Fab Arc Steel Supply, Inc.
Timothy Michael Dodd
As Corrected August 5, 2015.
Appeal from Calhoun Circuit Court. (CV-12-900181).
APPLICATION GRANTED; OPINION OF AUGUST 29, 2014, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
MOORE, Judge. Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ., concur.
On Application for Rehearing
This court's opinion of August 29, 2014, is withdrawn, and the following is substituted therefor.
Fab Arc Steel Supply, Inc. (" the employer" ), appeals from a judgment entered by the Calhoun Circuit Court (" the trial court" ) finding that Timothy Michael Dodd (" the employee" ) was permanently and totally disabled as a result of a June 23, 2010, workplace accident and awarding the employee benefits pursuant to the Alabama Workers' Compensation Act (" the Act" ), Ala. Code 1975, § 25-5-1 et seq. We affirm in part and reverse in part.
On April 12, 2012, the employee filed an action in the trial court seeking benefits pursuant to the Act. The employee asserted that, on June 23, 2010, he was employed as a structural-steel-fabricator fitter with the employer; that, on that date, he sustained a work-related injury when he was unexpectedly hit in the chest and abdomen by a " C-clamp" that was attached to a steel beam weighing approximately 1,500 pounds; that, as a result of the work-related accident, he suffered injuries to his abdomen, chest, neck, and back; that he received medical treatment authorized by the employer; and that the employer had accepted liability for a " hematoma" to the employee's chest and abdomen but had denied liability under the Act for the injuries sustained to his lower back and cervical spine and related problems. The employee asserted that he was totally disabled as a result of the June 23, 2010, injuries.
On March 26, 2013, the trial court conducted an ore tenus hearing, at which the parties presented a joint stipulation of facts and the employee and three of his coworkers testified. The parties also admitted into evidence numerous medical records and the deposition testimony of Dr. John Valente and Dr. James White III.
On April 12, 2013, the trial court entered its judgment. In that judgment, the trial court made, among others, the following findings of fact and conclusions of law:
" 48. ... [T]he [employee] has described to this Court the traumatic event with a 1,500 pound beam which occurred
on June 23, 2010, which 'pulverized him.' The Court has considered the evidence emphasized by the [employer] and [its] position that [the employee's] accident was no more than contact with a football. However, Drs. Valente and White confirm the permanent physical conditions the [employee] currently experiences can be a product of trauma and conclude that the accident described by the [employee] is consistent with their medical findings. The [employee] has denied experiencing any other physical trauma following the accident of June 23, 2010, and no evidence to the contrary has been provided to the Court. The Court therefore finds that the trauma which the [employee] experienced on June 23, 2010, was sufficient so as to cause the injury and symptoms the [employee] now experiences.
" 49. This Court carefully observed the [employee] during the trial [and] carefully observed his demeanor ... during his extended course of direct and cross-examination. This Court has carefully considered the evidence concerning the effects of the injury sustained by [the employee] on June 23, 2010. The Court noted the appearance of discomfort that the [employee] experienced during this trial, the difficulty he had sitting for more than 20-30 minutes as well as the discomfort and pain he exhibited when he was attempting to show his ability to extend his arms with apparent discomfort and pain in the sternum and chest. The Court notes the problems in the abdominal wall, [and] chest including costochondritis and disruption of the tissue in the sternum and abdominal area in addition to a herniated disc in the lumbar spine. The substantial evidence supports the obvious conclusion that these conditions are the result of the traumatic blow to the chest and abdomen. They are sufficiently severe to prevent [the employee] from effectively using his arms in an industrial or extended work setting.
" 50. This Court is convinced that the testimony of the [employee] is credible and is further consistent with the evidence and testimony submitted before the Court. The [employee's] history evidences a strong work ethic and on June 23, 2010, he was working for the [employer], performing the full scope of his job without limitation or restriction. The Court's own observations are that the [employee's] current limitations are significant and [the employee] appeared to be struggling with pain.
" 51. Having considered the entirety of the evidence, the Court finds that the [employee] has experienced an injury causing permanent damage to the nerves in his upper torso or abdomen and chest. He has also injured his lumbar spine as well as his abdomen and chest as a result of the original injury which occurred on June 23, 2010. Although the [employee] indicates he has pain and symptoms in his neck, there does not at this time exist any evidence to support a course of medical treatment.
" 52. The Court further specifically finds and determines that the [employee] does not have the physical ability to engage in reasonable and substantial gainful employment as a direct and proximate result of the injuries he sustained while working for the [employer] on June 23, 2010. This Court believes that this finding is consistent and reasonable, given the [employee's] age, his education, current physical condition and past work experience. The Court does specifically find that in his current condition, [the employee] is not a viable candidate for vocational rehabilitation. The credible evidence establishes that
[the employee's] pain is consistent with the serious trauma he experienced; it is chronic, intractable, and sufficiently so severe as to limit him with many activities of daily life.
" 53. The Court finds that the explanation offered by the [employer] as to the basis for [the employee's] termination of employment on September 1, 2010, is without merit and thus finds that the [employee] is entitled to receive temporary total disability benefits at the rate of $315.84, from September 1, 2010, through February 24, 2011, the date the [employee] was determined to have attained maximum medical improvement by company assigned physician, [Dr.] C.B. Thuss. Thereafter, the [employee] shall be entitled to permanent total disability benefits as the Judgment hereinafter directs. The Court finds that [the employee's] condition on February 24, 2011, was totally disabling and although Dr. White, [the employee's] personal physician, has offered a surgical intervention to [the employee's] lumbar spine, this Court determines that in his current condition, the [employee] remains permanently and totally disabled as a result of his on-the-job injury with the [employer] on June 23, 2010. Furthermore, there is no evidence that the suggested surgery would improve the [employee's] chest and abdomen area, the most painful conditions affecting the [employee], according to his testimony and the medical evidence.
" CONCLUSIONS OF LAW
" 54. It is the trial court's duty to determine the extent of disability.
Simmons v. Goodyear Tire & Rubber Co., 631 So.2d 1055 (Ala.Civ.App. 1993). In making its determination, the trial court is not bound by expert testimony, and may consider its own observations and interpretations of all of the evidence.
Acustar, Inc. v. Staples, 598 So.2d 943, 945 (Ala.Civ.App. 1992). A trial court '... is not bound to accept a physician's assigned impairment rating and is free to make its own determination as to an employee's impairment.'
Fuller v. BAMSI, Inc.., 689 So.2d 128, 131 (Ala.Civ.App. 1996). In fact, the trial court may make a finding of permanent total disability based solely on lay testimony.
Carroll Construction Co., Inc. v. Hutcheson, 347 So.2d 527 (Ala.Civ.App. 1977). In this case, in addition to the testimony of the [employee] and the obvious permanent injury to the [employee's] abdomen that is clearly the result of the crushing blow the [employee] endured, at least three medical providers opined that nerve injury cannot be excluded and that the stenosis in the lumbar spine is likely traumatically induced and a herniated disc that is consistent with the trauma and injury incurred by the [employee].
" 55. Based on the Court's Findings of Fact, the Court concludes that the [employee] is entitled to recover from the [employer], ... or its workers' compensation carrier for workers' compensation benefits under the Laws of the State of Alabama, and specifically concludes that the [employee] has suffered a work-related injury to his chest, abdomen, low back and spine, for which the [employer] and/or its workers' compensation carrier shall be responsible for medical care and treatment.
" 56. This Court further concludes that the [employee] was justified in seeking care and treatment on his own from Dr. John Valente, Dr. Anthony Esposito, and Dr. James G. White, III.
" 57. Finally, the Court concludes that in his current condition, the [employee] is at maximum medical improvement and has been since February 24, 2011,
and is awarded benefits consistent with the Judgment which follow."
Based on the above findings of fact and conclusions of law, the trial court awarded the employee temporary-total-disability benefits from September 1, 2010, through February 24, 2011; accrued permanent-total-disability benefits from February 24, 2011, through April 11, 2013; and future permanent-total-disability benefits beginning April 12, 2013. The trial court also ordered that the employee's right to medical benefits for all reasonable and necessary medical expenses were to remain open and that Dr. White was to be the employee's authorized treating physician for the purpose of providing medical treatment for the employee's work-related injuries. Finally, the trial court awarded attorney fees to the employee's legal counsel and awarded the employee reimbursement for expenses in the amount of $2,349.14.
On May 10, 2013, the employer timely filed a postjudgment motion. Because that motion remained pending for 90 days, it was deemed denied by operation of law. See Rule 59.1, Ala. R. Civ. P. The employer timely filed its notice of appeal.
The employee testified that he was 38 years old at the time of the trial and that he had begun working for the employer in August 2008 as a structural-steel-fabricator fitter. The parties stipulated that, before his June 23, 2010, workplace accident, the employee had been able to perform all the duties of his job with the employer. Those duties required the employee to frequently push, pull, and lift 75 pounds; to operate heavy equipment and cranes moving objects weighing up to 20 tons; to frequently bend and stoop; and to use ...