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12/09/94 LEONARD WHITSETT v. BAMSI

December 9, 1994

LEONARD WHITSETT
v.
BAMSI, INC.



Appeal from Madison Circuit Court. (CV-93-735). Thomas Younger, TRIAL JUDGE.

Released for Publication March 10, 1995.

Robertson, Presiding Judge, Thigpen and Yates, JJ. concur

The opinion of the court was delivered by: Robertson

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). *fn1

The new Act provides that "the 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, "in 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 "in 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 *fn2 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). *fn3 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 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. ยง 176.421 subd. 6(3) and (4) (1992). The WCCA weighs the evidence, and it ...


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