Drummond Co. v. Myers

868 So. 2d 468, 2003 Ala. Civ. App. LEXIS 409, 2003 WL 21418354
CourtCourt of Civil Appeals of Alabama
DecidedJune 20, 2003
Docket2020120
StatusPublished
Cited by1 cases

This text of 868 So. 2d 468 (Drummond Co. v. Myers) 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
Drummond Co. v. Myers, 868 So. 2d 468, 2003 Ala. Civ. App. LEXIS 409, 2003 WL 21418354 (Ala. Ct. App. 2003).

Opinion

CRAWLEY, Judge.

The Drummond Company, Inc. (“the company”), appeals from a judgment awarding William Myers (“the worker”) benefits under the Workers’ Compensation Act based on a hearing loss the worker had allegedly sustained during the 22-year period in which he had worked for the company. The company challenges only one aspect of the judgment; it claims that the trial court erred to reversal in treating the worker’s injury as an injury to the body as a whole instead of as an injury to a scheduled member. See § 25-5-57(a)(3)a.l8., Ala.Code 1975; Drummond Co. v. Key, 854 So.2d 1159 (Ala.Civ.App.2002).

The standard of review this court uses when reviewing a trial court’s judgment in a workers’ compensation case is well settled. The Workers’ Compensation Act provides that “[i]n reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.” § 25-5-81(e)(l), Ala.Code 1975. Our supreme court has stated the standard of review to be applied to the trial court’s . findings of fact as follows:

“[Ujnder the applicable standard of review, we will not reverse the trial court’s finding of fact if that finding is supported by substantial evidence — if that finding is supported by ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ”

Ex parte Trinity Indus., Inc., 680 So.2d 262, 268-69 (Ala.1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989), and citing § 12-21-12(d), Ala.Code 1975)). See also § 25-5-81(e)(2), Ala.Code 1975. Further', “[t]he [1992 Workers’ Compensation] Act did not'alter the rule that this court does not weigh the evidence before the trial court.” Edwards v. Jesse Stutts, Inc., 655 So.2d 1012, 1014 (Ala.Civ.App.1995). However, our review of legal issues is without a presumption of correctness. § 25-5-81(e)(l), Ala.Code 1975; see also Ex parte Trinity Indus., 680 So.2d at 268.

The worker had worked for the company approximately 22 years, primarily as an electrician, repairing equipment in a coal mine owned by the company. He testified that he began experiencing problems with his hearing sometime between 1980 and 1985. He said that he consulted Dr. John Simmons about the problem; Dr. Simmons prescribed a hearing aid for him. Dr. Jack Aland testified in a deposition that he had examined the worker and had determined that the worker had moderate hearing loss. The evidence indicated that the company had provided earplugs to protect its workers’ hearing from the noise caused by the mining equipment; however, the worker testified that he had chosen not to use the earplugs because he had wanted to be able to hear the noise of the “top crack[470]*470ing”1 that preceded the collapse of a mine wall.

On January 21, 1997, the employee stopped working for the company because it closed the mine in which he was employed. On October 9, 1998, the worker sued the company, alleging that he had contracted pneumoconiosis, an occupational lung disease, as a result of his exposure to dust, smoke, and dangerous fumes while performing his coal-mining duties during his employment with the company and that he was permanently disabled as a result of such exposure. On January 5, 1999, the worker amended his complaint to include a claim for permanent hearing loss as a result of being exposed to hazardous noise levels during his employment.

The trial court held a trial on August 15, 2001, at which the worker and his wife presented testimony. The deposition testimony of several pulmonary specialists; Dr. Jack Aland; and a vocational expert, William Crunk, along with the worker’s medical records, were admitted into evidence. Thereafter, the trial court entered a judgment on September 24, 2001, denying the worker’s claim based on pneumoconiosis but finding him 37% permanently partially disabled based on his hearing loss. The trial court’s judgment stated, in pertinent part:

“That on and prior to [the worker’s] last date of employment with [the company] on January 21, 1997, and while working within the line and scope of his employment for [the company], [the worker] suffered an occupational hearing loss, which occupational disease arose out of and in the course of his employment for [the company] and resulted from the nature of [the worker’s] employment in and about the mining of coal due to large noisy machinery, which machinery emits noises with high frequencies and high decibel levels on regular and recurring bases in said work environment, and which adversely affects coal miners’ hearing. In particular, this Court finds that the coal mining industry has attached to it the particular hazard of hearing loss, and such hazard is different from and distinguishable from hazards associated with those ordinarily incident to employment in general. [The worker] was exposed to such hazards from the commencement of his employment by [the company] and continuing until termination of said employment.
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“That [the worker’s] injury is continuous and permanent. As a proximate consequence of said injury, [the worker] suffers severe hearing loss. That [the worker’s] injuries are disabling and place limitations on his ability to obtain suitable employment and his ability to earn a livelihood.
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“That [the worker] served in the military for two years. That [the worker] worked as an auto mechanic while in the military. That, after discharge from the military, he attended G.I. school and obtained his high school diploma. That following his military service, [the worker] worked as a union carpenter for more than twenty (20) years. Following that employment, [the worker] worked as a coal miner for approximately twenty-two (22) years. That [the worker] has no special training or skills other than mechanic work, carpentry work, and coal mining work. That [the work[471]*471er] has a severe hearing impairment, which makes it difficult for him to hear and carry on a conversation, especially in a noisy environment.
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“The Court specifically finds that [the worker] has sustained a thirty-seven percent (37%) permanent partial disability pursuant to the Workers’ Compensation Act of Alabama, and that [the worker] has lost at least thirty-seven percent (37%) of his access to employment and/or his employability, which is based upon [the worker’s] abilities in his presently disabled condition as a result of his age, education and experience. That the thirty-seven percent (37%) permanent partial disability to [the worker] is a direct result of [the worker] contracting an occupational-related hearing loss, which said condition causes [the worker] to be thirty-seven percent (37%) permanently partially disabled and incapacitated from working and having access to employment in the job market to that extent.”

The company argues that the trial court failed to follow our supreme court’s test, which was recently restated in Ex parte Drummond Co., 837 So.2d 831 (Ala.2002), for determining when an injury to a scheduled member could be compensated outside the schedule and treated as a disability to the entire body. We agree.

The supreme court explained its reason for restating the test as follows:

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Cite This Page — Counsel Stack

Bluebook (online)
868 So. 2d 468, 2003 Ala. Civ. App. LEXIS 409, 2003 WL 21418354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drummond-co-v-myers-alacivapp-2003.