Alabama Supreme Court 1970116.
WRIGHT, Retired Appellate Judge.
Jean Fowler filed a complaint in the Jefferson County Circuit Court against Bruno's Inc., seeking workmen's compensation benefits. Fowler alleged that she injured her back in April 1992 in an accident arising out of and in the course of her employment. Bruno's answered, asserting that Fowler's claim was barred by the statute of limitations, that she had a pre-existing condition, that she had failed to give notice, and that she did not suffer an on-the-job injury.
Following oral proceedings, the trial court entered a judgment, stating, in pertinent part:
The trial court awarded benefits accordingly.
Bruno's appeals, contending that Fowler failed to prove legal and medical causation, that the trial court erred in finding Fowler's average weekly wage to be $240, and that the trial court erred in not crediting Fowler's temporary total disability benefits against her permanent partial disability benefits.
Fowler's injury occurred before August 1, 1992; therefore, the standard set forth in Ex parte Veazey, 637 So.2d 1348 (Ala.1993), applies. That standard is:
637 So.2d at 1349.
For an injury to be compensable under the Workmen's Compensation Act, the injury must be caused by an accident arising out of and in the course of the employment. U.S. Steel v. Nelson, 634 So.2d 134 (Ala.Civ. App.1993). In order to prove that an accident occurred within the meaning of the Act, the employee must prove legal and medical causation. Id.
The record reveals the following pertinent facts: On April 7, 1992, while closing the seafood department of a Food World grocery store, Fowler used a shovel to remove ice from the seafood showcase. She testified that she felt a sudden sharp pain in her back, dropped the shovel, and called the night manager, who told her to go home. Fowler testified that she has been in constant pain since the accident, that she had two back operations, and that her pain has worsened since 1992. She also testified that in April 1992, she earned $4.25 per hour and that she worked 40 hours per week.
Dr. Donald H. Slappey, Jr., an orthopedic surgeon, testified by deposition that he had treated Fowler and that a CT scan of Fowler's back revealed three bulging discs at the lumbar level. Dr. Slappey related the disc bulges to degenerative disc disease. Dr. Slappey assigned Fowler a zero percent impairment.
Dr. Zenko Hrynkiw, a neurosurgeon, testified by deposition that he had treated Fowler and that an MRI revealed that Fowler had bulging discs at three levels. He testified that Fowler's bulging discs worsened until a herniation occurred at L2-3 and that he surgically removed a left-side herniation. Dr. Hrynkiw testified that, approximately two months after surgery, Fowler said that her pain was worsening. A myelogram was performed, which revealed a recurrent disc herniation. He testified that he performed a second surgery to remove the remainder of the disc at L2-3, that Fowler continued to complain of pain, and that he referred her to a pain clinic. Dr. Hrynkiw further testified that Fowler's disc could have herniated without any aggravation and that the bulging disc may have weakened over time and then herniated. He assigned Fowler a 14% permanent partial disability to the body as a whole and restricted her from climbing, crawling, and lifting anything over 30 pounds. Fowler's vocational expert testified that Fowler has a 70% loss of access to jobs and a 45% vocational impairment.
After carefully reviewing the record, we find that the totality of the circumstances of this case supports the trial court's finding that Fowler's injury was compensable.
Bruno's also contends that the trial court erred in determining Fowler's average weekly wage.
The determination of the average weekly wage is governed by § 25-5-57(b), Ala.Code 1975. That section provides the following:
The employee has the burden of presenting evidence for computation of his average weekly wage. Godbold v. Saulsberry, 671 So.2d 80 (Ala.Civ.App.1994). When it is impracticable to apply the formulas for determining average weekly wage so as to arrive at a just and equitable result to both parties, the matter is left to the discretion of the trial court. Henderson v. Johnson, 632 So.2d 488 (Ala.Civ.App.1993).
In this case, the evidence of Fowler's average weekly wage is limited to her testimony. She testified that in April 1992 she earned
Bruno's further contends that the trial court erred by failing to deduct Fowler's temporary total disability benefits from her permanent partial disability benefits.
Section 25-5-57(a)(3)g., Ala.Code 1975, as it read before the 1992 amendments, provided the following, in pertinent part:
The trial court found that Fowler did not receive temporary total disability benefits; however, at trial the parties stipulated that Bruno's paid Fowler temporary total disability benefits of $93.81 per week for six weeks and two days. Therefore, we conclude that the trial court erred in failing to deduct six weeks and two days from 300 weeks. However, Bruno's did not pay Fowler 66 2/3% of her average weekly wage for six weeks and two days, and Fowler is entitled to past-due temporary total disability benefits of $19.51 ($113.32 - 93.81 = $19.51) per week for that period.
Accordingly, we affirm that portion of the trial court's judgment finding that Fowler sustained a compensable injury and a 45% loss of earning capacity. We reverse those portions of the judgment finding that Fowler's average weekly wage was $240, finding that Bruno's did not pay Fowler temporary total disability benefits, and calculating her permanent partial disability benefits. We remand this cause to the trial court to determine Fowler's past-due temporary total disability benefits and to calculate Fowler's permanent partial disability benefits, using an average weekly wage of $170 and deducting six weeks and two days from the 300 weeks awarded for permanent partial disability benefits.
The foregoing opinion was prepared by Retired Appellate Judge L. Charles Wright while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Ala.Code 1975.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.
YATES, MONROE, CRAWLEY, and THOMPSON, JJ., concur.
ROBERTSON, P.J., concurs in the result only.