Appeal from Jefferson Circuit Court. (CV-93-659). Arthur J. Hanes, TRIAL JUDGE.
Rehearing Overruled November 18, 1994, . As Amended. Released for Publication March 10, 1995.
Robertson, Thigpen, Yates
The opinion of the court was delivered by: Robertson
ROBERTSON, Presiding Judge
On April 16, 1989, Marsha Ann Ingram suffered a back injury arising out of and in the course of her employment with Brookwood Health Services, Inc., when she slipped and fell on the wet floor of an operating room at Brookwood Hospital. On January 26, 1993, Ingram filed a complaint in the Circuit Court of Jefferson County, seeking workmen's compensation benefits. *fn1
Following an ore tenus proceeding, the trial court entered a judgment on November 10, 1993, finding that Ingram had suffered a compensable injury within the meaning of the Workmen's Compensation Act. The trial court calculated Ingram's average weekly earnings as follows:
"As proof of average weekly wages, [Ingram] has introduced many records, including [her] exhibit 9, which is a summary of those records. Adding [Ingram's] gross income as proven to the tax deferred compensation, plus one-half of [her] tax deferred compensation [from Brookwood's] employer contribution, plus $62.93 weekly fringe benefit, the court finds [Ingram's] average weekly wage at the time of the injury to be $380.14 per week."
The trial court also found that Ingram had a preexisting disability within the meaning of § 25-5-58, Ala. Code 1975. Taking into account only Ingram's injury from her April 1989 accident, the trial court found that she had suffered a 37% loss of the ability to earn. The trial court stated that Brookwood had compensated Ingram for 204 4/7 weeks of temporary total disability. Thus, using the formula provided for in § 25-5-57(a)(3)g., Ala. Code 1975, the trial court awarded her compensation in the amount of $93.77 per week for 95 3/7 weeks, less the number of weeks, if any, for which she had received temporary total disability benefits since July 30, 1993.
Ingram appeals, raising three issues: (1) whether the trial court correctly calculated her average weekly earnings; (2) whether the trial court correctly found that she had a preexisting disability at the time of her injury; and (3) whether the trial court correctly determined that Ingram was not permanently and totally disabled as a result of her injury.
We first consider whether the trial court incorrectly calculated Ingram's average weekly earnings. Section 25-5-57(b) provides, in pertinent part:
"Average weekly earnings shall mean the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury divided by 52, but if the injured employee lost more than seven consecutive calendar days during such period, although not in the same week, then the earnings for the remainder of such 52 weeks shall be divided by the number of weeks remaining after the time so lost has been deducted. . . . Whatever allowances of any character made to an employee in lieu of wages [that] are specified as part of the wage contract shall be deemed a part of his earnings."
(Emphasis added.) This formula is mandatory upon the trial court when one claiming workmen's compensation benefits has worked for the same employer for 52 weeks preceding his or her injury. Johnson v. Cullman Medical Center, 615 So. 2d 621 (Ala. Civ. App. 1992). However, the claimant bears the burden of proving what the average weekly earnings were. Shields v. GTI Corp., 607 So. 2d 253 (Ala. Civ. App. 1992).
The record reflects that Ingram worked for Brookwood for almost five years preceding her injury. Exhibits introduced at trial reflect that, during the 52-week period before her April 1989 injury, Ingram had earned $15,492.21, not including Brookwood's weekly payment of $62.93 toward her medical and dental insurance throughout the 52 weeks preceding her April 1989 injury; her contribution of $668.83 to a tax-deferred savings plan; and Brookwood's contribution of $334.42 to that plan as a 50% employer contribution. *fn2 The trial court took those benefits into account in calculating Ingram's average weekly earnings. § 25-5-57(b); Ex parte Murray, 490 So. 2d 1238 (Ala. 1986).
Ingram argues that her gross earnings should be divided by 36 because, she says, she worked only 36 weeks during the 52 weeks preceding her April 16, 1989, injury. Ingram testified that she had missed eight weeks of work in May, June, and July 1988 and that she had missed an additional week when her father had died in February 1989. There was also undisputed evidence from her payroll records that during the 52 weeks preceding her injury there were several periods during which she "lost more than seven consecutive calendar days" from her employment, i.e., more than seven consecutive calendar days ...