employee, the employer gave him 24 hours to accept or decline the offer. The employee went to the doctor the next day. The employee testified that, by the time he talked to human resources, he had already been discharged.

The employee underwent the myelogram on May 20, 2004. By that time, according to the employee's trial testimony, in addition to the persistence of his earlier symptoms, the employee's left leg had begun "giving out," causing him to fall down several times. The employee testified that the myelogram showed a pinched nerve. Dr. Jones's records indicate that the myelogram was inconclusive. Dr. Jones ordered epidural steroid blocks to address the employee's numbness and other left-leg symptoms. In addition, Dr. Jones prescribed narcotic pain medication, nerve stimulants, and muscle relaxants for the employee. By June 28, 2004, Dr. Jones felt that the employee had reached maximum medical improvement and that he could be released to some kind of light or limited work. Dr. Jones's records indicate that he diagnosed the employee with mechanical low-back pain and that that pain had resulted in the employee's having a 5% permanent impairment.

The employee returned to Dr. Jones in September 2004 with complaints of persistent pain around his left hip and buttock. Dr. Jones ordered a morphine block. The employee testified that the morphine prompted an allergic reaction; however, Dr....