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04/14/95 BENJAMIN REED v. JAMES R. FINCHER TIMBER

April 14, 1995

BENJAMIN REED
v.
JAMES R. FINCHER TIMBER COMPANY, INC.



Appeal from Mobile Circuit Court. (CV-94-000026).

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

The opinion of the court was delivered by: Thigpen

THIGPEN, Judge

This is a workers' compensation case.

In January 1994, Benjamin Reed filed a complaint, alleging that he was injured on November 10, 1992, while working in the line and scope of his employment with James R. Fincher Timber Company, Inc. (Fincher Timber). Reed further alleged that he was permanently disabled as a result of this accident. Ultimately, the parties stipulated to the date of the injury, the medical expenses paid, Reed's average weekly wages, the amount of temporary total disability benefits paid until November 1993, and that Reed was injured in the line and scope of his employment. Thus, the only issue before the trial court was whether Reed had suffered a permanent total disability or a permanent partial disability.

In September 1994, following ore tenus proceedings, the trial court awarded Reed permanent partial disability benefits, finding that he had "suffered a substantial, but not total disability, and had sustained a 70% decrease in earning capacity as a result of the subject accident." Reed appeals.

The two issues Reed raises are: (1) whether there is substantial evidence to support the trial court's finding that Reed sustained only a permanent partial disability rather than a permanent total disability, and (2) whether the trial court erred in failing to consider Reed's age, his level of education, and his experience in determining a post-injury wage earning capacity.

Reed testified that he was employed as a manual laborer with Fincher Timber on the day of his injury. He testified that he was injured when he and others were cutting a tree and it fell on him. Reed suffered multiple injuries, including fractures of the spine. After approximately two weeks in intensive care, Reed was transferred to other facilities for therapy and rehabilitation.

Reed testified that he quit school at age 17, completed the 7th grade, and performed manual labor jobs before entering the military service. Reed testified that he was assigned a 40% disability or impairment rating by the Veterans Administration (VA) for injuries he received in Vietnam, and that he receives lifetime disability payments of approximately $498 per month for those injuries. After leaving the military service and completing rehabilitation for those injuries, Reed performed manual labor jobs in the construction and timber industries, until this injury. Reed testified that before this injury, he averaged working 10 hours daily, either 5 or 6 days each week, and that his military injuries did not prevent him from performing strenuous work.

Reed testified that since this injury, he has had pain, back problems, mobility problems, and a "weak leg," and that he walks with a cane. He further testified that he had not possessed a valid driver's license for quite a while because of 10 DUI convictions, but that relatives and neighbors had provided his transportation to work. On cross-examination, however, Reed admitted that he usually did not require medication during the day, that he did not have any problems with walking, and that on a scale of 1 to 10, with 1 being practically no discomfort, he rated his pain as ranging from 2 to 4. Evidence also revealed that Reed walked with a limp before this work-related injury.

Reed's treating physician, Dr. James L. Perrien, testified by deposition that although Reed had reached maximum medical improvement, he will continue to improve in other ways, and that his pain may resolve with time. Dr. Perrien testified that Reed was taking only one type of medication and that a work capacities evaluation suggested that Reed could do sedentary work. Bill Vinson, Reed's vocational expert, testified that Reed was illiterate and had no transferable skills. Vinson further testified that Reed was unemployable because of his serious physical limitations and his limitations relating to his rural residential area and his dependency on others for transportation. He further testified that nothing in Reed's work history had prepared Reed for sedentary work, which was, according to Vinson, probably all that Reed could do. Vinson testified that Reed's intellect limited him to unskilled sedentary jobs and that Reed had lost access to approximately 99% of all jobs.

Sharon Phillips, an occupational therapist familiar with Reed's case, testified that Reed could perform sedentary work in a position that would permit frequent changes in positions from sitting to standing.

John Sellars, a vocational consultant, testified that he had reviewed information regarding Reed, including medical records, notes, and depositions, and that he had interviewed Reed. Sellars testified that Reed indicated no motivation or ability to overcome his problems. Sellars testified that, in his opinion, Reed was not 100% permanently and totally disabled, that he could perform sedentary work, and that he had assigned Reed a disability or vocational impairment rating of 69.5%. While Sellars admitted that it would be difficult to place Reed in a job, he testified that there were sedentary-type jobs in Reed's geographical area that he could perform, particularly in the timber industry, because he lived in a heavy timber industry area. Sellars further stated that although Reed's physician had stated that Reed could still work, Reed perceived himself as totally disabled. He further testified that Reed's lifestyle and self-defeating or self-destructive behaviors, including drinking and heavy smoking, were not conducive to a good motivation.

Both parties submitted trial briefs, with Reed arguing that he suffered a permanent total disability, and Fincher Timber arguing that Reed suffered only a permanent partial disability. Fincher Timber also contended that the trial court should deduct the VA's 40% disability rating ...


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