Werner Co. v. Williams

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 847

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 848

Teresa Williams ("the worker") was employed at Werner Company ("the company"), *Page 849 a manufacturer of ladders, as a materials handler. She sued the company for workers' compensation benefits, alleging that she had been injured at work on November 30, 1998. After a trial, the trial court entered a judgment finding the worker 100% permanently and totally disabled and awarding the worker benefits and a lump-sum attorney fee. The company appeals.

After reporting to the emergency room, the worker was referred to Dr. Charlie Williams. Dr. Williams determined that the worker had strained her shoulder. He prescribed pain medications; he also limited her to two hours of work with her right arm, restricted lifting to no more than 10 pounds, and ordered that she not engage in work involving repetitive motion and that she do no work requiring her to raise her right arm above shoulder-level. At her follow-up appointment on December 30, the worker continued to complain of pain; Dr. Williams's office notes indicate that he diagnosed tendinitis and bursitis of the right shoulder. Dr. Williams injected the worker's shoulder with pain medication, continued her restrictions, and ordered one week of physical therapy.

The worker returned to Dr. Williams on January 6, 1999, with continued complaints of pain. Dr. Williams's office notes indicate that he was puzzled that the worker's pain, which she described as 10 on a scale of 1 to 10, had continued despite her being placed on light duty work and after the pain injection on December 30. He further restricted her work by requiring that she do no work with her right arm. He also referred her to Dr. Willie Stokes, an orthopedic surgeon, for further evaluation.

Dr. Stokes first saw the worker on January 7, 1999. He agreed with Dr. William's assessment of the worker's injury as tendinitis. According to Dr. Stokes's deposition testimony, an injury like the worker's usually develops as a result of some trauma or lifting activity, but the injury is usually resolved within four weeks by simply resting the injured joint. Dr. Stokes explained that tendinitis can induce subacromial bursitis, which is an inflammation of the bursa. He said that he treated the worker with another injection of pain medication in her shoulder, and he then released her to return to work with the restriction that she do no lifting of objects greater than 20 pounds. *Page 850

The worker returned to Dr. Stokes on January 14, 1999, still complaining of severe pain. Dr. Stokes then ordered an MRI of her shoulder, which, he said, was to rule out a possible tear in the rotator cuff. Bobbie Hammonds, the occupational nurse at the company, telephoned Dr. Stokes on January 19, 1999, before the MRI had been performed, to report that the worker, who had been assigned to a light-duty job, continued to complain of pain. Dr. Stokes indicated to Hammonds that the worker either had an underlying problem that had yet to be diagnosed or that she was malingering. He ordered that the worker not return to work until after her MRI was performed.

The worker underwent an MRI on February 6, 1999. According to the report from the radiologist and Dr. Stokes's deposition testimony, the MRI showed no abnormalities in any of the structures of the shoulder. Dr. Stokes concluded, based on his review of the MRI and on the worker's failure to heal from what he determined to be a minor case of tendinitis, that the worker should be discharged from treatment and released to work without restrictions.

The worker, however, continued to complain that she could not work because of her pain. She said in her deposition that she reported to Jerry Lowe, the manager of the company's human resources division, that she was still in pain and that she could not work despite the fact that Dr. Stokes had released her with no restrictions. She said that he told her to see her own physician. The worker's testimony is supported by a document in the record, written by Lowe, indicating that he told the worker that the company's workers' compensation insurance carrier had denied her request for work-related-injury leave and that she would need to get a release from her personal physician to return to work.

The worker then went to see Dr. C. Herbert McCrimmon, an orthopedic surgeon she had seen in the past. Dr. McCrimmon examined the worker on February 15, 1999, February 23, 1999, and March 3, 1999. Dr. McCrimmon's office notes indicate that he was informed that Dr. Stokes had seen the worker and that she was told to check out her medical records and to bring them to her next appointment with Dr. McCrimmon, which she apparently did. After reviewing her MRI, Dr. McCrimmon concluded that the worker may need arthroscopic surgery, so he referred her to his partner, Dr. Duane Tippets, for evaluation and possible surgery.

Dr. Tippets determined that the worker suffered from impingement and recommended an arthroscopic evaluation of her shoulder with possible subacromial decompression. The worker underwent surgery on March 23, 1999. According to Dr. Tippets, the surgery went well, but the worker continued to have pain. He had the worker attempt physical therapy to improve motion and strength.

The worker began physical therapy with Andrea Barnes at David Wilhoite and Associates on April 13, 1999, and reported for a total of six appointments. According to her physical therapy records, the worker communicated to Barnes on April 28, 1999, that she was pain-free and that she wished to discontinue therapy at that time. The records reflect that the worker stated that she could carry a laundry basket of wet clothes, reach overhead to hang clothes to dry, pick up and carry a one-gallon jug of milk, and reach overhead to the top shelf while grocery shopping. When questioned about these comments, the worker testified that she had reported being able to do all those things with her left arm. Barnes *Page 851 discharged the worker from therapy on April 28, 1999.

However, when the worker returned to Dr. Tippets's office for a follow-up appointment on May 11, 1999, the worker reported having increased motion but persistent pain. He also noted that she complained of feeling unstable. Dr. Tippets's office notes reflect that a review of photographs of the worker's surgery revealed a partial detachment of her anterior glenoidale labrum. He suggested in his office notes that the worker's reports of continued pain might require an open-shoulder reconstruction, but noted that he encouraged her to continue with therapy three times per week for another four weeks. Dr. Tippets's office notes do not indicate that the worker informed him that she had been discharged from therapy at her own request. One month later, on June 11, 1999, Dr. Tippets scheduled the worker for a shoulder reconstruction on June 30, 1999.

The operative record of the June 30, 1999, surgery indicates that the worker had "some definite anterior instability but without definite dislocation." In addition, the record states that "the anterior capsule was very attenuated and stretched out." According to the record, once all aspects of the surgery were completed, "this resulted in an exceedingly stable reconstruction." Again, after a few weeks, Dr. Tippets recommended physical therapy.

The worker began physical therapy at the Northeast Alabama Regional Medical Center. According to the records admitted at trial, the worker began therapy on July 19, 1999. She attended only two other appointments — on July 23 and August 5. She missed the other six scheduled appointments and was discharged on August 12, 1999, for failing to attend. The records reflect that she reported having a personal situation that prevented her from attending therapy. Dr. Tippets's office notes reflect that the worker had reported that she had lost her job and her insurance and that she was not getting paid. However, the worker was employed at the company until November 21, 2000, and her health insurance was in effect until November 30, 2000.

Dr. Tippets testified that he assigned the worker permanent restrictions in July 2000; specifically he prohibited lifting items weighing over five pounds and any overhead work with the right arm. When questioned about when the worker had reached maximum medical improvement ("MMI"), he noted that the injury was, at that time, not considered work-related. However, he said the worker, who had had periods of increased rotation and flexion and had also had setbacks, was, in his opinion, "as good as she was going to get" when he saw her on July 7, 2000. He noted that his impression was that she was not going to get better.

Dr. Tippets stated that, based on the worker's report of her injury at work, he felt it was possible that the worker's condition was work-related. He also said that the worker's job would certainly have contributed to her symptoms if the worker had had an existing impingement. He also testified that he did not think the worker was 100% disabled.

In December 2000, after three failed attempts, the worker was awarded Social Security disability benefits. The records disclose that she received disability on the basis of her mild mental retardation, "a frozen right shoulder," and the limitations Dr. Tippets placed on her lifting abilities. Those records contain the report of Dr. Richard Summerlin, a psychologist who performed diagnostic testing on the worker. The document from the Social Security Administration awarding the worker disability benefits indicates that testing revealed her IQ to be 68. The trial court *Page 852 indicated that it had reviewed the records of the Social Security Administration in making its decision.

The worker was also evaluated by Dr. Alan Blotcky, a clinical psychologist, who, after testing the worker, concluded that the worker was mildly mentally retarded with a full-scale IQ of 66. He concluded that the worker could read on a 3.7 grade level, spell on a 2.4 grade level, and perform math on a 2.1 grade level. He also determined that the worker suffered from severe depression, which, he said, would impact her ability to concentrate; to understand, carry out, and remember instructions; to perform complex or varied job-related tasks; and to respond to customary work-related pressures.

Jo Spradling, a vocational rehabilitation counselor, testified concerning the worker's loss of access to the job market. Spradling testified that she had reviewed the worker's medical records from Dr. Tippets and the report of Dr. Blotcky, and had conducted her own testing and had interviewed the worker. She opined that the worker was indeed mildly mentally retarded and noted that her low intellectual capacity, her medical restrictions, and her depression and its effect on her ability to concentrate and carry out job-related tasks would prevent her from finding gainful employment. She concluded that the worker was 100% vocationally disabled.

The trial court is not required by § 25-5-88 to comment on every item of *Page 853 evidence, each word of testimony, and every line of every deposition offered in evidence. As we have previously stated, "[a]lthough § 25-5-88 . . . requires a `statement of the law and facts and conclusions as determined by [the trial] judge,' we are unpersuaded that that Code section compels the detailed findings [the company] would have the trial court make." Bostrom Seating, Inc. v. Adderhold, [Ms. 2000878, Dec. 6, 2002] 852 So.2d 784, 793-74 (Ala.Civ.App. 2002) (quoting §25-5-88). To the extent some of the findings of the trial court may be meager or omissive, we note that a reversal is not required. Instead, we merely conduct the same review as we would of more specific factual findings to determine whether the ultimate finding made by the trial court is supported by substantial evidence. See Cockrum v. Dunlop TireCorp., 808 So.2d 58, 59 (Ala.Civ.App. 2001).

The company argues that the worker failed to present either clear and convincing or substantial evidence of medical causation, that the trial court considered inadmissible hearsay contained in records of the Social Security Administration admitted into evidence, and that the trial court unduly relied upon the fact that the worker was receiving Social Security disability benefits. The company further contends that the trial court erred in permitting a continuance for the worker to properly certify medical records before trial. In addition, the company argues that the trial court erred by failing to reopen the case to allow the company to admit a video-surveillance tape the company failed to admit at trial and in failing to consider evidence indicating that the worker had failed to return to work or even to attempt to perform her job. Finally, the company argues that the trial court erred in ordering the company to pay for all of the worker's past and future medical benefits, in failing to properly calculate the worker's weekly wage, and in failing to calculate the present value of the worker's future payments before awarding a lump-sum attorney fee.

The worker testified that she reported the incident to her immediate supervisor on more than on occasion, beginning on November 30, 1998. As the company points out, the worker did see Lowe, to request to take her perfect-attendance day, only a few days before the first report *Page 854 of injury was filled out on December 28, 1998, and she did not report her injury to him. The worker regularly reported to work during the one-month interval between the date of her injury and the date it was initially reported; she may have worked overtime during that month. Although we understand the company's argument that the worker's conflicting testimony and some of her behavior might cause one to call into question the veracity of her report that she notified her supervisor of her injury, the trial court heard the worker testify and considered the evidence, and it alone is entrusted to resolve the conflicts in that evidence. Hooker Constr.,Inc. v. Walker, 825 So.2d 838, 842 (Ala.Civ.App. 2001). Although disputed, the evidence at trial supports the trial court's apparent conclusion that the worker reported her injury to her immediate supervisor in a timely manner.

Our supreme court "has long concluded that if the job caused the injury then the injury was an `accident' within the intent of the [Workers' Compensation] Act." Ex parte Harris, 590 So.2d 285, 286 (Ala. 1991). The company is correct in stating that a worker who has suffered a nonaccidental injury must prove that she was exposed to a risk materially in excess of that risk to which persons are exposed every day. Ex parteTrinity Indus., 680 So.2d at 269. However, nothing in the record supports a conclusion that the worker's injury was caused by something other than an accident. The worker was either pushing or pulling or manipulating in some way a heavy barrel of parts that she, as a materials handler, was required to move. A worker "is not required, under the Act, to prove the existence of some violent and unusual event that resulted in his or her injury — if the job caused the injury, then the injury is an accident within the intent of the Act." Ex parte Harris, 590 So.2d at 286. We conclude, as did the *Page 855 trial court, that the worker was injured in a traditional accident.

We also conclude that the evidence at trial does not support the company's argument that the worker's injury was the result of gradual deterioration or cumulative stress. Medical testimony indicated that the injury like the one suffered by the worker could be caused by a fall onto the affected shoulder or by trauma to the shoulder caused by lifting, pushing, or pulling heavy items. Therefore, contrary to the company's argument, the worker was not required to prove causation by clear and convincing evidence.

As we have previously stated, this court does not reweigh the evidence before the trial court when reviewing its judgment. Bostrom Seating, 852 So.2d at 795. Although we might have resolved the conflicting evidence otherwise, the trial court observed the worker during her testimony and was able to assess her demeanor and determine her credibility — two important factors this court is unable to assess. Hooker Constr., Inc.v. Walker, 825 So.2d 838, 842 (Ala.Civ.App. 2001). We have consistently held that a trial court may find that a worker has proven medical causation even in the absence of medical testimony to the effect that the worker's injuries resulted from a work-related accident. See HookerConstr., Inc. v. Walker, 825 So.2d 838, 843 (Ala.Civ.App. 2001) (citingWal-Mart Stores, Inc. v. Kennedy, *Page 856 799 So.2d 188, 195 (Ala.Civ.App. 2001)) (stating that the trial court can consider lay, as well as expert, testimony on the issue of medical causation); Waffle House, Inc. v.Howard, 794 So.2d 1123, 1128-29 (Ala.Civ.App. 2000) (same). Accordingly, because a favorable view of the testimony and evidence at trial supports the determination that the worker's physical restrictions, her pain, and her limited intellectual ability together serve to make her 100% permanently and totally disabled, we affirm the trial court's determination of the worker's disability.

The evidence shows that the company sent the worker home on February 22, 1999, with instructions to return to work only upon a "full release" by her personal physician. Dr. Tippets's medical records indicate that, while he had released the worker on some occasions to do light-duty work with only her left arm, he did not give her a "full release." In fact, his records reflect that at one point he had concerns that the worker may never be able to perform with her right arm the work she had performed with that arm before the injury. In addition, the company did not present evidence indicating that it offered light-duty work within the worker's restrictions or any reasonable accommodations to the worker at any time after February 22, 1999. Accordingly, we find no error.

"(1) where the [company] has neglected or refused to provide the necessary medical care, (2) where notice of and request for alternative care would be futile, and (3) where other circumstances *Page 858 exist which justify the selection of alternative care by the [worker]."

In Walley, this court was faced with a situation similar to that presented in this case. The company in Walley had informed the worker that it would not authorize certain treatment because it contended that the treatment was not related to the work-related injury. Id. The trial court determined that the company was liable for the expenses of the questioned treatment. Id. On appeal, this court affirmed the judgment ordering the company to pay those expenses, noting that the company had refused to authorize treatment based upon its position that the treatment was unrelated to the work-related injury. Id.

Likewise, this court has stated that a worker "may avail himself of medical services if the [company] has expressly or impliedly conveyed to the [worker] the impression that the [worker] is authorized to go to a physician of the [worker's] choosing . . . ." Blue Bell, Inc. v. Nichols,479 So.2d 1264, 1267 (Ala.Civ.App. 1985); see also Sunnyland Foods, Inc.v. Catrett, 395 So.2d 1005, 1008 (Ala.Civ.App. 1980) (affirming a judgment requiring the company to pay medical expenses after authorizing the worker to see a physician of his choosing). In Catrett, the trial court determined that the company's representative had informed the worker that he could see any physician he wished to consult for treatment of his work-related injury. Catrett, 395 So.2d at 1007. Because the company had "effectively transferred its authority to choose the doctor to [the worker]," the company could not complain that the medical expenses incurred were unauthorized. Id. at 1008.

We conclude that the evidence in this case, like that in Walley andCatrett, supports the trial court's judgment requiring the company to pay the worker's medical expenses. We find it rather disingenuous for the company to argue that the worker should be punished because she failed to request authorization for medical treatment of an injury the company had already determined was not work-related. Even more striking is that the company is now complaining after it informed the worker that she was to see her personal physician for further treatment. The trial court has determined that the worker's injury is work-related and is compensable. The company cannot now argue that the cost of the worker's medical care should not be borne by it on the basis that the worker failed to seek authorization or failed to use a company-approved physician. The trial court's judgment ordering payment of the worker's medical expenses is affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

YATES, P.J., and PITTMAN, J., concur.

MURDOCK, J., concurs in part and concurs in the result in part.

THOMPSON, J., concurs in the result only.

I concur in all respects with the main opinion, with the exception of the last two sentences of that section of the main opinion titled "Whether the Worker's Injury Was to a Scheduled Member." 871 So.2d at 855. I agree with the main opinion that "an injury to the shoulder is not an injury to the arm," and therefore concur in the result reached in that section. I would not base that result, as does the main opinion, on the additional point that "the worker sought, and was awarded, benefits for permanent total disability." 871 So.2d at 855 (emphasis added). Even if the trial court's award had been for permanent partial disability, the trial court would not necessarily have been limited to awarding the compensation due under § 25-5-57(3)(a) for the loss of an arm. Moreover, it is the extent of disability, and whether that disability extends beyond the scheduled member, that defines whether a disability is total or partial, not vice versa. *Page 860