Shoney's, Inc., appeals from a judgment of the Montgomery Circuit Court awarding workers' compensation benefits to Sachiko Rigsby for a permanent and total disability arising from carpal tunnel syndrome.
In January 2002, Rigsby filed this action seeking workers' compensation benefits. This case was tried ore tenus on May 10, 2004. On May 31, 2005, the trial court entered a judgment awarding Rigsby workers' compensation benefits for a permanent and total disability based on its findings that Rigsby suffered from carpal tunnel syndrome in both wrists and that her carpal tunnel syndrome was caused by her employment.
Shoney's filed a postjudgment motion under Rule 59(e), Ala. R. Civ. P. On August 17, 2005, the trial court entered an amended judgment that made detailed findings about the repetitive nature of many of Rigsby's job tasks and Rigsby's constant use of her hands at work. Regarding the testimony of Dr. Edward E. Palmer, Rigsby's treating orthopedic surgeon, the trial court stated:
Shoney's filed a timely appeal, contending (1) that Rigsby's injury was a cumulative-physical-stress disorder and that she did not prove by clear and convincing evidence that her injury was caused by her employment, (2) that the trial court erred in awarding Rigsby permanent and total disability when her injury was solely to a scheduled member, her right hand and/or her right arm, and (3) that the trial court
Rigsby was 54 years old at the time of the trial in 2004.
In April 2000, Rigsby visited Dr. Palmer, complaining of pain and numbness in her hands and wrists. Dr. Palmer diagnosed Rigsby as having (1) "trigger thumb" that caused her left thumb to pop and lock up, (2) carpal tunnel syndrome in her right wrist, and (3) tendinitis in her left wrist. Dr. Palmer treated Rigsby with cortisone injections, which did not alleviate the pain in Rigsby's wrists.
In June 2000, Dr. Palmer performed a carpal-tunnel-release surgery on Rigsby's right wrist. In July 2000, Rigsby reported to Dr. Palmer that her condition had much improved and he released her to return to work without restriction. Rigsby returned to work at her job at Shoney's from July 2000 until April 2001. After Rigsby returned to work, she again complained of pain and numbness in her hands and wrists, and Rigsby quit work in April 2001 because of the pain in her hands and wrists. Rigsby has not worked since April 2001. Rigsby testified that she is able to do some housework, to drive on occasion, and to shop for groceries, but her hands hurt if she does too much. Rigsby takes pain medication because of the pain in her hands and wrists.
We first address Shoney's argument regarding the sufficiency of the evidence. Rigsby's condition is a "cumulative physical stress disorder." Consequently, the trial court's judgment in her favor had to be based upon evidence that the trial court could and did find to clearly and convincingly establish medical causation. Section 25-5-81(c) provides:
We also are mindful that "[t]his court is precluded from weighing the evidence presented before the trial court" and that "[w]e merely examine the record to determine if the conclusion of the trial court is reasonably supported by the evidence." Fryfogle v. Springhill Mem'l Hosp., Inc., 742 So.2d 1255, 1258 (Ala.Civ.
We turn now to Shoney's second argument. Shoney's contends, and we agree, that the trial court erred in treating Rigsby's injury as an unscheduled injury to the body as a whole, rather than as a scheduled injury under § 25-5-57(a)(3), Ala.Code 1975. Although Shoney's argues that Rigsby's injury was only to her right hand and wrist, the trial court found that Rigsby had suffered injuries to "her left and right arms, wrist, hands." Subsections 25-5-57(a)(3)a.12, -a.13, -a.15, -a.24, -a.25, and -a.28, Ala.Code 1975, prescribe the compensation to be awarded for various losses relating to hands and arms. Section 25-5-57(a)(3)d., Ala.Code 1975, governs the loss of use of a scheduled member and provides:
In Ex parte Drummond Co., 837 So.2d 831 (Ala.2002), our Supreme Court restated the test for determining when an injury to a scheduled member should result in an award of compensation beyond the scheduled amount. The Supreme Court held:
Ex parte Drummond Co., 837 So.2d at 834-35.
Masterbrand Cabinets, ___ So.2d at ___ (footnotes omitted). See also Stone & Webster Constr., Inc. v. Lanier, 914 So.2d 869, 877 (Ala.Civ.App.2005) (discussing Masterbrand Cabinets, Inc. v. Ruggs, 891 So.2d 869 (Ala.Civ.App.2004)).
In contrast to the record in Masterbrand Cabinets, Inc. v. Johnson, the record in the present case does not reveal substantial evidence indicating that pain from Rigsby's injuries "extends to other parts of [her] body and interferes with their efficiency" so as to warrant a recovery of benefits outside the schedule. The trial court found that Rigsby used her prescription pain medication two times per week on average. Moreover, as in Masterbrand Cabinets, Inc. v. Johnson, the evidence indicates that Rigsby's pain is "largely . . . precipitated by [her] use, or overuse, of the scheduled member," ___ So.2d at ___, and there is not substantial evidence from which the trial court could find to the contrary. "In such a case, the worker, by refraining from the use of that member, may largely avoid the pain in question with the result being that the worker is in no worse a position due to his inability to use the affected member than if the member had been completely lost." Masterbrand Cabinets, Inc. v. Johnson, ___ So.2d at ___ (footnote omitted).
Based on the foregoing, we conclude that the trial court erred in awarding Rigsby benefits based on an injury to the body as a whole, rather than awarding benefits based on the loss of use of scheduled members as contemplated by § 25-5-57(a)(3). We therefore reverse the judgment and remand the cause for the trial court to enter a judgment that applies that statutory provision and that otherwise is in accordance with this opinion.
REVERSED AND REMANDED.
CRAWLEY, P.J., and THOMPSON, J., concur.
PITTMAN, J., concurs in the result, with writing.
BRYAN, J., concurs in the result, without writing.
I concur in the result. See Alabama Workmen's Comp. Self-Insurers Guar. Ass'n v. Wilson, [Ms. 2040523, June 16, 2006] ___ So.2d ___ (Ala.Civ.App.2006), which I believe properly states the governing law in this area.
Masterbrand Cabinets, ___ So.2d at ___ (quoting Ex parte Drummond Co., 837 So.2d 831, 833 (Ala.2002), quoting in turn Bell, 282 Ala. at 646, 213 So.2d at 811) (some emphasis omitted). After noting that our Supreme Court in Ex parte Drummond Co. had articulated the new test quoted in the text of this opinion, the opinion in Masterbrand Cabinets then continued by stating:
Masterbrand Cabinets, ___ So.2d at ___ (emphasis added). To the extent the foregoing statement asserts that Ex parte Drummond Co. does not foreclose the employment of the so-called second prong of the Bell test—the allowance for compensation outside the schedule for "an abnormal and unusual incapacity with respect to the [scheduled] member"—the opinion in Masterbrand Cabinets failed to adequately consider footnote 10 and the accompanying text of the Ex parte Drummond Co. opinion. (Likewise incorrect was the similar implication in the main opinion in Stone & Webster Construction, Inc. v. Lanier, 914 So.2d 869, 877 (Ala.Civ.App.2005).) As the Supreme Court stated in Ex parte Drummond Co., "we decline to consider the so-called second prong of the Bell test a part of the test that we adopt today." 837 So.2d at 835 n. 10.
On the other hand, to the extent the above-quoted statement from Masterbrand Cabinets asserts that Ex parte Drummond Co. does not foreclose the awarding of compensation outside the schedule "when an injury . . . to a scheduled member entails . . . a debilitating pain . . . that impairs the body as a whole in a manner not contemplated by the schedule," it is correct. The Ex parte Drummond Co. Court itself noted that its opinion did not foreclose such compensation:
837 So.2d at 836 n. 11. The test adopted in Ex parte Drummond Co. would indeed appear to admit of such compensation. See Masterbrand Cabinets, ___ So.2d at ___ n. 3 (Noting "[b]y way of example, [that] a worker could experience ongoing pain from an injured member that is so continuous and severe, even when the worker refrains from the use of that member, as to materially adversely affect the worker's ability to use his mind or to concentrate to the degree necessary to accurately or safely perform various tasks. In a real sense, the effect of such pain could properly be considered as `extend[ing] to other parts of the body and interfer[ing] with their efficiency.'"). Similarly, it is conceivable that a worker's pain could be of such frequency and severity as to adversely affect his or her ability to sleep, thereby resulting in a material deterioration of his mental or physical health, or both.