Mobile Airport Authority v. Robert Etheredge

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REL: 04/20/2012 Notice: This o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e Courts, 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2011-2012 2100307 Mobile A i r p o r t A u t h o r i t y v. Robert Etheredge Appeal from M o b i l e C i r c u i t Court (CV-09-901552) PITTMAN, The from Judge. Mobile a judgment Airport awarding Authority Robert ("the employer") Etheredge appeals ("the employee") p e r m a n e n t - t o t a l - d i s a b i l i t y b e n e f i t s under t h eAlabama W o r k e r s ' 2100307 Compensation Act, § Act"), for injuries 25-5-1 the airfield s e q . , A l a . Code to h i s foot Facts At et time and lower and P r o c e d u r a l of trial, the technician at the Mobile 1975 back. We grass, included employee, Regional r e p a i r i n g fence moving lines, a 57-year-old A i r p o r t , had heavy equipment, and e n s u r i n g was i n j u r e d a t w o r k when a 3 0 0 - p o u n d m a n h o l e c o v e r leading fracturing the to the b i g toe. cutting that the l i g h t s runway were o p e r a t i o n a l . foot, been I n 2006, h i s the left affirm. History w o r k i n g f o r t h e e m p l o y e r f o r m o r e t h a n 20 y e a r s . responsibilities ("the on On M a r c h 3 1 , 2 0 0 6 , t h e e m p l o y e e first metatarsal, I t i s undisputed fell the that on h i s long the bone employee promptly reported the a c c i d e n t ; that the employer p a i d f o r the employee's medical 2 periods treatment; totaling 13 and t h a t , w i t h months during r e t u r n e d t o work, t h e employer p a i d benefits The Cockrell, f r o m March 31, 2006, employee an was orthopedic surgeon, employee's f o o t and l a t e r p r o v i d e d boot. The f o o t f r a c t u r e h e a l e d 2 which the of employee temporary-total-disability through initially the exception June treated who put 2009. by Dr. Michael a cast on the employee w i t h a without complication, the walking and the 2100307 employee June returned 23, 2006, complaining Dr. as ("RSD"), or referred him specialist, nerve partner, suffering complex to blocks October Dr. without returned William from reflex 15, 2006, t o Dr. 2006. Park, Over 1 of h i s foot. diagnosed syndrome Yearwood, the a dystrophy and pain-management three narcotic pain the ("CRPS"), course administered until Cockrell, sympathetic pain Thomas and p r e s c r i b e d Dr. Yearwood intraspinal undergoing direction Dr. Dr. Yearwood neurostimulator after May of the next sympathetic relievers, which p r o v i d e d o n l y temporary r e l i e f t o t h e employee. 2006, electrode he regional in July months, treatments time from o f p a i n , s w e l l i n g , and d i s c o l o r a t i o n employee The a t which Cockrell's several t o work b r i e f l y surgically neurostimulator a i n the employee's dualback. r e l i e v e d most o f t h e e m p l o y e e ' s p a i n , and, a month-long of Dr. Park, restrictions implanted In work-hardening program at the t h e e m p l o y e e was a b l e t o r e t u r n t o w o r k i n January 2007. Dr. Park's d e p o s i t i o n testimony i n d i c a t e d t h a t , although RSD/CRPS i s n o t c o m p l e t e l y u n d e r s t o o d , i t i s essentially a post-traumatic c o n d i t i o n i n which the autonomic nervous system m a g n i f i e s t h e p a i n beyond what w o u l d n o r m a l l y be e x p e c t e d f o r t h e t y p e o f i n j u r y i n v o l v e d . T r e a t m e n t c o n s i s t s o f an a t t e m p t to block the sympathetic chain i n the s p i n a l cord t o prevent the p a i n s i g n a l s from r e a c h i n g the b r a i n . 1 3 2100307 The half employee's j o b a mile testified every that experienced left foot soon pain and day duties and r e q u i r e d him to operate after he walk with a tractor. had returned i n his foot again to a to w a l k at and to begun to The limp. lower-back pain that employee, tractor the employee pain at and of said immediate work, office mowing he note had grass that o f A u g u s t 6, the because dismissal, worked on 2007, had take through had favor his who had disease, also w h i l e he was airfield. he to he became p r o g r e s s i v e l y w o r s e , e s p e c i a l l y w i t h the bouncing t h a t o c c u r r e d a employee work had p r e v i o u s l y been d i a g n o s e d w i t h d e g e n e r a t i v e - d i s k experienced The least the been 2 Nevertheless, forbidden, narcotic pain pain. riding Dr. upon relievers Yearwood's states: " [ T ] h e b u m p i n g and b o u n c i n g a s s o c i a t e d w i t h h e a v y e q u i p m e n t does not h e l p [ t h e e m p l o y e e ' s ] b a c k any, but he is still coping. Exam s h o w s bilateral paraspinous muscle s p a s t i c i t y and trigger points throughout the lumbar paraspinous musculature. He does have t e n d e r lumbar f a c e t s i n the L3-4, L4-5, and L5-S1 d i s t r i b u t i o n s . He a l s o d e m o n s t r a t e s some The employee e x p l a i n e d t h a t 20 y e a r s earlier, while w o r k i n g f o r a d i f f e r e n t e m p l o y e r , he h a d f a l l e n a n d h u r t h i s back and that he had previously been diagnosed with degenerative-disk disease. 2 4 2100307 decreased s e n s a t i o n and L5-S1 d i s t r i b u t i o n . " According fence to the on t h e a i r f i e l d riding ran over old fence the post jolt employee, that was had been had been removed. the tractor searing a he in his [ 3 ] left mowing g r a s s near i n December 2007 when t h e t r a c t o r he a hole from experience dysesthesias pain left unfilled accident that, he had said, was after The employee t e s t i f i e d caused an that him felt a like to the e l e c t r o d e s of the n e u r o s t i m u l a t o r had been " r i p p e d o u t " of h i s spine. On January whose o f f i c e 7, 2 0 0 8 , t h e e m p l o y e e c o n s u l t e d D r . note Yearwood, f o r t h a t day s t a t e s : "[R]ecently while [ t h e e m p l o y e e ] was riding a t r a c t o r a t w o r k h e h i t a v e r y l a r g e bump w h i c h caused the s t i m u l a t o r leads to migrate out of the e p i d u r a l space p r o h i b i t i n g h i s s t i m u l a t o r [ f r o m ] p r o v i d [ i n g ] any p a i n c o n t r o l w h a t s o e v e r . He i s being admitted to undergo lead revision and repositioning i n order to sustain optimal pain control." On January procedure reposition 10, to the 2008, reimplant the the electrodes. employee underwent neurostimulator The employee a device never and to returned to Dysesthesia i s a h y p e r s e n s i t i v i t y to touch, a b n o r m a l i t i e s i n the c e n t r a l nervous system. 3 5 surgical caused by 2100307 work a f t e r the site pain that surgery. of the i n c i s i o n , i n h i s foot. sessions those He c o n t i n u e d in April sessions [in h i s lower of tolerance He 2008, more to general pain, of the t h e s t i m u l a t o r , and t o a l t e r t h e to a n e u r o l o g i s t , Dr. Terry no diagnosis was relief. significant but nothing provided the Dr. on June Yearwood Millette, 10, spinal referred who 2008. abnormalities. "[a]typical That Dr. discomfort thoracolumbar The to consider "mechanical the performed study Millette's with unusual h i s t o r y ; cannot r u l e out m e c h a n i c a l lumbar d i f f i c u l t i e s . " r e c o m m e n d a t i o n was lack the n e u r o l o g i c a l source employee revealed pain Dr. with study "increased that activities." employee nerve-conduction and work-hardening h i s l e g s , ] ... a n d a employee's p r e s c r i p t i o n medications, a back, t o Dr. Yearwood conditioning to adjust lasting 10 him to experience Yearwood attempted t o d i s c o v e r employee's in a n d he r e p o r t e d radiating into of pain at i n h i s lower participated had caused back, pain to complain assessment His of the spine." employee underwent a f u n c t i o n a l - c a p a c i t i e s e v a l u a t i o n ( " F C E " ) on S e p t e m b e r 3, 2 0 0 8 . the demand" "light physical The F C E p l a c e d category. 6 the employee i n David Dimmick, the 2100307 exercise the p h y s i o l o g i s t who employee had gross had put conducted f o r t h good e f f o r t symptom m a g n i f i c a t i o n scored positive magnification back pain on but [after] light FCE, and had concluded that of Waddell five o f w h i c h was palpation and "an the symptom- increase light unaware d u r i n g the On in of pinching," demonstrated and L5, disk." with Dr. a by a c o n d i t i o n of w h i c h D i m m i c k had 2008, Dr. the test low a the been FCE. N o v e m b e r 7, diskography no employee r e a c t i o n t h a t , D i m m i c k a c k n o w l e d g e d , c o u l d be e x p l a i n e d employee's d y s e s t h e s i a , that demonstrated testified two c a t e g o r i e s , one the Yearwood performed a employee's "rather spine. That diagnostic s e v e r e d i s k derangements at L3, developing Yearwood lumbar provocative degenerative pattern in the L4, L2 concluded: "The work-related t r a c t o r a c c i d e n t has accelerated the degenerative disk disease and pain in [the employee], suggesting an end-plate compromise at m o r e t h a n one l e v e l . The a x i a l l o a d i n g needed to dislodge the implanted neurostimulator system i s seen to have been s u f f i c i e n t to c r e a t e v e r t e b r a l c o l u m n p a t h o l o g y o f a t r a u m a t i c n a t u r e as w e l l , and e x p l a i n s q u i t e a l o t of the [ e m p l o y e e ' s ] symptoms, which heretofore seemed to be somewhat inconsistent." In deposition employee's testimony, altered gait Dr. Yearwood concluded that resulted from 7 the that 2006 the foot 2100307 i n j u r y and t h e t r a u m a t i c j o l t combined to aggravate degenerative-disk At the of M i l l e n i u m carrier, 28, 2009. the employee's medical injury on January degenerative-disk process and "wear on Managers the workers' surgeon, e v a l u a t i o n of the employee that e v a l u a t i o n and maximum m e d i c a l 2009. He tear" over on of determined that the improvement opined a review that f o r the foot the employee's d i s e a s e had been caused by the n a t u r a l and the employer's r e c o r d s , Dr. Revels 28, ("MRM"), an o r t h o p e d i c D r . Tim R e v e l s , Based employee had reached Risk of p e r f o r m e d an i n d e p e n d e n t m e d i c a l January had or a c c e l e r a t e the employee's p r e e x i s t i n g administrator compensation accident disease. request third-party o f t h e 2007 t r a c t o r the years. He aging stated that n e i t h e r the i m p l a n t a t i o n of the n e u r o s t i m u l a t o r device nor the dislodging of the aggravated, o r b e e n c o r r e l a t e d i n a n y way degenerative-disk however, that stimulator disease. the t r a c t o r leads He jolt agreed d i s k derangements only 8 caused, the employee's with Dr. Yearwood, have aggravated condition. t h a t he w o u l d r e c o m m e n d f u s i o n s u r g e r y employee's have with i n 2007 c o u l d the employee's p r e e x i s t i n g d e g e n e r a t i v e stated could as a l a s t Dr. Revels to c o r r e c t the resort. 2100307 On August seeking foot. 12, 2009, benefits for a the employee September filed 2007 injury complaint to h i s On M a r c h 1 9 , 2 0 1 0 , t h e e m p l o y e e a m e n d e d h i s a s s e r t i n g t h a t the f o o t i n j u r y had occurred after a which, the employee alleged, he h a d s u f f e r e d part 2008" his preexisting disease had aggravated The employer acknowledging injury that answered of foot i n j u r y to disabled. the employee an i n j u r y degenerative-disk the e a r l i e r and t o t a l l y the 2006, o f 2007 o r t h e e a r l y p a r t and t h a t had combined w i t h render him permanently complaint, on M a r c h 3 1 , to h i s back " i n the l a t t e r that left had amended suffered complaint, a compensable t o h i s f o o t on M a r c h 3 1 , 2 0 0 6 , b u t d e n y i n g that i t had had any n o t i c e o f t h e second a l l e g e d o c c u r r e n c e , a b a c k i n j u r y "in the l a t t e r part o f 2007 o r t h e e a r l y p a r t of 2008," a s s e r t i n g the bar of the s t a t u t e of l i m i t a t i o n s . 22, 2010, t h e t r i a l the employee March 31, injured had 2006, foot, court suffered and he that, had entered initial as a his lower-back determined that the employee an altered pain. had 9 injury consequence developed to September a judgment determining an contributed On favoring gait The sustained that to h i s foot of that court a and second on the had further work- 2100307 related which injury, the one to h i s employer court determined had back, i n December received notice. t h a t the consequence of the lower Finally, employee's a l t e r e d 2006 f o o t i n j u r y and the 2007, the gait trial t h a t was traumatic j o l t t h e 2 0 0 7 t r a c t o r a c c i d e n t c o m b i n e d t o c a u s e an a g g r a v a t i o n acceleration of the employee's and totally the p r e e x i s t i n g lower disabled. total-disability those back, after trial b e n e f i t s under determinations. denied, The which The r e n d e r i n g him court the Act Standard Our review pertinent p a r t : "In other legal be is of governed by the reviewing i s s u e s , r e v i e w by a presumption § 25-5-81(e)(1). See 2d fact, if 262, the that Code 268 finding 1975, § the of a l s o Ex of the to t h i s which of was court. parte "In by 25-5-81(e)(2). 10 Trinity proof ... Indus., shall substantial not shall Inc., 1975, 680 f i n d i n g s of be reversed evidence." Substantial in and A l a . Code reviewing pure court states of C i v i l Appeals correctness." circuit i s supported Act, standard the Court ( A l a . 1996). finding with Review without So. accordance a timely appeal in permanent- employer's postjudgment motion i t filed of permanently awarded in a and degenerative-disk disease thereby of evidence Ala. is 2100307 " ' e v i d e n c e o f s u c h w e i g h t and q u a l i t y that fair-minded i n the e x e r c i s e of i m p a r t i a l judgment can existence Indus., of the 680 So. A s s u r a n c e Co. citing § f a c t s o u g h t t o be 2d at 2 69 of F l o r i d a , 12-21-12(d), proved.'" (quoting 547 Ala. So. 2d Code reasonably West persons infer Ex p a r t e v. 87 0 , 871 the Trinity Founders Life ( A l a . 1 98 9 ) , and appeal: (1) 1975). Discussion The employer whether the back-injury limitations; respect presents to (2) the 2007 t r a c t o r a c c i d e n t and (3) stress whether disorder convincing course clear of and claim whether whether the three the are back had injury was only I. Statute of 25-5-80, A l a . Code the statute findings with December substantial evidence; a of cumulative-physicalproof arose out i f so, by clear o f and in whether and the such adduced. Limitations 1975, provides, in pertinent part: " [ A ] l l claims f o r compensation under t h i s article s h a l l be forever barred unless w i t h i n two years 11 of the e m p l o y e e ' s employment and, e v i d e n c e was by notice upon disorder on court's s u p p o r t e d by compensable convincing Section barred trial employer evidence t h a t the the is issues 2100307 a f t e r t h e a c c i d e n t t h e p a r t i e s s h a l l have agreed upon t h e c o m p e n s a t i o n p a y a b l e under t h i s a r t i c l e o r u n l e s s w i t h i n two y e a r s a f t e r t h e a c c i d e n t one o f the p a r t i e s s h a l l have f i l e d a v e r i f i e d c o m p l a i n t as provided i n S e c t i o n 25-5-88. ... W h e r e , h o w e v e r , payments of compensation, as d i s t i n g u i s h e d from medical o r v o c a t i o n a l p a y m e n t s , h a v e b e e n made i n any c a s e , t h e p e r i o d o f l i m i t a t i o n s h a l l n o t b e g i n t o r u n u n t i l t h e time o f making t h e l a s t payment. . . . " The employer contends that t h e employee's back-injury claim i sbarred by the s t a t u t o r y l i m i t a t i o n s p e r i o d s e tout i n § 25-5-80 b e c a u s e , back injury accident after that was that i tsays, t h e amended c o m p l a i n t resulted filed from on M a r c h accident. t h e December 19, 2 0 1 0 , more The e m p l o y e r argues 2007 than that does n o t r e l a t e back t o t h e time o f t h e f i l i n g alleging a tractor two years t h e amendment of the original complaint b e c a u s e t h e amendment a l l e g e s an e n t i r e l y d i f f e r e n t kind injury of complaint. 586, from Citing 587-88, the Leslie the of limitation made o r l i a b i l i t y for that "[p]ayment i n Steel 143 So. 2 d 4 4 2 , 4 4 3 ( 1 9 6 2 ) , that maintains alleged v. R e p u b l i c proposition statute injury Corp. of compensation f o r any i n j u r y does unless t h e employee's disability foot injury 12 benefits f o r the not extend payment i s the employer through and f o r t h e initial 273 A l a . as s t a n d i n g acknowledged f o r that i n j u r y , " i t paid the June 2009 neurostimulator 2100307 complications arising therefrom, n o t f o rt h e employee's back injury. The the trial court determined that t h e d i s k derangements i n employee's lumbar spine r e s u l t e d from a combination o f t h e employee's a l t e r e d g a i t that had resulted from t h e employee's f a v o r i n g t h e f o o t t h a t h a d b e e n i n j u r e d i n 2006 a n d t h e t r a u m a of a tractor complaint seeking implication, from'" that 2d jolt i n 2007. The employee compensation f o r "'every injury." f o r the foot natural See Ex p a r t e 1 0 8 0 , 1084 ( A l a . 1999) ( q u o t i n g Larson, Larson's Workers' filed a timely injury that consequence and, by flow[ed] P i k e C n t y . Comm'n, 740 S o . 1 Arthur Compensation Larson Law § & L e x K. 13.00 (1998)) ("When d e t e r m i n i n g w h e t h e r a s u c c e s s i v e i n j u r y i s c o m p e n s a b l e , the to general have rule '[w]hen t h e p r i m a r y out of and i n t h e course injury i s shown o f employment, every n a t u r a l consequence t h a t flows from t h e i n j u r y l i k e w i s e arises out of of arisen i s that t h e employment, unless i t i s the result an independent i n t e r v e n i n g cause a t t r i b u t a b l e t o [the] c l a i m a n t ' s own intentional Servs., conduct.'"). See a l s o Sistrunk I n c . , 961 S o . 2 d 166 ( A l a . C i v . A p p . 2 0 0 7 ) v. Sikorsky (reversing and r e m a n d i n g f o r a d e t e r m i n a t i o n w h e t h e r l e f t - s h o u l d e r 13 injury 2100307 was a d i r e c t r e s u l t of employee's left arm f o r h i s r i g h t - s h o u l d e r Kent, 828 injury So. to sustained right during trial had evidence, testimony 29 employee (concluding that left which injury been for injury to shoulder, therapy a natural court's had employee's and d i r e c t r e s u l t o f i n j u r y t o finding to specifically the o f Dr. Yearwood. So. that the 3d 210 altered gait, notes Compare W a l - M a r t App. sufficient w h i c h had employee's resulted of altered the disk s u p p o r t e d by s u b s t a n t i a l office (Ala. Civ. d i d not present the development i n h i s l u m b a r s p i n e was caused or c o n t r i b u t e d in v. 2002) contributed derangements her L a n d s t a r Ranger ( A l a . C i v . App. physical was injuries); his shoulder). The Orr, 322 employee's shoulder, right gait 2d overcompensating with and deposition Stores, 2009) I n c . v. (holding that evidence i n d i c a t i n g that f r o m a knee i n j u r y , had to the development of avascular necrosis her h i p ) . The employee d i d not t i m e l y assert a claim specifically s e e k i n g c o m p e n s a t i o n f o r a b a c k i n j u r y r e s u l t i n g f r o m t h e 2007 tractor accident. N e v e r t h e l e s s , b e c a u s e t h e 2006 f o o t was a c o n t r i b u t i n g cause of the back was compensable as a c o n s e q u e n c e 14 i n j u r y , the back of the foot injury. injury injury 2100307 "It i s not n e c e s s a r y t h a t the employment-related i n j u r y be t h e s o l e c a u s e , o r t h e d o m i n a n t c a u s e , o f t h e [ d i s a b i l i t y ] , so l o n g as i t was a c o n t r i b u t i n g c a u s e . See Ex p a r t e V a l d e z , 636 So. 2d 401 (Ala. 1994). If the employee suffers from a latent p r e e x i s t i n g c o n d i t i o n that i n e v i t a b l y w i l l produce i n j u r y or d e a t h , but t h e e m p l o y m e n t a c t s on the p r e e x i s t i n g c o n d i t i o n to h a s t e n the appearance of symptoms or a c c e l e r a t e i t s i n j u r i o u s c o n s e q u e n c e s , t h e e m p l o y m e n t w i l l be c o n s i d e r e d t h e m e d i c a l cause o f t h e r e s u l t i n g i n j u r y . See, e.g., T a y l o r v. M o b i l e P u l l e y & M a c h . W o r k s , I n c . , 714 So. 2d 300 (Ala. C i v . App. 1997)." Associated Grocers 1102, (Ala. Civ. 1110 Dr. of Yearwood itself rate ... of employee's 2007 Mach. lower Works, 714 trial "accelerated disorder disabled, that Inc. v. Goodwin, 965 not by that, "[h]ad deposition have c o n t r i b u t e d back change rendered be the the disk would have appeared 2d court's or would to the that accident. So. See 300, 2d Taylor 301 the a employee v. (Ala. that same." It latent in later Mobile Civ. employee's the is the absent Pulley & App. 1997 ) hip injury schizoaffective permanently psychiatric 15 extent much [the abnormality derangements f i n d i n g that triggered" notwithstanding So. 2007). the t r a c t o r i n c i d e n t , the g a i t however, tractor (upholding had App. degenerative immaterial, the may South, testified e m p l o y e e ] n e v e r had by the testimony and totally that the 2100307 schizoaffective if [the disorder "would have s u r f a c e d employee] had not s u f f e r e d eventually the on-the-job We c o n c l u d e t h a t t h e e m p l o y e e ' s b a c k - i n j u r y barred by t h e s t a t u t e even injury"). c l a i m was n o t of limitations. Notice In responding to discovery, t h e employee i n i t i a l l y that the tractor accident had occurred 2007 and Faggard, on that he of that vacation evidence had because, a t t h e time. indicating i n September o r October not notified accident that h i s supervisor, he s a i d , At trial, December the tractor 2007. Faggard had been t h e employer The e m p l o y e e t e s t i f i e d been m i s t a k e n about t h e date o f t h e t r a c t o r thought Paul presented F a g g a r d h a d n o t been on v a c a t i o n i n September o r O c t o b e r 2007. he stated accident The e m p l o y e e accident had a c t u a l l y claimed t h a t he h a d t o have and that occurred i n telephoned the o f f i c e o f MRM, t h e t h i r d - p a r t y a d m i n i s t r a t o r o f t h e e m p l o y e r ' s workers' compensation of t h e t r a c t o r a c c i d e n t According insurer 2007 carrier, tractor "tack that woman on" any i n j u r i e s accident the details t o a woman who a n s w e r e d t h e t e l e p h o n e . t o t h e employee, would and t o have g i v e n t o t h e March 16 had stated caused 2006 that the by t h e December foot-injury claim. 2100307 The of the employee s t a t e d the occurrence accident t h a t he of t o MRM. the According i f he wanted to employee had said, Faggard Downtown Mobile and to file informed of the "No, [the the Airport facilities (also known Airport the employee worked. his time between and forth" the between two to a i r p o r t s and told accident nor accident t o MRM. P a u l Brown t e s t i f i e d 2 0 0 7 , he had not reported the telephone operator at the MRM is the that, counsel office, and, to and had where divided been relevant "back period. of reported in late the that November Faggard t h a t the testified person he the as employee him. f o r MRM, only 17 Mobile had replaced at Bates F i e l d but the the he having the it." Field"), t h a t he had tractor accident M a t t Graham, g e n e r a l switchboard about a p r o m o t i o n and the employee's s u p e r v i s o r of n e i t h e r i n f o r m e d him tractor had him and Field"), that had carrier's both "Bates during reported time care at "Brookley F a g g a r d s a i d t h a t the employee had received take testified them e a c h day that both Faggard compensation ( a l s o known as Faggard h i s having at manager as Faggard, employee, a report s a i d t h e y were g o i n g was Regional later accident a s k e d him representative] had said, who the that answers the the switchboard 2100307 operator MRM or the tractor that d i d not a u t h o r i t y to d e c i d e or to s t a t e i n s u r e r would accident MRM have the to the "tack that, switchboard operator the switchboard operator should adjustor. Tina the Graham a c k n o w l e d g e d t h a t accident without physician's allegedly MRM had approved reposition following office to the incident having resulted procedure have and reimplant then Graham did not the tractor accident, the MRM was would not to the the have p a i d Dr. for 2007 any treating the that had Graham c o n c e d e d that injury Yearwood's surgical device employee's and back. "Q. [By c o u n s e l f o r t h e e m p l o y e e : ] O k a y . So, we can take i t from t h a t , then, that i f [Dr. Yearwood's b i l l f o r t h e s u r g e r y ] was p a i d , t h e n i t was reviewed a n d [MRM] h a d a c c e p t e d t h a t as b e i n g r e l a t e d t o t h e work a c c i d e n t ? a d j u s t o r d i d her j o b , and v e r i f i e d t h a t i t 18 the tractor occurred: "A. [By G r a h a m : ] I f t h e got a b i l l , got r e c o r d s related." an authorized neurostimulator in to handling December accident. precertified employee testify. to the explained had the told who pertinent that from r e f e r r e d the the electrodes exchange the reviewed notes from arising employee adjustor foot-injury claim, treatment claim i f the d e t a i l s of Hicks, medical any foot-injury claim. policy dictated employee's on" that she was to The 2100307 In r e b u t t a l , the Sanders, a employee p r e s e n t e d former coworker, who the stated testimony that he had said that he employee had the accident With been o p e r a t i n g and another reported had run coworker the over a hole. had been tractor accident Ezekial heard the tractor e m p l o y e e c o m p l a i n a b o u t h u r t i n g h i s b a c k when t h e employee had of the Sanders present also when the to Faggard the day occurred. respect to the notice issue, the trial court found: "[The employee] r e p o r t e d [the t r a c t o r ] i n c i d e n t to a representative at [MRM], the third-party administrator handling his workers-compensation claim. He was t o l d t h a t t h i s [ a c c i d e n t ] w o u l d be a d d r e s s e d as a p a r t o f t h e e x i s t i n g c l a i m [ f o r t h e foot i n j u r y ] . He l i k e w i s e r e p o r t e d [the t r a c t o r ] incident to his supervisor either that day, or w i t h i n a day or two." "Actual requirement fact t o be knowledge s u f f i c i e n t t o remove the w r i t t e n [of § 25-5-78, A l a . d e t e r m i n e d by testimony considering the absence Hicks, the a d j u s t o r who had handled the employee's f o o t - i n j u r y c l a i m , the of the any 1061 ( A l a . C i v . App. Hornady the of 1059, James v. In weighing could 2d court." of Inc., court So. trial i s a question Truck Line, trial 601 the Code 1975,] notice employee and testimony by r e a s o n a b l y have found t h a t 19 1992) Graham, and Tina the employee . in had 2100307 telephoned the to the policy office switchboard and had employee had the part employer operator then a a in the or Clemons, Ala. App. the had an injury 306 2d & R u b b e r Co. 2009) (quoting D a v i s v. 652 So. ( A l a . C i v . App. 1994)). an 762, accident turn, to a workers' receives accident notice from Champion I n t ' l Civ. 764 App. the of the 31 Williams, 686 the will v. Civ. So. App. 3d 715, Giving notice is So. of on Paragon B u i l d e r s , work-related surgeon whom F o o d s Co. compensation a d m i n i s t r a t o r operating C o r p . v. agent (Ala. Long, ( A l a . C i v . App. to occurred 18 v. MRM "'Knowledge has 720 2d followed Beatrice So. information adjustor, accident. employer. 150, Goodyear T i r e turn, representative work-related imputed to r e l a t e d some employee to reported g e n e r a l l y be 1975).'" had who, supervisory that 54 and r e f e r r e d the the of o f MRM who, in of the nature sufficient. 2d 1204, of See 1206 (Ala. 1996). In the January 7, present 2008, neurostimulator tractor favorable Dr. indicated device accident. to the case, had that been Viewing Yearwood's the the f i n d i n g s of the t r i a l 20 electrodes dislodged facts office in a in the c o u r t , we note of on the work-related light conclude most that 2100307 the trial c o u r t was a u t h o r i z e d approved and p r e c e r t i f i e d the neurostimulator the employee's actual i n an The whether tractor trial the employer's preponderance Elliot, i n the testimony t h e employee accident court, to reimplant the electrodes i n representative tractor had accident had had that had injury. conflict regarding the and t o r e a t t a c h knowledge o f a w o r k - r e l a t e d resulted t h a t , b e c a u s e MRM Dr. Yearwood's s u r g e r y device back, to find "was of the court evidence." 650 S o . 2 d 9 0 6 , 909 Faggard had n o t i f i e d a matter f o r i ti s that of and a supervisor t o be d e t e r m i n e d that reviews See by the Stores 1994). "When e v i d e n c e i s p r e s e n t e d o r e t e n u s , i t i s t h e duty of the t r i a l c o u r t , which had the o p p o r t u n i t y to observe the witnesses and t h e i r demeanors, and not the appellate court, t o make credibility d e t e r m i n a t i o n s and t o weigh t h e e v i d e n c e presented. B l a c k m a n v . G r a y R i d e r T r u c k L i n e s , I n c . , 716 S o . 2 d 698 , 700 ( A l a . C i v . A p p . 1 9 9 8 ) . The r o l e o f t h e appellate court i s not to reweigh the evidence but to a f f i r m t h e judgment of t h e t r i a l c o u r t i f i t s findings are reasonably supported by t h e evidence and t h e c o r r e c t l e g a l c o n c l u s i o n s have b e e n drawn t h e r e f r o m . E x p a r t e T r i n i t y I n d u s . , [ I n c . , ] 680 S o . 2d [262] a t 268-69 [(Ala. 1996)]; Fryfogle v. S p r i n g h i l l Mem'l H o s p . , I n c . , 742 S o . 2 d 1 2 5 5 ( A l a . Civ. A p p . 1 9 9 8 ) , a f f ' d , 742 S o . 2 d 1258 ( A l a . 1 9 9 9 ) . The ' a p p e l l a t e c o u r t must v i e w t h e f a c t s i n t h e l i g h t most f a v o r a b l e t o t h e f i n d i n g s o f t h e t r i a l court.' Ex p a r t e P r o f e s s i o n a l B u s . Owners Ass'n 21 of the weight or Wal-Mart ( A l a . C i v . App. Sanders v. 2100307 Workers' 2 00 3)." Ex parte In trial Comp. Hayes, the court 70 Fund, So. 867 3d So. 1211, 2d 1215 conclusions-of-law 1099, 1102 (Ala. section of (Ala. 2011). i t s judgment, the stated: "Although the evidence demonstrates t h a t [the e m p l o y e e ] d i d r e p o r t t h e December 2007 i n c i d e n t t o his supervisor, this was not actually required b e c a u s e t h e e m p l o y e r was a l r e a d y on n o t i c e o f the initial job injury. See R a g l a n d B r i c k Co. v. Campbell, 409 So. 2d 443 ( A l a . C i v . App. 1982) ('Once t h e e m p l o y e r h a s a c t u a l n o t i c e o f an a c c i d e n t and injury, the statute does not require the claimant to provide f u r t h e r n o t i c e or continuing information except upon request. In light of B e a t r i c e F o o d s [Co. v . C l e m o n s , 54 A l a . A p p . 150, 306 So. 2 d 18 ( A l a . C i v . App. 1 9 7 5 ) ] , we a r e not c o n v i n c e d t h a t i t was a b s o l u t e l y n e c e s s a r y t h a t t h e e m p l o y e r be i n f o r m e d o f t h e b a c k i n j u r y as l o n g as t h e r e was a reasonable medical connection between t h e i n j u r y t h e e m p l o y e r was s p e c i f i c a l l y i n f o r m e d o f and t h e r e s u l t i n g i n j u r y . ' ) . " The of the trial court's tractor accident already on notice reasonable medical gait -- Foods Clemons, v. 1975), c i t e d the is the foot supported 54 i n the -- that r e q u i r e d because the connection r e s u l t i n g from Co. was of derangements App. alternative holding foot injury between the i n j u r y and by Ala. App. trial Alabama 150, court's 22 and no employer there employee's the was So. was a altered employee's law. 306 notice disk In Beatrice 2d 18 (Civ. judgment, Clemons, the 2100307 worker, hurt fell from h i s neck t h e cab o f h i s t r a c t o r - t r a i l e r and shoulders. Beatrice Foods truck and Company, h i s employer, acknowledged t h a t Clemons had r e p o r t e d t h e a c c i d e n t , but i t denied any knowledge that Clemons had been injured. F o l l o w i n g t h e a c c i d e n t , Clemons worked w i t h neck p a i n f o r n i n e months b e f o r e cervical as h e was d i a g n o s e d disk. to notice The t r i a l i n favor arguing that court's finding accident there that court as s u f f e r i n g from a resolved o f Clemons. was no the factual Beatrice evidence to i t had had a c t u a l h a d r e s u l t e d i n an i n j u r y . This herniated Foods appealed, support the knowledge court dispute trial that the held: " T h e r e was s u f f i c i e n t i n f o r m a t i o n b r o u g h t t o t h e k n o w l e d g e o f [ B e a t r i c e F o o d s ] t o p l a c e i t on n o t i c e t h a t an a c c i d e n t h a d o c c u r r e d t o [Clemons] a n d t h a t a r e s u l t a n t i n j u r y o f some d e g r e e h a d o c c u r r e d o r was l i k e l y t o h a v e o c c u r r e d . [Clemons] i m p a r t e d t o [Beatrice Foods] a l l the knowledge which he p o s s e s s e d a t t h e t i m e , i . e . , t h a t he h a d f a l l e n a substantial height from the cab of the t r a c t o r - t r a i l e r r i g , l a n d i n g on c o n c r e t e w i t h h i s w e i g h t o f 280 p o u n d s on h i s s h o u l d e r s a n d n e c k , a n d t h a t h e was i n p a i n . O n c e a c t u a l k n o w l e d g e o f a n a c c i d e n t and i n j u r y i s i m p a r t e d t o an e m p l o y e r , t h e o p p o r t u n i t y f o r i n v e s t i g a t i o n of t h e a c c i d e n t and injury and to protect against simulated and exaggerated claims i s presented." 54 A l a . App. at 153-54, 306 So. 2d at 20-21. This court f o l l o w e d B e a t r i c e F o o d s i n R a g l a n d B r i c k Co. v. C a m p b e l l , 23 409 2100307 So. 2d 443 trial that (Ala. court's the finding judgment. resulting Brick, the injury was in injuries not required 78 So. the worker's] findings the conclusions court trial the held court's o r a l n o t i c e of the USA had found there knee Plates 434 knee and (Ala. Civ. that the an and holding that there was worker] of court's by his was not Alabama 24 that, a back "lower-back caused because injury to Inc. (stating reasonable required by those medical and his specifically injury"). findings substantial s u p p o r t e d by the w h i c h was lower-back lower-back factual reasonable 2011) worker's injury" [the a and App. altered gait, worker's] was & Shapes S o u t h e a s t , ankle [the back. injury o f an supported are to h i s result employer trial are given because 428, court between injury, The 3d "indicate[d] connection notify between also Metals trial was this in the See Conner, cited the injury. issue Ragland also t h i s court determined that s p e c i f i c n o t i c e of injury ankle case s u f f i c i e n t to support the connection [the In a In medical that 1982), t h a t C a m p b e l l , the w o r k e r , had alternative, v. App. e v i d e n c e was accident back Civ. regarding evidence, law. and the its notice legal 2100307 Cumulative-Physical-Stress The from e m p l o y e r c o n t e n d s t h a t , i f t h e e m p l o y e e was a lower-back physical-stress to the support his answer to the motion. did claim. that the c l e a r and was a suffering cumulative- e m p l o y e e was required convincing evidence and adduce sufficient evidence in employer raised that not The amended c o m p l a i n t Section injury f o r which c l a i m by employee of injury, disorder establish his that Disorder 25-5-81(c), and again issue in its i n i t s postjudgment A l a . Code 1975, provides: "The d e c i s i o n of the c o u r t s h a l l be b a s e d on a p r e p o n d e r a n c e o f t h e e v i d e n c e as c o n t a i n e d i n t h e r e c o r d of the hearing, except i n cases i n v o l v i n g injuries which have resulted from gradual deterioration or cumulative physical stress d i s o r d e r s , w h i c h s h a l l be deemed c o m p e n s a b l e o n l y upon a f i n d i n g o f c l e a r and c o n v i n c i n g p r o o f that t h o s e i n j u r i e s a r o s e o u t of and i n t h e c o u r s e o f the employee's employment." "[T]he burden of compensation condition at issue, Prewett Inc. the claimant depends action c o n d i t i o n was South, proof not but purportedly v. & Son, Goodwin, Inc. v. upon must meet upon the the manner caused." Associated 965 2d Brown, So. 896 2004)). 25 So. at 2d 1110 564 in a nature in workers' of which Grocers of (citing (Ala. Civ. the that the V.I. App. 2100307 The disk "condition at issue" in this derangements. altered gait that the employee's the disk The had 2006 foot Park gait can contribute the repetitive walking the spine. lumbar back-injury was See v. subject claim to 2010), this the was natural a to based employee's contributing Dr. i t s very nature, only the through a on his that Orr, supra; Corp., 55 So. 3d 1225 Dr. altered mechanism the altered gait, Sistrunk, and preexisting clear-and-convincing-evidence v. supra. (Ala. stress of on employee's that claim standard. In Harris Civ. explained: " I f the worker a s s e r t s t h a t the o r i g i n a l compensable i n j u r y caused the worker to g r a d u a l l y acquire a s u c c e s s i v e i n j u r y due t o c u m u l a t i v e t r a u m a , t h e n t h e clear-and-convincing-evidence standard applies to t h a t c l a i m . See W a l - M a r t S t o r e s , I n c . v . K e n n e d y , 799 So. 2d 188 ( A l a . C i v . App. 2001) (holding that the c l e a r - a n d - c o n v i n c i n g - e v i d e n c e standard applied t o t h e c l a i m o f an i n j u r e d w o r k e r who a s s e r t e d t h a t she had acquired carpal tunnel syndrome from repetitively using a cane and walker while convalescing from w o r k - r e l a t e d hip i n j u r i e s ) ; and S i s t r u n k v. S i k o r s k y S u p p o r t S e r v s . , I n c . , 961 So. 26 of of an cumulative physical extent the cause Revels, of the that consequence acceleration back Thus, Petroleum court by that places the Wal-Mart Stores Russell to was a the determined Richardson, that, lower as injury Dr. a l l acknowledged in court developed derangements. condition trial c a s e was App. 2100307 2d 166 (Ala. Civ. App. 2007) (applying clear-and-convincing-evidence standard to c l a i m t h a t worker injured left shoulder due to overuse following work-related right-shoulder injury). On the other hand, i f the worker a l l e g e s that the o r i g i n a l compensable i n j u r y caused the worker to s u f f e r a l a t e r sudden, t r a u m a t i c i n j u r y , i t f o l l o w s that the clear-and-convincing-evidence standard would not a p p l y to t h a t c l a i m . " 55 So. 3d at Section evidence 1229. 25-5-81(c) defines "clear and convincing" as " e v i d e n c e t h a t , when w e i g h t e d a g a i n s t e v i d e n c e i n o p p o s i t i o n , w i l l produce i n the mind of the t r i e r of f a c t a f i r m c o n v i c t i o n as t o e a c h e s s e n t i a l e l e m e n t of the c l a i m and a high p r o b a b i l i t y as to the correctness o f t h e c o n c l u s i o n . P r o o f by c l e a r and convincing evidence requires a level of proof g r e a t e r than a preponderance of the evidence or the s u b s t a n t i a l weight of the evidence, but l e s s than beyond a reasonable doubt." The employer does not the foot the evidence injury. d e v e l o p e d an was contest It did contest sufficient to at trial, show that with In d e p o s i t i o n in the to whether employee had foot injury. conflict. testimony, partner, s t a t e d t h a t the in 2007 when Dr. respect however, a l t e r e d g a i t as a c o n s e q u e n c e o f t h e T h a t e v i d e n c e was July l e g a l causation Dr. Guy L. Rutledge, e m p l o y e e d i d n o t h a v e an Rutledge 27 last saw him. Dr. Park's altered gait Dimmick, the 2100307 e x e r c i s e p h y s i o l o g i s t who c o n d u c t e d t h e FCE i n S e p t e m b e r testified FCE. that the employee's In deposition Yearwood stated gait testimony that he was taken had u s u a l l y w h e n t h e e m p l o y e e was s e a t e d 2008, "normal" during on May seen 26, the 2010, Dr. t h e employee on an i n j e c t i o n only t a b l e and, thus, he c o u l d n o t s a y w h e t h e r t h e e m p l o y e e w a l k e d w i t h a limp. Nor could whether the he recall, " o f f the employee had r e p o r t e d note top of h i s head," an a l t e r e d g a i t . o f June 17, 2009, however, Dr. Yearwood's states that office the "patient has d e v e l o p e d s i g n i f i c a n t low back p a i n b e l i e v e d t o be a r e s u l t o f compensatory gait changes related testified that to h i s work-related leg injury." The employee he had begun t o favor h i s i n j u r e d f o o t soon a f t e r r e t u r n i n g t o work i n J a n u a r y 2007. explained begun as that, to limp foot that injury. Faggard, t h e employee's he h a d Dr. Park t e s t i f i e d a limp. supervisor, t h e employee had "walked slower" t r e a t i n g the employee, walked with i n h i s foot had increased, a n d t h a t h i s l i m p i n g h a d become more p r o n o u n c e d t h e day p r o g r e s s e d . acknowledged was as t h e p a i n He by d e p o s i t i o n he h a d n o t i c e d I n t h e month p r e c e d i n g 28 after the that, while that he t h e employee h i s r e t u r n t o work 2100307 in January hardening 2007, sessions the employee at the Dr. Park moderate In trial noted of during those the Dr. in Park. 30 work- The report s e s s i o n s t h a t was employee walked w i t h a sent "light to limp." the findings-of-fact court pace, that participated direction of the employee's progress to had observed takes pronounced that smaller section the than of employee normal its judgment, "moves a t steps, and the a very has slow a very limp." "[I]n the context of workers' compensation claims t h a t t h e A c t r e q u i r e s t o be p r o v e n by c l e a r and convincing evidence, appellate courts are not p e r m i t t e d to reweigh the evidence presented to the trial court by, for instance, estimating the c r e d i b i l i t y of witnesses The appellate court must r e v i e w the evidence and the trial court's judgment s o l e l y t o answer the q u e s t i o n whether '"the f a c t - f i n d e r reasonably c o u l d have determined t h a t the fact was proven by clear and convincing evidence."'" D e S h a z o C r a n e Co. App. 200 9) 2008), 749, Harris, 57 So. 3d ( q u o t i n g Ex p a r t e M c I n i s h , quoting 759 v. i n t u r n KGS ( A l a . C i v . App. result)). r e s o l v e d the We conclude conflict Steel, 47 So. 767, (Ala. 2d in the trial e v i d e n c e by 29 McInish, 774 So. the v. 3d (Ala. Civ. 47 that Inc. 108-09 (Murdock, J . , c o n c u r r i n g 2006) i n the 105, court could determining that have the 2100307 witnesses limp in who stated that e i t h e r saw the day the before the e m p l o y e e o n l y when he the pain he enough to produce a v i s i b l e words, trial the trial court was presented reasonably established was walked with seated had that the in to medical the evidence. acknowledged problems that or biomechanical Dr. natural altered aggravate that, employee had that finding the consequence -- gait can cause altered of the gait that employee's had preexisting trial Dr. upon trial court] and a evidence high conclusion." that would developed 2006 f o o t "produce court's Richardson's injury c o n t r i b u t i n g c a u s e o f t h e d i s k d e r a n g e m e n t s -- was, based Park a l l lower-back accelerate adopted conflict Dr. and which injury. no Revels, The i n the § as to 25-5-81(c). 30 the as a was a therefore, mind [of a f i r m c o n v i c t i o n as t o e a c h e l e m e n t o f t h e probability the and Dr. and other clearly t h e r e was problems i n the lumbar spine. medical-causation conclusion Richardson, an can causation, early In d e v e l o p e d an a l t e r e d g a i t a s a c o n s e q u e n c e o f h i s f o o t With respect a increased evidence determined, fact or in his gait. with have the not experiencing alteration c o u r t was could convincingly employee had correctness of the claim the 2100307 For the reasons Circuit Court s e t out above, t h e judgment of the M o b i l e i s affirmed. AFFIRMED. Thompson, P.J., and Bryan, concur. 31 Thomas, and Moore, JJ.,

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