Kennamer Brothers, Inc. ("the employer"), timely sought appellate review of a judgment entered by the Marshall Circuit Court awarding Ronney Stewart ("the employee") temporary-total-disability ("TTD") benefits and medical benefits under the Alabama Workers' Compensation Act, Ala. Code 1975, § 25-5-1 et seq. ("the Act") for, among other things, a rotatorcuff tear suffered by the employee that, the trial court determined, had resulted from an accident arising out of and in the course of the employee's employment.
In December 2013, the employee brought a civil action against the employer, alleging that, on October 25, 2012, while the employee was in the line and scope of his employment as a truck driver, the vehicle he was operating overturned and crashed on an interstate highway in Tennessee, causing him to "receive injuries to his head, neck, back, left arm, legs, and body as a whole." In June 2015, the employee amended his complaint to add allegations of an injury to his right arm and right shoulder. The employer denied in its answer, as amended, that the employee's injuries were compensable under the Act. After an ore tenus proceeding, at which the employee testified and the parties submitted evidentiary exhibits, including the transcribed deposition testimony of both lay and expert witnesses, the trial court entered a judgment that, in pertinent part, determined that the employee's right-shoulder condition (
Our standard of review is set forth in
19 So.3d at 870-71 (citations omitted). We also add that, in reviewing factual determinations, an appellate court "must view the facts in the light most favorable to the findings of the trial court."
The employer's first issue is whether the trial court erred in determining that the employee's right-shoulder condition was, as a medical matter, caused by his truck crash. In cases involving alleged "accidents," that is, those involving "a sudden and traumatic event" such as the employee's truck crash, "an employee must produce substantial evidence tending to show that the alleged accident occurred and must also establish medical causation by showing that the accident caused or was a contributing cause of the injury."
At trial, the employee testified that he had noticed issues with his right shoulder as he came off the pain medication that he had been prescribed. On March 26, 2013, after completing initial treatment for the head wound, the employee returned to the neurologist, reporting lower back pain radiating to his legs, neck pain, and "whole arm pain," among other symptoms. The neurologist noted that the employee had been taking aspirin with no relief of his pain symptoms. The neurologist assessed the employee's condition as being "[d]iffuse upper and lower extremity symptoms with a significant numbness and tingling component," but, after ordering a magnetic-resonance-imaging ("MRI") procedure, the neurologist determined that the employee was at maximum medical improvement ("MMI") with no impairment.
The employee then requested a panel of four physicians pursuant to Ala. Code 1975, § 25-5-77(a), a portion of the Act pertaining to employer authorization for medical treatment, and selected an orthopedic specialist from that panel; during the employee's first consultation with that orthopedist on August 28, 2013, the employee reported problems with his back, neck, and both arms stemming from the truck crash. The employee testified at trial that he had informed the orthopedist at that consultation that his right arm had been hurting when he had put on a jacket and had removed a tea container from his refrigerator. After the employee underwent a surgical repair stemming from his head injury and completed several weeks of physical therapy with minimal effect, he returned to the orthopedist, who referred the employee for neurological testing that revealed the employee was suffering from a moderate to severe ulnar entrapment in his left arm. Because blocking injections failed to cause the employee's condition to improve, the orthopedist referred the employee to another physician in his practice, who diagnosed the employee with cubital tunnel syndrome and performed a release surgery on the employee's left arm in December 2013. However, the operating physician noted in his records that the employee's right shoulder remained an issue.
After the employee had been assessed as having reached MMI as to his head injury and left-arm condition, he underwent a functional-capacity evaluation; however, the evaluator noted that the employee had complained of sharp pain in his right shoulder, and he declined to provide an impairment rating as to the employee's right shoulder because it had not been fully evaluated. The employee thereafter consulted another orthopedic specialist, Dr. Eric W. Janssen, concerning his right-shoulder pain; Dr. Janssen ordered that the employee undergo an MRI procedure
At Dr. Janssen's deposition, counsel for the employer asked whether a rotator-cuff tear from a traumatic event would typically be immediately noticeable. He responded by saying that when a patient, typically a younger patient, suffers a rotator-cuff tear via throwing or heavy lifting, it is generally quite painful and that "most times" it would be immediately noticeable. Although Dr. Janssen agreed that it would be unusual for someone suffering such an injury not to report shoulder pain for approximately a year, he also testified that "there's a lot of variability" as to patient pain complaints. Further, although Dr. Janssen, after having his attention drawn to a chart of the employee's pain complaints at an August 28, 2013, consultation with another physician that did not indicate right-shoulder pain symptoms, opined that an absence of pain complaints for such a period would tend to show that there was no relationship between the trauma and the right-shoulder condition, the employee's own trial testimony was to the effect that he had orally reported transient right-shoulder pain to that physician on that date rather than marking it on the chart at check-in. Moreover, on further examination by counsel for the employee, Dr. Janssen acknowledged not only that pain from more severely injured areas of the body could "mask" symptoms of a rotator-cuff tear, but also that the medications administered to the employee for those conditions could have alleviated such symptoms, although he testified on further cross-examination that a year's delay in reporting symptoms would not likely occur even given the employee's medication history.
Contrary to the employer's overarching contention, the record in this case does not unequivocally show that the employee did not report any right-shoulder symptoms for approximately a year after the truck crash, although the medical records introduced indicate that the employee's earliest documented report of potential symptoms in his right shoulder occurred no earlier than five months after the truck crash. However, as we noted in
The second issue raised by the employer concerns whether the trial court properly determined that the employee's TTD stemming from the truck crash extended from December 21, 2012, to January 28, 2014.
The employer points to evidence in the record tending to indicate that, notwithstanding an initial medical release to resume working, the employee's employment was terminated by the employer on February 4, 2013, when he reported to work but was informed that the employer was not able to secure insurance coverage as to the employee because of his having been involved in automobile crashes. However, assuming the truth of that representation to the employee, the trial court could properly have determined that that reason for terminating the employee's employment is not
The final issue raised by the employer concerns whether the TTD award in the judgment is in violation of Ala. Code 1975, § 25-5-68, which specifies in subsection (a) that the maximum compensation payable under the Act is "100 percent of the average weekly wage" of the state as administratively determined by the director of the Alabama Department of Labor as of July 1 of each year but also states in subsection (e) that the "maximum benefits that are in effect on the date of the accident which results in injury or death shall be applicable
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.
Thompson, P.J., and Thomas, Moore, and Donaldson, JJ., concur.