Dempsey v. White Consolidated Industries, Inc.

620 So. 2d 38, 1993 Ala. Civ. App. LEXIS 15, 1993 WL 6354
CourtCourt of Civil Appeals of Alabama
DecidedJanuary 15, 1993
Docket2910430
StatusPublished
Cited by4 cases

This text of 620 So. 2d 38 (Dempsey v. White Consolidated Industries, Inc.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dempsey v. White Consolidated Industries, Inc., 620 So. 2d 38, 1993 Ala. Civ. App. LEXIS 15, 1993 WL 6354 (Ala. Ct. App. 1993).

Opinion

THIGPEN, Judge.

This is a workmen’s compensation ease.

Upon receiving ore tenus evidence, the trial court found that the injury suffered by Tim G. Dempsey was not job-related, and that Dempsey had not suffered any loss of earning ability.

Dempsey’s claim for workmen’s compensation benefits against his employer, White Consolidated Industries, Inc. (White), was disputed by- White. Following a trial in November 1991, the trial court found that Dempsey had been seriously injured in an automobile accident in 1973, which required a complete hip replacement to the right side. After this prosthesis was installed, Dempsey resumed normal physical activity, including strenuous activity.

Dempsey testified that on December 5, 1986, he worked on White’s assembly line. At the end of his shift, he was walking across a steel bridge over a conveyor belt toward the time clock when he stepped on a spot of grease, and this caused him to fall to the concrete floor below. He felt a sharp pain in his right hip and leg, but he proceeded to the time clock, clocked out, and went home. He later went to an emergency room for treatment, and he was later seen and treated by various physicians, including orthopedic surgeons. The record reveals that Dempsey originally told two of his physicians that he “took a hard step” but that he did not actually fall. Later, however, Dempsey stated that he had fallen eight feet from the top of the walkway to the concrete floor. The trial court found that the evidence, including photographs of the scene, was inconsistent with Dempsey’s testimony regarding the fall. While the treating physician indicated that Dempsey had a physical impairment rating of 60% to the leg and 24% to the body as a whole, nevertheless he and another orthopedic surgeon agreed that the severe injury in 1973 which resulted in the original hip replacement was an extremely significant factor as to Dempsey’s present impairment. At least one physician who examined Dempsey testified that Dempsey was physically able to perform the same work as prior to his injury, and that he could return to his usual employment. Upon review of a videotape taken while Dempsey was under surveillance, the trial court concluded that “it was obvious that [Dempsey] was able to drive, walk substantial distances, stand and sit for extended periods, all without indication of any significant degree of difficulty other than a pronounced limp.” The trial court reviewed the deposition testimony of a vocational expert who opined that Dempsey was permanently and totally disabled in that he was unable to sit or stand for any extended period of time and was not physically able to return to his prior employment or work a normal work schedule. The trial court found that this conclusion was not substantiated by the evidence. Based upon [40]*40these findings, the trial court concluded, after a review of all the evidence, that Dempsey did not suffer “a compensable further injury as a result of the accident as alleged nor that he has suffered any loss of his ability to earn wages as a result thereof that has not already been paid by the Defendant.” Accordingly, judgment was entered for White and against Dempsey. Upon a denial of timely post-judgment motions, Dempsey appeals, asserting that the trial court erred in construing Dempsey’s prior injury as pre-existing for purposes of the workmen’s compensation law, where the evidence was undisputed that the injury had neither demonstrated itself as disabling nor prevented Dempsey from performing his work in a normal manner; that the trial court improperly considered and gave great weight to vocational evidence from an unqualified medical doctor; and that the trial court’s findings of facts and conclusions of law are not supported by any reasonable view of the evidence.

Our standard of review in workmen’s compensation cases is two-fold. First, we look to see if there is any legal evidence to support the trial court’s findings, and if such evidence is found, then we must determine whether any reasonable view of that evidence supports the trial court’s judgment. Ex parte Eastwood Foods, Inc., 575 So.2d 91 (Ala.1991).

Regarding Dempsey’s first contention, Ala.Code 1975, § 25-5-58, provides:

“If the degree or duration of disability resulting from an accident is increased or prolonged because of a preexisting injury or infirmity, the employer shall be liable only for the disability that would have resulted from the accident had the earlier injury or infirmity not existed.”

Pre-existing conditions do not affect an award of compensation if the on-the-job injury combined with the pre-exist-ing condition to produce a disability. Allen v. Metro Contract Services, Inc., 421 So.2d 1289 (Ala.Civ.App.1982). Further, if the evidence establishes that a pre-existing injury or condition is the root of a disability, and not a work-related accident, then the trial court is justified in determining that the employee suffered no compensable disability. Wilson v. Berry Industries Co., 451 So.2d 339 (Ala.Civ.App.1984). In the ease at bar, the evidence is vague regarding whether Dempsey’s injury resulted from the alleged accident or as a consequence of normal deterioration. There is evidence that Dempsey suffered an accident in 1973 which required a complete hip replacement in 1975. When questioned on cross-examination, Dempsey’s treating physician was asked:

“Q. Doctor, would a break in the stem of a prosthesis be consistent with the aging processes as you described it?
[[Image here]]
“A. Yes. I think that a break in the stem of the prosthesis would be.”

Later, during the same colloquy, the doctor was asked:

“Q. Is that fracture as you have now described it consistent with the aging process as you have described it?
[[Image here]]
“A. I would just look at this and say that it does not look to me like cement loosening has occurred to any degree in the femoral side. It has in the acetabu-lar side. It looks to me like the fatiguing of this metal is more the result of metal failure than it is cement failure. So the usual process of cement loosening followed by metal fracturing would not be the case here. I think this would tend to be more just a wear process than it would be a cement failure process.”

On re-direct, while the doctor testified that, in his opinion, the fracture of the metal occurred at the time of the alleged work-related injury, nevertheless he further stated:

“I do feel like that the problem with the metal, as you say, is the problem with any metal, that there is a life span of any metal. And I think that probably this was about — If he hadn’t fallen, the metal would have cracked sometime down the road anyway.”

The medical records disclose that at the time Dempsey first reported his injury to the physicians, he described the injury as [41]*41having occurred on “steps going over [the conveyor] in Dept. #22 ... did not fall just twisted legs.” Later, the physician’s notes disclose that Dempsey stated he “did not fall but he stepped down very hard and had the immediate onset of pain in his right knee.”

The medical records also reveal that he had suffered a fracture of his hip prosthesis at the junction between the stem and the neck of the prosthesis, which resulted in two additional surgeries and a total replacement prosthesis.

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Bluebook (online)
620 So. 2d 38, 1993 Ala. Civ. App. LEXIS 15, 1993 WL 6354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dempsey-v-white-consolidated-industries-inc-alacivapp-1993.