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11/04/94 SULLIVAN v. CAREY LANE GOODWIN

November 4, 1994

SULLIVAN, LONG & HAGERTY, INC.
v.
CAREY LANE GOODWIN



Appeal from Jefferson Circuit Court. (CV-90-5826). Roger Monroe, TRIAL JUDGE.

Rehearing Denied January 6, 1995. Certiorari Denied March 24, 1995. Released for Publication August 8, 1995.

Thigpen, Judge. Robertson, P.j., and Yates, J., concur.

The opinion of the court was delivered by: Thigpen

THIGPEN, Judge

This is a workmen's compensation case. *fn1

Carey Lane Goodwin filed a complaint in August 1990, alleging that he had injured his right knee in the course of his employment with Sullivan, Long & Hagerty, Inc. (Sullivan). Following an ore tenus proceeding, the trial court entered a judgment finding that Goodwin had suffered a 36% loss in his ability to earn. Sullivan's post-judgment motion was denied; hence, Sullivan appeals. The trial court awarded Goodwin compensation, but declined to award Goodwin interest and penalties and to include fringe benefits in the computation of the average weekly wage; hence, Goodwin cross-appeals.

This case was tried without a court reporter and the judgment reveals that the parties stipulated to the following pertinent facts:

"1. While employed by [Sullivan], [Goodwin] on August 2, 1988 and May 2, 1989, suffered injury to his right knee by accident arising out of and in the course of that employment.

"2. The injury by accident on the two dates referenced in 1. next above, resulted in a total medical impairment of 30-35% to the right lower extremity.

"3. [Goodwin]'s average weekly wage at all relevant times was $578.80. With reservation depending on ERISA case. (He had fringe benefits.) [Goodwin] contends fringe benefits should be included.

"4. [Goodwin] is 51 years old, has a high school education, and has worked in sheet metal worker jobs since 1961 (at least 10 of these have been supervisory).

"5. There are $140.00 in unpaid medicals to date under Alabama Code § 25-5-77.

"6. If called to testify, [Goodwin]'s vocational specialist, Claude Peacock, would testify that [Goodwin] currently is 36%-40% vocationally disabled (this figure does not consider jobs that would be available if [Goodwin] were given reasonable accommodations).

"7. The sole remaining issues for trial are the extent of [Goodwin]'s permanent partial disability inclusion and exclusion of fringes in average weekly wage, and any penalty on TTD [temporary total ...


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