Mobile Airport Authority v. Etheredge

94 So. 3d 397, 2012 WL 1371398, 2012 Ala. Civ. App. LEXIS 97
CourtCourt of Civil Appeals of Alabama
DecidedApril 20, 2012
Docket2100307
StatusPublished
Cited by3 cases

This text of 94 So. 3d 397 (Mobile Airport Authority v. Etheredge) 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
Mobile Airport Authority v. Etheredge, 94 So. 3d 397, 2012 WL 1371398, 2012 Ala. Civ. App. LEXIS 97 (Ala. Ct. App. 2012).

Opinion

PITTMAN, Judge.

The Mobile Airport Authority (“the employer”) appeals from a judgment awarding Robert Etheredge (“the employee”) permanent-total-disability benefits under the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975 (“the Act”), for injuries to his foot and lower back. We affirm.

[399]*399 Facts and Procedural History

At the time of trial, the employee, a 57-year-old airfield technician at the Mobile Regional Airport, had been working for the employer for more than 20 years. In 2006, his responsibilities included moving heavy equipment, cutting grass, repairing fence lines, and ensuring that the lights on the runway were operational. On March 31, 2006, the employee was injured at work when a 300-pound manhole cover fell on his left foot, fracturing the first metatarsal, the long bone leading to the big toe. It is undisputed that the employee promptly reported the accident; that the employer paid for the employee’s medical treatment; and that, with the exception of 2 periods totaling 13 months during which the employee returned to work, the employer paid temporary-total-disability benefits from March 31, 2006, through June 2009.

The employee was initially treated by Dr. Michael Cockrell, an orthopedic surgeon, who put a cast on the employee’s foot and later provided the employee with a walking boot. The foot fracture healed without complication, and the employee returned to work briefly from May 15, 2006, until June 23, 2006, at which time he returned to Dr. Cockrell, complaining of pain, swelling, and discoloration of his foot. Dr. Cockrell’s partner, Dr. William Park, diagnosed the employee as suffering from reflex sympathetic dystrophy (“RSD”), or complex regional pain syndrome (“CRPS”), and referred him to Dr. Thomas Yearwood, a pain-management specialist, in July 2006.1 Over the course of the next several months, Dr. Yearwood administered three sympathetic nerve blocks and prescribed narcotic pain relievers, which treatments provided only temporary relief to the employee. In October 2006, Dr. Yearwood surgically implanted a dual-electrode intraspinal neurostimulator in the employee’s back. The neurostimulator relieved most of the employee’s pain, and, after undergoing a month-long work-hardening program at the direction of Dr. Park, the employee was able to return to work without restrictions in January 2007.

The employee’s job duties required him to walk at least half a mile every day and to operate a tractor. The employee testified that soon after he had returned to work he had experienced pain in his foot again and had begun to favor his left foot and to walk with a limp. The employee, who had previously been diagnosed with degenerative-disk disease, also experienced lower-back pain that became progressively worse, especially with the bouncing that occurred while he was riding a tractor and mowing grass on the airfield.2 Nevertheless, the employee said that because he had been forbidden, upon pain of immediate dismissal, to take narcotic pain relievers at work, he had worked through the pain. Dr. Yearwood’s office note of August 6, 2007, states:

“[T]he bumping and bouncing associated with heavy equipment does not help [the employee’s] back any, but he is still coping. ' Exam shows bilateral paraspinous muscle spasticity and trigger points throughout the lumbar paraspinous musculature. He does have tender lumbar facets in the L3^i, L4-5, and L5-S1 [400]*400distributions. He also demonstrates some decreased sensation and dysesthe-sias[3] in his left L5-S1 distribution.”

According to the employee, he was mowing grass near a fence on the airfield in December 2007 when the tractor he was riding ran over a hole that had been left unfilled after an old fence post had been removed. The employee testified that the jolt from the tractor accident had caused him to experience a searing pain that, he said, felt like the electrodes of the neuros-timulator had been “ripped out” of his spine.

On January 7, 2008, the employee consulted Dr. Yearwood, whose office note for that day states:

“[Recently while [the employee] was riding a tractor at work he hit a very large bump which caused the stimulator leads to migrate out of the epidural space prohibiting his stimulator [from] providing] any pain control whatsoever. He is being admitted to undergo lead revision and repositioning in order to sustain optimal pain control.”

On January 10, 2008, the employee underwent a surgical procedure to reimplant the neurostimulator device and to reposition the electrodes. The employee never returned to work after that surgery. He continued to complain of pain at the site of the incision, more pain in his lower back, and pain in his foot. He participated in 10 work-hardening sessions in April 2008, and he reported to Dr. Yearwood that those sessions had caused him to experience “increased pain [in his lower back, radiating into his legs,] ... and a lack of tolerance to general conditioning activities.” Dr. Yearwood attempted to discover the neurological source of the employee’s pain, to adjust the stimulator, and to alter the employee’s prescription medications, but nothing provided the employee with lasting relief. Dr. Yearwood referred the employee to a neurologist, Dr. Terry Millette, who performed a nerve-conduction study on June 10, 2008. That study revealed no significant abnormalities. Dr. Millette’s diagnosis was “[a]typical spinal discomfort with unusual history; cannot rule out mechanical lumbar difficulties.” His recommendation was to consider “mechanical assessment of the thoracolumbar spine.”

The employee underwent a functional-capacities evaluation (“FCE”) on September 3, 2008. The FCE placed the employee in the “light physical demand” category. David Dimmick, the exercise physiologist who conducted the FCE, concluded that the employee had put forth good effort and had demonstrated no gross symptom magnification but testified that the employee had scored positive on two of five Waddell symptom-magnification categories, one of which was “an increase in low back pain [after] light palpation and light pinching,” a reaction that, Dimmick acknowledged, could be explained by the employee’s dy-sesthesia, a condition of which Dimmick had been unaware during the FCE.

On November 7, 2008, Dr. Yearwood performed a provocative diskography of the employee’s lumbar spine. That diagnostic test demonstrated “rather severe disk derangements at L3, L4, and L5, with a developing degenerative pattern in the L2 disk.” Dr. Yearwood concluded:

“The work-related tractor accident has accelerated the degenerative disk disease and pain in [the employee], suggesting an end-plate compromise at more than one level. The axial loading needed to dislodge the implanted neu-rostimulator system is seen to have been sufficient to create vertebral column pa[401]*401thology of a traumatic nature as well, and explains quite a lot of the [employee’s] symptoms, which heretofore seemed to be somewhat inconsistent.”

In deposition testimony, Dr. Yearwood concluded that the employee’s altered gait that resulted from the 2006 foot injury and the traumatic jolt of the 2007 tractor accident had combined to aggravate or accelerate the employee’s preexisting degenerative-disk disease.

At the request of Millennium Risk Managers (“MRM”), the third-party administrator of the employer’s workers’ compensation carrier, Dr.

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Bluebook (online)
94 So. 3d 397, 2012 WL 1371398, 2012 Ala. Civ. App. LEXIS 97, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mobile-airport-authority-v-etheredge-alacivapp-2012.