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02/03/95 RICHARD D. BOOTHE v. JIM WALTER RESOURCES

February 3, 1995

RICHARD D. BOOTHE
v.
JIM WALTER RESOURCES, INC.



Appeal from Jefferson Circuit Court. (CV-92-0760). Josh Mullins, TRIAL JUDGE.

Rehearing Overruled March 10, 1995, . Certiorari Denied April 14, 1995. Released for Publication October 2, 1995.

Thigpen, Judge. Robertson, P.j., and Yates, Monroe, and Crawley, JJ., concur.

The opinion of the court was delivered by: Thigpen

THIGPEN, Judge

Richard D. Boothe (employee) appeals a judgment awarding him workmen's compensation benefits *fn1 for an 80% permanent partial disability. Jim Walter Resources, Inc., was his employer.

Boothe, who was 32 years old at the time of trial, had been employed by the employer in 1985 or 1986. At the time of his initial injury in 1989, he was employed in one of the employer's mines as an electrician, and he injured his back while lifting an object. After receiving conservative treatment, he underwent back surgery, and after approximately six months, he returned to work; however, he testified that his back continued to bother him. After his return to work, he injured his knee, and this injury also required surgery and physical therapy.

Subsequently, the employee suffered yet another back injury in February 1991 while lifting a reel of cable. Following conservative treatment, including nerve blocks, surgical repair of a lateral disc herniation was performed in October 1992. His pain continued and further nerve blocks were performed. The employee contends that a preexisting duodenal and peptic ulcer condition was aggravated by anti-inflammatory medication prescribed for his back, to the extent that further surgery, which he says was required, resulted in the side effect of causing him to lose control of his bowels.

The employer's expert witness, a vocational consultant, testified that Boothe had a vocational disability of 72%, while Boothe's witness said he had a vocational disability of 90%, without granting any weight to Boothe's complaints of pain. Boothe's expert testified that if weight were given to his complaints of pain, "then I don't think he could work at all."

Following ore tenus proceedings, the trial court found that the employee had, inter alia, sustained an 80% permanent partial disability, and it awarded benefits accordingly, reducing the award by $6,780 for permanent partial disability benefits previously paid.

The employee appeals, contending that the manner in which the judgment was prepared and entered violates Ala. Code 1975, § 25-5-88; that no reasonable view of the evidence supports the trial court's determination of an 80% disability; and that the trial court erred in deducting the amount of prepaid permanent partial disability benefits to determine the compensation owed pursuant to Ala. Code 1975, §§ 25-5-57 and 25-5-58.

Following ore tenus proceedings and after taking the matter under advisement, the trial court addressed a communication to both parties on February 1, 1994, stating:

"I have carefully reviewed the briefs, deposition, exhibits and records submitted in the case.

"I have concluded that the plaintiff has sustained eighty percent (80%) permanent partial disability due to his work related injuries, and that the defendant/employer should cover ...


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