Marshall Durbin Food Corp. v. Rogers

825 So. 2d 120, 2001 Ala. Civ. App. LEXIS 213, 2001 WL 527470
CourtCourt of Civil Appeals of Alabama
DecidedMay 18, 2001
Docket2000195
StatusPublished

This text of 825 So. 2d 120 (Marshall Durbin Food Corp. v. Rogers) 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
Marshall Durbin Food Corp. v. Rogers, 825 So. 2d 120, 2001 Ala. Civ. App. LEXIS 213, 2001 WL 527470 (Ala. Ct. App. 2001).

Opinion

YATES, Presiding Judge.

Dale Fredrick Rogers sued his employer, Marshall Durbin Food Corporation, on June 3, 1998, seeking to recover workers’ compensation benefits for an injury sustained to his back during the course of his employment with Marshall Durbin. Following an ore tenus proceeding, the trial court, on June 12, 2000, entered an order finding Rogers permanently and totally disabled and awarding benefits accordingly. Marshall Durbin appealed following the denial of its postjudgment motion.

This case is governed by the 1992 Workers’ Compensation Act. This Act provides that an appellate court’s review of the standard of proof and its consideration of other legal issues shall be without a presumption of correctness. § 25—5—81(e)(1), Ala.Code 1975. It further provides that when an appellate court reviews a trial court’s findings of fact, those findings will not be reversed if they are supported by substantial evidence. § 25-5-81(e)(2). Our supreme court “has defined the term ‘substantial evidence,’ as it is used in § 12-21-12(d), to mean ‘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 (Ala.1996), quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). This court has also concluded: “The new 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).

[122]*122Rogers was employed at Marshall Dur-bin as an “ice crusher.” Rogers’s duties included directing blocks of ice into a grate that leads to an ice-crushing mechanism. On October 27, 1997, Rogers got his foot caught in a grate; the mishap caused him to twist his back and fall to the floor, striking his back and ribs on another grate. Rogers was first treated for his back injury by Dr. W.E. Birdsong. Rogers complained of “pain in his lower back radiating out into his hips.” Dr. Birdsong diagnosed Rogers with low-back strain and prescribed bed rest and medication. Rogers returned to Dr. Birdsong on October 31, 1997, with continued complaints of pain in his lower back. Rogers informed Dr. Birdsong that he had fallen twice at home because of the problem with his back. Dr. Birdsong continued to diagnose Rogers with a low-back strain and referred him to Dr. Erich Wouters, an orthopedic surgeon, for an MRI.

Rogers was first seen by Dr. Wouters on November 3, 1997. Dr. Wouters noted, upon examination, that Rogers had para-spinal tenderness with limited lumbar motion. Rogers returned to Dr. Wouters on November 6, 1997, with continued complaints of back pain radiating into his hips and into his groin. Dr. Wouters ordered an MRI, which revealed a significant disc herniation at the left L4-5 level. Dr. Wouters referred Rogers to Dr. Carter Harsh, a neurosurgeon, for further evaluation and possible surgical intervention.

Rogers was first seen by Dr. Harsh on November 13, 1997. Dr. Harsh’s physical examination of Rogers indicated that he had lumbar tenderness with diminished pinprick sensitivity in his left foot. Dr. Harsh noted that Rogers’s symptoms were greater in his left leg than in his right leg. After reviewing the previous MRI, Dr. Harsh concluded that Rogers had a ruptured disc at the central left L4-5 level and recommended surgery. Dr. Harsh performed surgery on Rogers on December 12, 1997, in order to repair the ruptured disc.

Rogers initially improved following surgery; however, he returned to Dr. Harsh on January 15, 1998, with significant and worsening complaints of pain in the low back radiating into the left hip and leg. A second MRI revealed a recurrent disc rupture at the left L4-5 level. Dr. Harsh performed a second surgery on Rogers on March 3,1998, to repair the recurrent disc rupture.

Rogers returned to Dr. Harsh following the second surgery, and Dr. Harsh noted that although Rogers still had some back and leg symptoms he was showing overall improvement. Dr. Harsh prescribed some medication and a home exercise activity for Rogers. On April 13, 1998, Dr. Harsh released Rogers to return to light-duty work with restrictions that he lift no more than 15 pounds, alternate between sitting and standing every 30 minutes, and avoid low-back extension and flexion. However, Rogers did not return to work at that time.

Rogers returned to Dr. Harsh on April 23, 1998, and told him that he had been doing well until he “tripped on a rock and fell sideways” while walking. Rogers complained of acute recurrent pain in his lower back that radiated into his left leg. Dr. Harsh continued Rogers on some medication and the home exercise program. Rogers returned to Dr. Harsh on May 21, 1998, and informed him that he had been incarcerated in the local jail for fighting with his wife. Rogers related to Dr. Harsh that while incarcerated he was required to lift a mattress weighing approximately 15 pounds and that he had experienced a worsening of Ms low-back and left-leg pain since that time. Dr. Harsh con-[123]*123timed Rogers on the medication and home exercise program.

Rogers returned to Dr. Harsh on June 11, 1998, stating that his pain had improved, although it was not totally resolved, and requested that he be released to return to work at full duty. Dr. Harsh determined that Rogers had reached maximum medical improvement at that time and released him to return to work at full duty. Dr. Harsh assigned Rogers a 7% impairment rating as to the first surgery and a 6% impairment rating as to the second surgery.

Rogers returned to his job as an ice crusher, but was unable to perform the duties of that job; he was transferred to a job in the “further processing area.” This job required Rogers to wipe down “drip pans,” which were located overhead, with a mop. Rogers was unable to perform this job because of the overhead stretching involved. Rogers was next transferred to a job in the “lug room.” This job required Rogers to load “lugs,”1 which weighed approximately five pounds, into a washer to be washed and then to stack them after they had been washed.

Lloyd Boshell, the superintendent over shipping at Marshall Durbin, testified that he had observed Rogers working in the “lug room” without apparent difficulty. He also stated that Rogers had never complained to him that he was unable to perform the job duties in the “lug room.” However, Rogers testified that he was unable to perform this job because on this job he was required to pull the “floor jack,” on which the pallets containing the “lugs” were placed, and that he had informed Boshell of this fact.

Rogers did not return to work at Marshall Durbin after June 26, 1998. Rogers stated that he was unable to get out of bed because of his back problem and that he telephoned to notify the company nurse that he was trying to get an appointment to see Dr. Harsh. Jay Warren, the personnel manager at Marshall Durbin, testified that for three consecutive days Rogers failed to appear at work and failed to call in to report the absence, and that Roger was therefore terminated from his employment at Marshall Durbin on July 2, 1998.

Rogers had returned to Dr. Harsh on June 16, 1998, complaining that he had experienced progressive lower-back pain, left-leg pain, and some right-leg pain approximately one week after returning to work. Following his termination from Marshall Durbin, Rogers returned to Dr.

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Bluebook (online)
825 So. 2d 120, 2001 Ala. Civ. App. LEXIS 213, 2001 WL 527470, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marshall-durbin-food-corp-v-rogers-alacivapp-2001.