Whitsett v. BAMSI, Inc.

• Decision Date: 09 December 1994
• Citation: 652 So.2d 287
• Court: Alabama Court of Civil Appeals
• Parties: Leonard WHITSETT v. BAMSI, INC. AV93000525.

Page 287

652 So.2d 287

Leonard WHITSETT v. BAMSI, INC.

AV93000525.

Court of Civil Appeals of Alabama.

Dec. 9, 1994.

J. Barton Warren of Watson, Gammons & Fees, P.C., Huntsville, for appellant.

H. Nelson Camp, Huntsville, for appellee.

ROBERTSON, Presiding Judge.

On April 20, 1993, Leonard Whitsett filed a complaint in the Madison County Circuit Court, seeking workers' compensation benefits. Whitsett alleged that he suffered permanent total disability as a result of almost being electrocuted on August 15, 1992, while working on high voltage electric wires at Redstone Arsenal and that his injuries arose out of and in the course of his employment with BAMSI, Inc.

Following an ore tenus proceeding, the trial court entered a judgment which found, inter alia, that Whitsett had a 75% loss of earning capacity (75% permanent partial disability). The trial court awarded benefits accordingly.

Whitsett appeals, raising one issue: Whether the trial court erred by failing to find him permanently and totally disabled.

Whitsett's injuries occurred on August 15, 1992; therefore, this case comes under the new Alabama Workers' Compensation Act (new Act). ¹

The new Act provides that "[t]he decision of the [trial] court shall be based on a preponderance of the evidence as contained in the record of the hearing, except in cases involving injuries ... from gradual deterioration or cumulative physical stress disorders, which shall be deemed compensable only upon a finding of clear and convincing proof that those injuries arose out of and in the course of the employee's employment." § 25-5-81(c), Ala.Code 1975 (emphasis added).

The new Act further provides that, "[i]n reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness." § 25-5-81(e)(1) (emphasis added). This, essentially, does not change the existing law of Alabama. The standard of proof required is a legal issue, and our supreme court has consistently held that the trial court's conclusions of legal issues carry no presumption of correctness on appeal. Ex parte Cash, 624 So.2d 576 (Ala.1993); Moore v. McNider, 551 So.2d 1028 (Ala.1989); Williams v. Nearen, 540 So.2d 1371 (Ala.1989); and League v. McDonald, 355 So.2d 695 (Ala.1978).

The new Act also provides that "[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." § 25-5-81(e)(2) (emphasis added). This is a major change in this court's standard of review of the trial court's findings of fact and its judgment based on those findings as set out in Ex parte Eastwood Foods, Inc., 575 So.2d 91 (Ala.1991), and Ex parte Veazey, 637 So.2d 1348 (Ala.1993). Heretofore, this court could look only to see if there was any legal evidence (scintilla) to support the trial court's findings, and, if so, whether any reasonable view of that evidence supported the trial court's judgment. Eastwood Foods; Veazey.

We must now determine what our new standard of review on appeal will be for cases that are governed by the "substantial evidence ² rule" under the new Act. Because we have no definitive standard of review for cases arising under the new Act, we must develop one. To do this, we look to other sources for guidance.

Our supreme court has held that Minnesota's construction of its workers' compensation laws is a source of persuasive value and guidance in these situations. Eley v. Brunner-Lay Southern Corp., 289 Ala. 120, 266 So.2d 276 (1972); Young v. Mutual Savings Life Insurance Co., 541 So.2d 24 (Ala.Civ.App.1989); Buchanan v. Pankey, 531 So.2d 1225 (Ala.Civ.App.1988).

In 1983, the Minnesota Legislature amended that state's Workers' Compensation Act, Minn.Stat. § 176.001 et seq. (1992), making major revisions in the standard of appellate review of workers' compensation cases. In Minnesota, the initial hearing of a workers' compensation case is before a compensation judge (administrative law judge). The compensation judge's award or disallowance of compensation may be appealed to the workers' compensation court of appeals (WCCA). ³ Minn.Stat. § 176.421 (1992). One of the grounds for appellate review before the WCCA is that "the findings of fact and order were ... unsupported by substantial evidence in view of the entire record...." Minn.Stat. § 176.421 subd. 1(3) (1992).

The Minnesota Supreme Court then defined the WCCA's new standard of review of the compensation judge's findings and order as follows:

"The standard of review--whether the findings and order are supported by substantial evidence--means the findings are to be affirmed if, in the context of the record as a whole, they are supported by evidence that a reasonable mind might accept as adequate.

"In applying this standard, the [WCCA] looks not only at the evidence which supports the compensation judge's findings, but also at the opposing evidence and the evidence from which conflicting inferences might be drawn. The evidence, in a sense, is weighed to determine its substantiality. This is what is meant by viewing 'the entire record as submitted.' "

Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59 (Minn.1984) (citations omitted).

The WCCA may "substitute for the findings of fact made by the compensation judge [different] findings based on the total evidence"; it can "make or modify an award or disallowance of compensation ... based on the facts, findings, and law...." Minn.Stat. § 176.421 subd. 6(3) and (4) (1992). The WCCA weighs the evidence, and it can substitute its judgment for that of the compensation judge. Hengemuhle, supra.

A judgment, or other order, by the WCCA may then be reviewed by the Minnesota Supreme Court. One of the grounds for review by the Minnesota Supreme Court is that "the findings of fact and order were unsupported by substantial evidence in view of the entire record as submitted." Minn.Stat. § 176.471 subd. 1(3) (1992). The Minnesota Supreme Court framed its new standard of review of the decisions of the WCCA as follows: "The facts are viewed in the light most favorable to the findings of the WCCA. [The] WCCA decisions will be overturned only if 'it appears that the findings are manifestly contrary to the evidence or that it is clear reasonable minds would adopt a contrary conclusion.' " Johnson v. City of Plainview, 431 N.W.2d 109, 112 (Minn.1988) (quoting Hengemuhle, 358 N.W.2d at 61).

This court does not wish to weigh the evidence on appeal as the WCCA does; therefore, for guidance we elect to look to the standard of review applied by the Minnesota Supreme Court in its review of the decisions by the WCCA.

Therefore, we adopt the following standard of review of workers' compensation cases under the new Act: We will view the facts in the light most favorable to the findings of the trial court. The trial court's judgment will not be reversed unless it is clear that the trial court's findings are manifestly contrary to the evidence as contained in the record as a whole or unless it is clear that fair-minded persons in the exercise of impartial judgment would adopt a contrary conclusion.

We now address the merits of this appeal under our new standard of review.

Whitsett contends on appeal that "[t]he overwhelming evidence at trial indicated that [he] was permanently and totally disabled." BAMSI did not cross-appeal; it contends that there was substantial evidence to support the trial court's finding of a 75% permanent partial disability.

Consequently, we must affirm unless we determine that the trial court's finding of a 75% permanent partial disability was manifestly contrary to the evidence as a whole or that fair-minded persons in the exercise of impartial judgment would have adopted the conclusion that Whitsett suffered permanent total disability.

The parties stipulated that on August 15, 1992, the relationship of employer/employee existed between BAMSI and Whitsett, and that Whitsett was injured by an accident while performing the duties of his employment with BAMSI.

The record evidence reflects the following facts. Whitsett testified that he was disconnecting and grounding a powerline on Redstone Arsenal when there was a power backfeed out of a substation and he was hit with 4,160 volts of electricity. As a result of the electrical shock, he was blinded and had difficulty getting the bucket in which he was working down to ground level. He suffered burns to both hands, his chest, his face, and his left arm. His hair was burned, his clothes were almost burned off of his body, the lenses of his glasses were burned out of the frames, and he suffered severe burns in his genital area. He was taken to Huntsville Hospital, but he testified that he did not remember much of the treatment he received, because he was in shock.

Whitsett also testified that, since the accident, he experiences double vision, he has problems sleeping, and his left hip gives out unexpectedly, causing him to fall. Whitsett also loses his hearing when he bends over to tie his shoes, he has problems with his balance, and he has extremely high blood pressure, Whitsett's medical records reveal that immediately after the accident his blood pressure was 200 over 120 and later had risen to 210 over 126. Whitsett has continuous tremors in his right hand and the skin on his face continues to crack and bleed. The record reflects that Whitsett had not had high blood pressure, problems with his hearing, or any other medical problems before the accident.

Whitsett has been unable to work since the accident and his only income has been workers' compensation benefits. He testified that he was 62 years old and that he had completed the eighth grade in school. Whitsett's only training was as an apprentice electrician with a utility contractor. Whitsett had been a high-voltage electrician since 1948 and he had never had a "desk job" in his life. Before working for BAMSI,...