Ex Parte Dan River, Inc.

794 So. 2d 386, 2000 WL 968504
CourtSupreme Court of Alabama
DecidedNovember 22, 2000
Docket1990894
StatusPublished
Cited by10 cases

This text of 794 So. 2d 386 (Ex Parte Dan River, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ex Parte Dan River, Inc., 794 So. 2d 386, 2000 WL 968504 (Ala. 2000).

Opinion

794 So.2d 386 (2000)

Ex parte DAN RIVER, INC.
(In re Dan River, Inc. v. James V. Higgins).

1990894.

Supreme Court of Alabama.

July 14, 2000.
Opinion Overruling Rehearing November 22, 2000.

*387 John W. Clark, Jr., and Tommy C. Ritter, Jr., of Clark & Scott, P.C., Birmingham, for petitioner.

William P. Boggs and Amy J. Hayes of Boggs & Hayes, Clanton, for respondent.

HOUSTON, Justice.

On April 26, 1995, James Higgins sued for workers' compensation benefits, alleging that he had "become totally disabled as a result of occupational byssinosis, a disease of the lungs, caused by inhalation of minute particles of dust over a period of time and which ... dust is due to causes and conditions arising out of and in the course of plaintiff's employment [with Dan River, Inc., the defendant]." (Plaintiff's complaint, p. 2, R.7.) (Emphasis added.) Between 1954 and 1977, and on one occasion after 1977,[1] Higgins was exposed to cotton dust and fibers as part of his work environment at Dan River, and Higgins alleges that these materials, the dust and fibers, caused his byssinosis. Byssinosis was the only disease Higgins claimed to have contracted because of his work at Dan River.[2]

*388 Three doctors who had examined Higgins testified by deposition. Dr. Brian G. Forrester, a specialist in occupational and environmental medicine, testified as follows, in response to what the attorney for Dan River called "the ultimate question":

"Q. ... Do you have an opinion from having seen and examined Mr. Higgins as to whether he has byssinosis?
"A. Yes, I do.
"Q. What is your opinion?
"A. My opinion is he does not have byssinosis. He has none occupational [sic; nonoccupational?] form of adult asthma.
"Q. When you say a nonoccupational form of adult asthma, is that something that, in your judgment, is not related to the work which you understood him to have done?
"A. It is not caused by his work, yes."

Dr. Gaeton D. Lorino also testified that Higgins did not suffer from byssinosis:

"Q. Dr. Lorino, I'm just going to cut to the chase and ask you if you have an opinion, based on your examination, from your interviewing the patient, getting a patient history from him and your testing of him, as to whether or not Mr. Higgins has byssinosis. Do you have an opinion one way or another?
"A. Yes, I do have an opinion.
"Q. Dr. Lorino, can you state, to a reasonable degree of medical probability, what that opinion is?
"A. Yes. It's my opinion that this man does not have byssinosis."

The third doctor, Dr. Robert Fort Hambaugh, Jr., testified that he had been treating Higgins since 1992. Dr. Hambaugh attributed Higgins's breathing problem to his work conditions and exposures to the cotton dust and fibers at work. He treated Higgins for upper and lower respiratory illnesses that he said always followed the same pattern: chronic sinusitis with acute exacerbations, chronic bronchitis with acute exacerbations, always in close proximity to exposure to inhalants while working at Dan River. This same pattern repeated until Higgins retired from Dan River, he said, and the condition then began to improve. Dr. Hambaugh stated that textile fibers are known to cause very serious pulmonary diseases that are chronic, progressive, and even fatal. However, Dr. Hambaugh did not diagnose Higgins with byssinosis:

"Q. Did he have byssinosis?
"A. Byssinosis is, in fact, the pulmonary disorder that I'm talking about. I have never made the specific diagnosis of byssinosis in this person. I believe the only way you could do that would be to go into his chest and into his lungs and take a biopsy to see if the fibers of that kind were actually present. Up to now, I haven't been willing to do that."

(Emphasis added.)

Based upon these doctors' depositions and the testimony of the plaintiff, the trial judge entered this final judgment:

"This cause coming on before this Court upon the Complaint, Answer thereto, exhibits admitted and stipulations along with testimony taken before this Court on December 10, 1998 and upon consideration of all the evidence and testimony, this Court does make the following finding of fact and reaches these conclusions:
"1. The Defendant, Dan River, Inc., is an employer within the meaning of the [Workers'] Compensation Laws of the State of Alabama and was doing business in Elmore County, Alabama on January 29, 1994 and that this Court has jurisdiction of the cause of action of these parties.
*389 "2. The Plaintiff, James V. Higgins, on January 29, 1994 was an employee within the meaning of the [Workers'] Compensation Laws of the State of Alabama and was at that time covered by the Act.
"3. On January 29, 1994, the Plaintiff sustained an occupational disabling disease arising out of and in the course of his employment with the Defendant, Dan River, Inc., to wit: byssinosis.
"4. The Plaintiff has suffered an occupational disease as defined in Article 4, [§] 25-5-110 et seq. To wit: byssinosis, caused by a hazard peculiar to the textile industry.
"5. The Court further finds that the Plaintiff has suffered permanent, total disability under [§] 25-5-57[ (a) ], subparagraph (4). That the Plaintiff is 66 years old and he has been employed as a cotton mill worker for 40 years, that Plaintiff finished high school and it appears to this Court that he is not qualified by education, training or experience to do any ... work except that of a doffer in a cotton mill which required stamina and physical effort.
"6. The Court finds that the Plaintiff suffered a permanent, total disability to the extent of 100% of the body as a whole, and he is not able to earn wages as a result of this occupational disease, to wit: byssinosis.
"7. The Court finds that at the time the Plaintiff became totally disabled that he had an average weekly wage of $507.00 and is entitled to compensation at the rate of $338.43 per week for the remainder of his disability. The Court further finds that there has accumulated compensation benefits since January 29, 1994 through February 25, 1999, a total of 264 weeks at $338.43 per week or a total of $89,345.52 [sic].
"IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by this Court that the Plaintiff have and recover of the Defendant, the lump sum of $89,345.52 for the 264 week accumulated compensation and that this sum be paid immediately, and that the Defendant pay to the Plaintiff, each week thereafter, commencing March 5, 1999, the sum of $338.43 for the duration of the Plaintiffs disability.
"IT IS FURTHER ORDERED that the Plaintiff's attorney, William P. Boggs of Boggs & Hayes, be paid as attorneys fees out of the lump sum payment, the sum of $13,401.81. It is further ORDERED that the Plaintiff's attorney, as attorneys fee, will receive (15%), Fifteen percent, of the weekly benefits that the Plaintiff will receive for the duration of his disability, said amount being $50.76 weekly.

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794 So. 2d 386, 2000 WL 968504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-dan-river-inc-ala-2000.