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02/10/95 ASPLUNDH TREE EXPERT COMPANY v. DAVID

February 10, 1995

ASPLUNDH TREE EXPERT COMPANY, INC.
v.
DAVID DWIGHT LATHAM



Appeal from Pickens Circuit Court. (CV-93-003). James Moore, TRIAL JUDGE.

Rehearing Overruled March 10, 1995, . Released for Publication June 27, 1995.

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

The opinion of the court was delivered by: Yates

YATES, Judge

David Latham sued Asplundh Tree Expert Company, Inc., to recover workmen's compensation benefits for an injury to his right shoulder that occurred on January 4, 1991. *fn1 After an ore tenus proceeding, the trial court found Latham to be permanently and totally disabled, and it awarded benefits accordingly. Asplundh appeals, contending (1) that the evidence does not support a finding of permanent and total disability and (2) that the trial court erred in finding Latham to be permanently and totally disabled although, Asplundh alleges, Latham refused vocational rehabilitation.

We note that the test for total disability is the inability to perform one's trade and to obtain other reasonably gainful employment. The employee is not required to be completely helpless or to suffer total physical disability. Trans Mart, Inc. v. Brewer, 630 So. 2d 469 (Ala. Civ. App. 1993). It is the trial court's duty to make some determination as to the extent of disability. Southern Lifestyle Homes v. O'Rear, 628 So. 2d 645 (Ala. Civ. App. 1993).

The standard of appellate review in workmen's compensation cases is a two-step process. This court must first determine if there is any legal evidence to support the trial court's findings. If it finds such evidence, it must then determine whether any reasonable view of that evidence supports the trial court's judgment. Ex parte Eastwood Foods, Inc., 575 So. 2d 91 (Ala. 1991).

Latham testified that he has had four surgeries to repair his damaged shoulder, but that he continues to experience pain and numbness in his shoulder, chest, and arm. He stated that he continues daily to do therapeutic exercises prescribed by his physician and therapist, but he says "the pain is always there."

Latham further testified that he forces himself to do things in spite of the pain. One of Latham's treating physicians referred him to a psychiatrist to "help him deal with the chronic pain that he was having and other emotional problems that always come into play in a patient that has chronic pain." The psychiatrist diagnosed Latham as having "major depression" that was "proximately caused by the injury" and as having an "anxiety disorder" that was "exacerbated by his injury." He prescribed antidepressant and anxiety medications. However, Latham stated that he had stopped taking his medications because of what he called unwanted side effects that he said affected his relations with his family. He said that although he wanted and needed the medications, he would rather deal with the pain than lose his family.

Dr. Steven Ikard, the orthopedic surgeon who first operated on Latham, stated in deposition that he gave Latham a medical impairment rating of 30% to the upper extremity and 18% to the body as a whole. Dr. William Garth, an orthopedic surgeon who performed additional operations on Latham, stated in deposition that he gave Latham a medical impairment rating of 20% to the upper extremity and 12% to the body as a whole. Dr. Garth also stated that Latham "may very well end up being [100%] disabled from being a heavy tree surgeon." Both doctors suggested that Latham could return to light work if he was restricted from lifting heavy objects and doing overhead work.

Dr. Patrick Atkins, the psychiatrist who treated Latham, stated in deposition that he had encouraged Latham to undergo a vocational rehabilitation and skills assessment to determine what kind of work he could perform, but that Latham, who had an eighth-grade education, was opposed to the idea, partly because of his depression and also partly because of his perception that he could not be retrained or reeducated. We note that "Medical testimony is not the only factor that a trial court may consider in determining a loss of earning ability." Redi Roast Products, Inc. v. Burnham, 531 So. 2d 664, 667 (Ala. Civ. App. 1988).

Vocational experts gave conflicting testimony. Dr. Robert Griffin testified that, based solely on the testimony of Latham's three treating physicians and the limitations that they imposed on him, he gave Latham a vocational disability rating of 35%. However, he went on to state that if Latham's complaints of pain were true, he would have a 100% disability rating. He also stated that Latham presently could not perform any of the jobs he had done in the past. Ms. Susan Robbins gave Latham a 48.5% vocational disability rating; she did not consider Latham's own statements of pain.

This court has stated, "An injured employee's own subjective complaints of pain are legal evidence which may support a finding of disability." Jim Walter Resources, Inc. v. Budnick, 619 So. 2d 926, 927 (Ala. Civ. App. 1993). Further, "The trial court is afforded much discretion in determining an employee's loss of earning capacity and may consider such factors as the age, education, and work history, as well as the effect of the ...


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