Appeal
from Tuscaloosa Circuit Court (CV-15-901273)
EDWARDS, JUDGE.
Chaka
Beville was employed as a correctional officer at the
Tuscaloosa County jail. On December 23, 2014, Beville slipped
and fell, injuring her left wrist. After conservative
treatments failed, Beville underwent surgery and physical
therapy to address her injury. In November 2015, Beville sued
Tuscaloosa County ("the county") in the Tuscaloosa
Circuit Court ("the trial court"), seeking
workers' compensation benefits.[1] After a trial held on June
28, 2017, the trial court entered a judgment[2] determining that
Beville had "suffered a 60% injury to her left upper
extremity" and awarding Beville $29, 304 in
benefits.[3] The county appeals.
Our
review of workers' compensation judgments is well
settled. "In reviewing pure findings of fact, the
finding of the circuit court shall not be reversed if that
finding is supported by substantial evidence." Ala. Code
1975, § 25-5-81(e)(2). Our supreme court has explained
that a trial court's finding of fact is supported by
substantial evidence if it is "supported by
'evidence of such weight and quality that fair-minded
persons in the exercise of impartial judgment can reasonably
infer the existence of the fact sought to be
proved.'" Ex parte Trinity Indus., Inc.,
680 So.2d 262');">680 So.2d 262, 269 (Ala. 1996) (quoting West v. Founders
Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.
1989)); see also Ala. Code 1975, § 12-21-12(d).
In completing our review, this court "will view the
facts in the light most favorable to the findings of the
trial court." Whitsett v. BAMSI, Inc., 652
So.2d 287, 290 (Ala. Civ. App. 1994), overruled on other
grounds, Ex parte Trinity Indus., 680 So.2d at 269.
We review legal issues without a presumption of correctness.
See Ala. Code 1975, § 25-5-81(e)(1).
The
testimony at trial indicated that Beville continued to work
after her December 2013 accident and that she did not take
the nonsteroidal, anti-inflammatory medication prescribed to
her by Dr. Phillip Bobo, who initially treated her after her
accident. However, Beville also suffered from knee, back, and
neck pain after her accident; although the trial court
determined that any injury to Beville's left knee, back,
and neck were not compensable, Beville testified, and her
medical records reveal, that she was prescribed several
medications between March 2014 and the date of trial by
physicians other than Dr. Bobo, including a muscle relaxer, a
synthetic opioid pain reliever, and non-opioid pain
relievers. Beville's medical records also reveal that she
continued to report wrist pain in the months following the
accident and that, after cortisone injections failed to
provide lasting relief, Beville underwent surgery on her
wrist. After the surgery, she attended physical therapy, at
which she continued to complain of varying degrees of pain
and of burning and numbness with the use of her wrist
throughout therapy. The physical-therapy notes indicate that,
although therapy was decreasing her pain in the short term,
she continued to have pain after certain treatments
"wore off."
In
October 2014, after she reached maximum medical improvement
("MMI"), Beville underwent a functional-capacities
evaluation ("FCE"). The results of that FCE
indicated that Beville could not perform the duties of her
employment as a correctional officer because of deficits in
her ability to lift, carry, and push. According to the FCE
report, "the primary limiting factors during [the FCE]
were complaints of wrist pain." The FCE determined that
Beville could perform within the "light plus"
category, which requires "exerting up to 30 pounds of
force occasionally and/or up to 10 pounds of force
frequently." The FCE reflected that Beville was able to
lift 40 pounds from floor to waist but that she stopped that
task complaining of wrist pain and that she was able to lift
30 pounds from waist to overhead but, again, stopped the task
complaining of pain in her wrist. The FCE did not
specifically state the restrictions placed on Beville.
Dr.
John P. Buckley, Beville's authorized treating physician,
issued a statement of physical-impairment rating. He stated
that he had determined that Beville had suffered a 4%
impairment to her left upper extremity. He explained that
Beville had "decreased joint mobility and increased
stiffness" in her wrist and limited grip strength in her
left hand. However, Dr. Buckley stated that he had not
assigned an impairment rating for the loss of strength in
Beville's left hand because, he said, he expected her
loss of strength to improve over time.
The
parties entered into several stipulations at the beginning of
the trial. One of those stipulations was that "Dr.
Buckley assigned a 4% impairment rating to [Beville's]
wrist." The parties also stipulated that "[a] 4%
impairment rating to [Beville's] wrist equates to a
monetary value of $1, 953.60."
Citing,
among other authorities, Fab Arc Steel Supply, Inc. v.
Dodd, 168 So.3d 1244, 1257 (Ala. Civ. App. 2015), and
Vann Express, Inc. v. Phillips, 539 So.2d 296, 298
(Ala. Civ. App. 1988), the county argues that the trial court
did not honor the parties' joint stipulations or give
those stipulations a "reasonable construction."
According to the county, the stipulations mentioned above
indicate that the parties agreed that Dr. Buckley's 4%
physical-impairment rating was, in fact, the
physical-impairment rating applicable to Beville. However,
Beville contends that the stipulations indicate the
parties' agreement (1) that Dr. Buckley had assigned
Beville a 4% physical-impairment rating and (2) that using
that 4% rating equated to compensation of $1, 953.60. That
is, she contends that the stipulations were merely limited to
stating Dr. Buckley's assigned physical-impairment rating
and the amount of compensation that would correspond to that
physical-impairment rating and that they were not intended to
foreclose the trial court from considering, based on the
evidence presented, Beville's actual physical-impairment
rating. We agree. See Dodd, 168 So.3d at 1257
(explaining that a stipulation that a particular physician
had placed the employee at MMI on a certain date did not
stipulate the date of MMI but instead "specifically left
open for determination by the trial court the assignment of
any disability, which would include the date of MMI, as a
result of the employee's disputed injuries").
Furthermore,
at the close of the trial, the trial court specifically
requested posttrial briefs addressing, among other things,
whether it could assign a different physical-impairment
rating than that assigned by Dr. Buckley. Although the county
argued in its posttrial brief that the evidence supported Dr.
Buckley's assigned 4% physical-impairment rating, the
county conceded that the trial court was free to assign an
impairment rating based upon the evidence and its own
observations; at no time did the county indicate that the
issue of Beville's physical-impairment rating was not
open for the trial court's determination. Thus, because
the county did not apprise the trial court that the
stipulations foreclosed the trial court's determination
of Beville's physical-impairment rating and instead
indicated in its posttrial brief that the trial court was
free to assign an impairment rating based upon the evidence
and its own observations, we need not further consider the
county's argument that the trial court was bound by the
stipulations to assign Beville a 4% physical-impairment
rating. See G.A. West & Co. v. McGhee, 58 So.3d
167, 177 (Ala. Civ. App. 2010) (quoting State Farm Mut.
Auto. Ins. Co. v. Motley, 909 So.2d 806, 821 (Ala.
2005)) (explaining that this court "'cannot consider
arguments advanced for the purpose of reversing the judgment
of a trial court when those arguments were never presented to
the trial court for consideration or were raised for the
first time on appeal'").
The
county next argues that the trial court's determination
that Beville suffered a 60% impairment to her arm is not
supported by the evidence presented at trial. The county
concedes that "the trial court must consider all the
evidence, including its own observations, and it must
interpret the evidence to its own best judgment."
Compass Bank v. Glidewell, 685 So.2d 739, 741 (Ala.
Civ. App. 1996). However, the county contends that the record
lacks substantial evidence from which the trial court could
have concluded that Beville suffered a 60% loss of use of her
left arm.
Beville
relies on the following principle of law regarding the effect
of expert testimony on a trial court's conclusions in
workers' compensation cases:
"It is well settled that the trial court has the duty to
determine the extent of disability and is not bound by expert
testimony in making that determination; yet, in making its
determination, the trial court must consider all the
evidence, including its own observations, and it must
interpret the evidence to its own best judgment. Wolfe v.
Dunlop Tire Corp., 660 So.2d 1345 (Ala. Civ. App. 1995).
Specifically, 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. Checker's Drive-In Restaurant v.
Brock, 603 So.2d 1066 (Ala. Civ. App. 1992)."
Glidewell, 685 So.2d at 741. We further explained in
Glidewell that no language in the Workers'
...