Water Works Board of the City of Birmingham v. Allan Isom

Annotate this Case

Download PDF

REL: 08/27/2010 Notice: T h i s o p i n i o n i s s u b j e c t t o f o r m a l r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , A l a b a m a A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , Alabama 36104-3741 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CIVIL APPEALS SPECIAL TERM, 2010 2090413 Water Works Board o f the C i t y o f Birmingham v. A l l a n Isom Appeal from J e f f e r s o n C i r c u i t Court (CV-08-902139) THOMPSON, The Board") Court Presiding Water Judge. Works appeals awarding from Board of the City t h e judgment Allan Isom b e n e f i t s p u r s u a n t t o t h e Alabama o f Birmingham ("the of the Jefferson Circuit permanent-partial-disability Workers' Compensation A c t , § 2090413 25-5-1 set e t s e q . , A l a . C o d e 1975 forth h e r e i n , we Isom 2003, began he was injury"). against in for For the 1 working f o r the Board i n an As a r e s u l t a s e t t l e m e n t agreement payment i n 1990. on-the-job of that the Board pursuant accident accident, to the A c t . between t o Isom On As part the settlement, whole-body On of Isom f i l e d That trial disability July 3, 2008, court the p a r t i e s on Isom a as a result injury"). Act. The denied He Isom filed Board that of another sought filed Isom had action Board's remaining the parties' permanent rating. an a c t i o n against the i n w h i c h he a s s e r t e d t h a t he h a d b e e n i n j u r e d 2006, 2003 provided the 10% 16, concluded that with based assigned an action o f $18,480, i t s judgment June ("the o b l i g a t i o n t o pay f o r Isom's f u t u r e m e d i c a l b e n e f i t s open. reasons affirm. injured a lump-sum ("the A c t " ) . relief on-the-job been a g a i n on J u l y accident ("the a g a i n s t the Board pursuant an a n s w e r Board 4, 2006 to the to the complaint i n which i t injured i n an a c c i d e n t on July 4, N e i t h e r p a r t y c o n t e n d s t h a t t h e A c t does n o t a p p l y i n t h i s c a s e on t h e b a s i s t h a t t h e B o a r d i s an a g e n c y o f a m u n i c i p a l i t y t h a t i s exempted f r o m the A c t by v i r t u e o f § 255 - 1 3 ( b ) , A l a . Code 1975, and t h e r e c o r d d o e s n o t r e f l e c t t h a t t h a t exemption i s a p p l i c a b l e to the Board. 1 2 2090413 2006. of The B o a r d a s s e r t e d , which injury for I s o m was and the that degree 2006 i n j u r y On the August action. crews Isom of shoulder testified a n d t h a t he was i n 2002. he and He several seeing a doctor during that t h a t he could do he compensation resulted from the a bench trial of began he working for the to h i s present as 2003 he a position supervisor leaks, and injury included directing stemmed injured his left had two surgeries therapy as a before h i s shoulder. no problems on surgery, injury He his he without that, shoulder i t with the that testified with left of and an and his 2006 he w a n t e d t o do w i t h 3 shoulder restrictions the from result t h a t , a f t e r the second months anything 2003 held to work w i t h o u t had of the occurred. court duties physical regarding time, have not that the that testified to r e t u r n worked had i n w h i c h he underwent released had would to injury field. that testified limited l o c a t i n g water i n the testified Isom was promoted His valves, worked 2003 i n j u r y . was that t h i n g s , that the a continuation 2009, the t r i a l automobile accident neck. was recovery injury 26, water that Isom's Isom supervisor operating complaining i f the 2003 i n j u r y B o a r d i n 1990 of among o t h e r and regard 2090413 to his job. recovered surgery He testified and h e a l e d related At t r i a l , from to that that he t h e 2003 injury on Isom's indicated that Isom among left shoulder had been other extending biceps The began into the treating neck, ordered on diagnosed things, a the o r i g i n records Isom August with a 28, left-shoulder impingement. "very large degeneration The s u r g e r y type II indicated that 2004. A Dr. D a n i e l medical labral Michael record 26, 2004, a p p o i n t m e n t w i t h D r . M i c h a e l MRI of note indicated neck pain w i t h radiating Isom's o f Isom's A medical Michael 2003, o f t h e MGHL a n d i n v o l v i n g t h e in April occasionally an second Adkison that neck. cervical from to h i s elbow. Isom's MRI shoulder Dr. Michael revealed some spine. May Dr. Michael an e p i d u r a l b l o c k . 4 The from indicated t h a t I s o m was e x p e r i e n c i n g c o n t i n u e d p a i n i n h i s l e f t and had anchor." medical Isom's A p r i l after he a surgery that Dr. David s u p e r i o r l a b r a l t e a r and s u b a c r o m i a l entire though injury. The r e p o r t f r o m performed tear as Isom i n t r o d u c e d m e d i c a l r e c o r d s r e l a t i n g t o t h e 2003 i n j u r y . revealed, felt 5, 2 0 0 4 , decided A medical visit with Dr. to treat note Isom's dated June 2090413 2, a 2004, indicated that few days medical pain from note h i s neck from July had v i r t u a l l y experience popping Isom's pain pain resolved shoulder was some from other tear ordered reduced A medical Isom was problem with Isom's January from 3, 2005, to increasing an MRI f o r was surgery or having whether that had no e v i d e n c e o f to the labrum. stiffness 20, 2004, and left Dr. shoulder, epidural revealed block. indicated experience pain in his left determined that he should A that he shoulder undergo 5 a indicated irritation or b u r s i t i s . medical was second record continuing and t h a t that in his t h a t he m i g h t some r e c u r r i n g t e n d i n i t i s another an h i s shoulder f o r Isom's December A p h y s i c a l examination given neck pain. record been e x p e r i e n c i n g Isom's ordered T h a t MRI r e v e a l e d A continuing with 2003 block. h i s rotator cuff an e p i d u r a l b l o c k experiencing shoulder. was whether was i n t h e r o t a t o r c u f f o r any i n j u r y Michael which he shoulder the August been p r e v i o u s l y o v e r l o o k e d . a indicated that Dr. Michael to determine relief for the epidural but that in his left healing significant from 14, 2004, i n the shoulder. difficulty there Isom o b t a i n e d have He from to Dr. Michael surgery on h i s 2090413 shoulder could t o remove s c a r have been On that 21, on I s o m ' s surgery glenoid, that causing January surgery t i s s u e from the previous Isom's 2005, left that that occasional A medical A Isom's soreness note procedures medical May 4, time [ I s o m ] has t r o u b l e w i t h i t . " Dr. M i c h a e l He a s s i g n e d 10% body the as activities were 10, indicated 2005, restrictions 12, 2005, bothering Michael 2005, Isom a unrestricted. as o f t h a t indicated him very second determined during reattached to cause April 6, 2005, except better f o r some h i s arm o v e r indicated that h i s chest. "[t]he only i s when he o v e r does the second and Isom was surgery indicated Isom's left record had been r a t i n g of that record released A medical to the performed from A medical day. that a a medical-impairment whole that were the shoulder indicated that successful. to was w h e n he c r o s s e d from not note shoulder performed I t was had that difficulty. Michael labrum and c o r r e c t i v e indicated Dr. shoulder. the reattachment. shoulder surgery Isom's from from from shoulder August a l l work October was not much a n d t h a t I s o m w o u l d f o l l o w up w i t h D r . o n an a s - n e e d e d b a s i s . 6 2090413 Isom injury made closed. was testified that, the basis on July of the present Isom t e s t i f i e d that 200 6, t h e day o f h i s action, he was o n c a l l the Board that that, operating a 12-inch water valve He t e s t i f i e d a t the time that the valve was o l d , h a v i n g that, felt a tearing pain He s t a t e d Isom testified supervisor, shoulder although injury told he procedure that to h i s shoulder Allen called about Dr. M i c h a e l , Isom f o r t h e 2003 i n j u r y . 7 he i n h i s neck. Adams, that a workplace he d i d n o t i n f o r m Isom testified his he h a d h u r t h i s Isom t e s t i f i e d f o r reporting the i n j u r y . because the valve, pain him that was a new o n e . He Bruce Adams Isom s t a t e d Herb A l l e n , t h e B o a r d ' s d i r e c t e d him to contact treated he employee. t h a t went t o h i s l e f t experienced day and t o l d admitted him to c a l l inform he a l s o d a y , he was 1921. shoulder a n d how he h a d d o n e s o . appropriate before mains. to operate employee were p u l l i n g that the next that another Board was d i f f i c u l t i nhisleft that with installed a s he a n d t h e o t h e r elbow. the been he was i n j u r e d was d a y , a n d he c a l l e d i n t o work because of m u l t i p l e broken water He s t a t e d it 4, this injury, that that the Adams safety officer, testified that the second doctor was and Allen who h a d 2090413 A medical returned record dated t o Dr. M i c h a e l shoulder. Dr. with gave and r e s t r i c t e d activity 12, 2006, i n d i c a t e d t h a t complaining Michael shoulder July Isom of soreness a his left arm and left in his left steroid him from heavy l i f t i n g Isom shot and shoulder. i n the strenuous A medical r e c o r d f r o m A u g u s t 7, 2 0 0 6 , i n d i c a t e d t h a t I s o m was c o n t i n u i n g to experience steroid shot. indicated left pain that A and medical I s o m was shoulder. that The Dr. record Michael dated ordered September continuing to experience record another 20, pain 2006, inhis states: "Up u n t i l he t u r n e d t h e l a r g e v a l v e e a r l i e r this year he stated that h i s shoulder had gotten completely well and he was basically doing e v e r y t h i n g t h a t he w a n t e d t o . Since i t i s not responding a n d he i s a c t i n g t h e same way he d i d b e f o r e we d i d h i s l a s t s u r g e r y I w o u l d be w o r r i e d t h a t t h e l a b r a l r e p a i r might have been d i s r u p t e d . " The n o t e also related t h a t I s o m was d e v e l o p i n g c u b i t a l symptoms in his left elbow. Isom's shoulder. tendon repair The MRI Dr. M i c h a e l revealed a p p e a r [ e d ] t o be that intact ordered tunnel a n MRI the " r o t a t o r with no evidence of cuff of recurrence." On surgery November 10, on left Isom's 2006, Dr. shoulder. 8 Michael performed another B a s e d on t h e s u r g e r y , Dr. 2090413 Michael noted Isom had "SLAP" the He w r o t e : " [ I s o m ] p r e v i o u s l y had and with repair." Isom's was t e n d o n and a of ago biceps that a recent left cervical had an shoulder was pain 21, 2007, experience neck pain, for Isom's his years this apparently neck. indicated Dr. neck, as insertion tear. i m p r o v i n g but Dr. that Michael well retore Michael Isom that that A medical was treatment he ordered for a note continuing ordered another as that 2007, i n d i c a t e d f o r Isom's n e c k p a i n . and the anterior labral progressively in at a labral repair several injury epidural block March block he A m e d i c a l n o t e f r o m J a n u a r y 24, experiencing from that lesion to epidural his left elbow. The medical records treating have in June in his left pain medical Powell he Isom note ordered an a 10% impairment October dated believed assigned i n d i c a t e t h a t Dr. 23, of 2007 and that Isom was shoulder and neck at September I s o m t o be impairment 10, 2007, whole 2007, began continuing that indicated to time. A that Dr. a t maximum m e d i c a l i m p r o v e m e n t , and rating. was impairment of the the Thomas P o w e l l Upon left person. appointment with 9 A evaluation, upper e x t r e m i t y medical Dr. note Powell Isom and from a 6% Isom's indicated that 2090413 Dr. Powell agreed indicated Powell pain that would with I s o m was see medication Isom for Isom t e s t i f i e d in October those impairment able on an to return as-needed 2007, Dr. Powell for his left received treatment other doctors Powell. Isom t e s t i f i e d his elbow left injury, he testified his he before has t h a t he the continued 2006 to n e c k as w e l l . He testified have those cross-examination, ongoing pain problems Isom i n O c t o b e r 2005. his Dr. return to t h a t he had elbow, and with Dr. problems with left his visit last not had any injury but that, problems neck the that with the Isom t e s t i f i e d and his 10 left that i t . He and left arm the 2006 injury, However, he had 2003 i n j u r y , until since his that, before admitted Powell to problems. i n h i s neck since with had him ongoing problems with took a n a r c o t i c pain medication Michael that prescribed shoulder, have had not He note testified He since he did that basis. released not any w o r k and t h a t , a f t e r h i s l a s t v i s i t w i t h Dr. restrictions. from to The Isom. f u l l - d u t y work without neck ratings. last on experienced f o r which t i m e he he saw Dr. t h a t , because of the shoulder, he had 2090413 difficulty such as sleeping at n i g h t c u t t i n g the grass Herb A l l e n , the under the to report being his sustained recall was a new injury. be Board Powell. not that to tear had "had not," that he into any was degree related d i d not of to he had acute would that just occurred." d i d not he that s t a t e d t h a t he 2006, r e g a r d i n g Isom, w i t h t o be honest, evidence Powell medical the tear, 2003 He the had did the not 2006 whom he t o be had a hard of deposition testified Dr. t h a t he certainty injury to Powell 11 could whether or stated that whether i t "would Dr. recall Isom b e g i n t r e a t i n g Isom u n t i l symptomatic think he employee. t h e November 2006 s u r g e r y . an the 2006, found years, a dependable offered i n j u r y b e c a u s e he had 18 that 24, J u l y 5, In h i s d e p o s i t i o n , Dr. state labral on of that, follow i n j u r y , and preceding worker, testified injury him worked f o r the The officer, tire. 2006 October shoulder to safety a flat Allen testified Allen testified and changing c o r r e c t p r o c e d u r e f o r Isom t o before Isom c o n t a c t i n g doing p a r t i c u l a r a c t i v i t i e s , Isom's r e p o r t i n g the injury. informed or Board's circumstances, to h i s s u p e r v i s o r and be the 2006 a f t e r Isom i f Isom had retear or i t was a related to testified the that an the event 2006 2090413 injury "appear[ed] Michael's appeared records that and assuming those was 4, 2 0 0 6 , A letter what he from Dr. M i c h a e l 2 0 0 9 , was made a n e x h i b i t that letter, Dr. M i c h a e l a n d t h a t , b a s e d on D r . r e c o r d s were c o r r e c t , i t treating t o by t h e J u l y contributed 28, t o b e a new i n j u r y " Isom f o r was or accident. t o Isom's counsel t o Dr. P o w e l l ' s wrote, caused dated April deposition. In i n pertinent part: "It appears that between [Isom's] last two s u r g e r i e s , t h e r e was a p e r i o d o f t i m e w h e r e he was symptom-free i n regard t o the l e f t shoulder. It a p p e a r s t h a t he was b a c k [ t o ] f u l l d u t y w i t h no r e s t r i c t i o n s a n d no l i m i t a t i o n s i n r e g a r d s t o h a v i n g had t h e two p r o c e d u r e s d o n e , one b y D r . A d k i s o n a n d t h e o t h e r b y me. On o r a r o u n d J u l y 4, 2 0 0 6 , t h e r e a p p e a r e d t o b e a new i n j u r y w h i l e t u r n i n g a l a r g e valve. This injury subsequently l e d to further s u r g e r y o n t h e same s h o u l d e r w h e r e t h e r e was i n j u r y t o t h e a r e a w h e r e he h a d t h e p r e v i o u s t w o s u r g e r i e s . I n r e v i e w i n g t h e r e c o r d s , i t i s my o p i n i o n t h a t t h e i n c i d e n t on o r a r o u n d J u l y 4, 2 0 0 6 , was a new i n j u r y e v e n t h o u g h [ i t ] was i n t h e same a r e a w h e r e he h a d some s u r g i c a l r e p a i r o f a t o r n l a b r u m w i t h t h a t p e r i o d o f t i m e w h e r e he was s y m p t o m - f r e e . I feel [ t h a t ] h i s i n j u r y had h e a l e d and t h e i n j u r y i n J u l y 2 0 0 6 c r e a t e d a new i n j u r y t o t h e o l d a r e a o f t h e shoulder." On December judgment. duties arose 17, 2009, The t r i a l at the time the t r i a l court found of this court a final t h a t I s o m "was p e r f o r m i n g h i s traumatic injury," out o f h i s employment w i t h t h e Board, 12 entered that the injury and t h a t t h e B o a r d 2090413 had been g i v e n t i m e l y found that, left as elbow, 12.5% of a result and the notice of of the injury had suffered his left awarded b e n e f i t s pursuant Isom $9,459.48 payments. The as court taxed and i t ordered the Board the f o r Isom's l e f t that The awarded Act. this That loss he trial Isom t o be The the shoulder, of at was due least to be c o u r t awarded weekly action to permanent190 weeks. the Board, responsible for future shoulder, l e f t elbow, and medical neck. On c o u r t amended t h e amount o f c o s t s Board appeals. S e c t i o n 2 5 - 5 - 8 1 ( e ) , A l a . Code 1975, by w h i c h a court permanent-partial-disability c o s t s of December 21, 2009, t h e t r i a l to the Board. trial p a y m e n t s o f $92.74 f o r t h e n e x t trial taxed The to h i s l e f t and to the A c t . court The treatment arm accrued trial partial-disability injury. Isom neck, use of the p r o v i d e s the standard c o u r t reviews appeals i n cases a r i s i n g under section provides: " ( e ) R e v i e w . F r o m an o r d e r o r j u d g m e n t , any a g g r i e v e d p a r t y may, within 42 days thereafter, appeal to the C o u r t of C i v i l Appeals and review s h a l l be as i n c a s e s r e v i e w e d a s f o l l o w s : "(1) In r e v i e w i n g the standard of proof s e t f o r t h h e r e i n and other legal issues, review by the Court of Civil A p p e a l s s h a l l be w i t h o u t a p r e s u m p t i o n o f correctness. 13 the 2090413 "(2) In r e v i e w i n g pure f i n d i n g s of fact, the finding of the c i r c u i t court s h a l l n o t be r e v e r s e d i f t h a t f i n d i n g i s s u p p o r t e d by s u b s t a n t i a l e v i d e n c e . " Discussing Inc. v. this standard, Wallace, 912 this So. 2d court wrote 274, 279 i n Reeves ( A l a . C i v . App. Rubber, 2005): "When t h i s c o u r t r e v i e w s a t r i a l c o u r t ' s f a c t u a l findings i n a workers' compensation case, those f i n d i n g s w i l l n o t be r e v e r s e d i f t h e y a r e s u p p o r t e d by s u b s t a n t i a l e v i d e n c e . § 2 5 - 5 - 8 1 ( e ) ( 2 ) , A l a . Code 1975. Substantial evidence i s 'evidence of such w e i g h t and q u a l i t y t h a t f a i r - m i n d e d p e r s o n s i n t h e e x e r c i s e of i m p a r t i a l judgment can r e a s o n a b l y i n f e r t h e e x i s t e n c e o f t h e f a c t s o u g h t t o be proved.' W e s t v . F o u n d e r s L i f e A s s u r a n c e Co. o f F l o r i d a , 54 7 So. 2 d 8 7 0 , 871 ( A l a . 1989). Further, this court r e v i e w s t h e f a c t s ' i n t h e l i g h t most f a v o r a b l e t o the findings of the t r i a l court.' Whitsett v. B A M S I , I n c . , 652 So. 2d 287 , 290 (Ala. Civ. App. 1 9 9 4 ) , o v e r r u l e d on o t h e r g r o u n d s , Ex p a r t e T r i n i t y Indus., I n c . , 680 So. 2 d 262 ( A l a . 1 996). This court has also concluded: 'The [1992 Workers' Compensation] Act d i d not a l t e r the r u l e t h a t t h i s c o u r t does not weigh the e v i d e n c e b e f o r e the trial court.' E d w a r d s v . J e s s e S t u t t s , I n c . , 655 So. 2 d 1012, 1014 ( A l a . C i v . App. 1995). However, our review as to p u r e l y l e g a l issues i s without a presumption of correctness. See Holy Family C a t h o l i c S c h o o l v . B o l e y , 847 So. 2 d 3 7 1 , 374 ( A l a . Civ. App. 2002) ( c i t i n g § 2 5 - 5 - 8 1 ( e ) ( 1 ) , A l a . Code 1975)." The Board contends that n o t i c e o f t h e 2006 i n j u r y . to h i s s u p e r v i s o r s t h a t he Isom I t argues had did not i t t h a t he m e r e l y hurt his l e f t 14 give adequate indicated shoulder without 2090413 actually relating It argues the 2006 Michael that the 2006 i n j u r y t o a w o r k - r e l a t e d Isom d i d injury until determined not provide October that he 24, had written 2006, notice to day after the experienced incident. another i t of Dr. labral tear. Section 25-5-78, A l a . Code 1975, provides: " F o r p u r p o s e s o f t h i s a r t i c l e o n l y , an i n j u r e d employee or the employee's r e p r e s e n t a t i v e , within f i v e d a y s a f t e r t h e o c c u r r e n c e o f an a c c i d e n t , s h a l l g i v e o r c a u s e t o be g i v e n t o t h e e m p l o y e r w r i t t e n n o t i c e of the a c c i d e n t . I f the n o t i c e i s not given, the employee or the employee's dependent s h a l l not be e n t i t l e d t o p h y s i c i a n ' s o r m e d i c a l f e e s n o r any c o m p e n s a t i o n w h i c h may h a v e a c c r u e d u n d e r t h e t e r m s of t h i s a r t i c l e , u n l e s s i t c a n be s h o w n t h a t the p a r t y r e q u i r e d t o g i v e the n o t i c e had been p r e v e n t e d from doing so by reason of physical or mental i n c a p a c i t y , other than m i n o r i t y , f r a u d or d e c e i t , or equal good reason. Notwithstanding any other p r o v i s i o n o f t h i s s e c t i o n , no c o m p e n s a t i o n s h a l l be payable unless w r i t t e n notice i s given within 90 days a f t e r the o c c u r r e n c e of the a c c i d e n t or, i f d e a t h r e s u l t s , w i t h i n 90 d a y s a f t e r t h e d e a t h . " Although court has § 25-5-78 speaks in terms of written notice, written: "The p u r p o s e o f w r i t t e n n o t i c e i s t o a d v i s e the employer that the employee r e c e i v e d a specified injury, i n the course of his employment, at a s p e c i f i e d t i m e , a n d a t a s p e c i f i e d p l a c e , so that the e m p l o y e r may verify the i n j u r y by its own investigation. James v. H o r n a d y T r u c k L i n e , Inc., 601 So. 2d 1059 ( A l a . C i v . App. 1992 ) . Written n o t i c e i s n o t r e q u i r e d w h e r e i t i s shown t h a t the 15 this 2090413 employer had a c t u a l n o t i c e of the i n j u r y . James. Oral notice i s sufficient to give the employer actual notice. James. Like written notice, oral n o t i c e imparts to the employer the opportunity to i n v e s t i g a t e and p r o t e c t i t s e l f a g a i n s t s i m u l a t e d and exaggerated claims. I n t e r n a t i o n a l Paper Co. v . M u r r a y , 490 S o . 2 d 1228 ( A l a . C i v . A p p . ) , r e m a n d e d on o t h e r g r o u n d s , 490 S o . 2 d 1230 ( A l a . 1 9 8 4 ) . Even with oral notification, the employer must be n o t i f i e d t h a t t h e e m p l o y e e was i n j u r e d w h i l e i n t h e scope of h i s employment. James. The f a c t t h a t a n e m p l o y e r i s aware t h a t t h e employee s u f f e r s from a malady or has m e d i c a l problems i s n o t , by i t s e l f , sufficient to charge the employer with actual notice. R u s s e l l C o a l C o . v . W i l l i a m s , 550 S o . 2 d 1007 ( A l a . C i v . App. 1989). K n o w l e d g e on t h e p a r t of a s u p e r v i s o r y or representative agent of the employer that a work-related i n j u r y has occurred w i l l g e n e r a l l y be i m p u t e d t o t h e e m p l o y e r . Beatrice F o o d s C o . v . C l e m o n s , 54 A l a . A p p . 1 5 0 , 306 S o . 2 d 18 ( A l a . C i v . A p p . 1 9 7 5 ) . " Wal-Mart Civ. App. The Bruce Stores, Board We had to insufficient work 1148, argues that, i n the present h i s supervisor, shoulder. injury 650 S o . 2 d 9 0 6 , 908 ( A l a . 1994). Adams, said I n c . v. E l l i o t t , agree w i t h Adams, causing the pain f o r the Board. that the Board that, that to provide only 1155 ( A l a . C i v . App. 2003) 16 Corp. Isom told hurt had his was a l l I s o m would have t h e knowledge i n Isom's s h o u l d e r See P r e m d o r he i f that information the Board with case, been that the was r e l a t e d t o h i s v. Jones, 880 S o . 2 d (worker's o r a l statement that 2090413 she had hurt her her b a c k was back without not sufficient work r e l a t e d ) . i n d i c a t i o n of However, the Both t h a t he had and Herb that Isom's Isom indicated the In proper testimony our view, support Allen, the Isom's trial the informing he was and hurt he to hurt officer, 2006 i n j u r y report testimony conclusion shoulder. the to was that his Isom injury w o r k he performing agree that adequate The it the the awarded Act injury f o u n d by under also Isom based impairment was the Board. As Board demonstrated that notice Board f o r the the was injury. had to his sufficient r e l a t e d to a result, Isom f a i l e d we to rating less trial 2006 Dr. than that the injury Powell the court the cannot provide Act. contends the to provided trial court erred permanent-partial-disability benefits on was sufficient information i t that Isom safety Board's follow was his 2006 i n j u r y and was hurt indicated that adequate n o t i c e to the Board of the apprise had his shoulder; had Adams o f Allen's court's at t r i a l had t o l d Adams how procedure she n o t i c e to employer that i n j u r y I s o m t o l d Adams m o r e t h a n t h a t he testified how when assigned 10% i n the 17 to whole-body the Isom 6% for when under whole-body the impairment 2005 j u d g m e n t i t e n t e r e d 2006 rating based 2090413 on t h e 2 0 0 3 i n j u r y . Relying 58, the A l a . Code erred 1975, in failing and payments beyond 2003 his injury impairment that § 25-5-57(a)(4)e. and argues Board to apportion 2003 i n j u r y ] and impairment" on trial that "the Isom's d i s a b i l i t y not entitled because impairment Isom rating had for not the additional as a r e s u l t o f t h e e x p e r i e n c e d an 2006 court i n j u r y ] and t o any t h o s e w h i c h he h a d r e c e i v e d 25-5¬ between [ t h e and h i s a l l e g e d [2006 I s o m was § injury increase over the in 2003 injury. Section 25-5-57(a)(4)e. provides: " I f an e m p l o y e e h a s a p e r m a n e n t d i s a b i l i t y o r h a s previously sustained another i n j u r y than that i n which the employee r e c e i v e d a subsequent permanent i n j u r y by a c c i d e n t , as i s s p e c i f i e d i n t h i s s e c t i o n d e f i n i n g permanent i n j u r y , the employee s h a l l be entitled to compensation only f o r the degree of i n j u r y t h a t would have r e s u l t e d from the latter a c c i d e n t i f the e a r l i e r d i s a b i l i t y or i n j u r y had not existed." Section 25-5-58 disability prolonged employer have resulting because shall resulted infirmity provides: not be from of "If from an the degree accident a preexisting injury liable the only f o r the accident existed." 18 had or is or duration of increased or infirmity, the disability the earlier that would injury or 2090413 In F r a n c i s P o w e l l 726, 736 proper (Ala. Civ. a p p l i c a t i o n of E n t e r p r i s e s , I n c . v . A n d r e w s , 21 App. 2009), § 25-5-58, this court So. discussed 3d the writing: "Powell argues that because Andrews had a p r e e x i s t i n g back i n j u r y w i t h s p o n d y l o l i s t h e s i s , h i s r i g h t to recover w o r k e r s ' compensation b e n e f i t s f o r t h e N o v e m b e r 3, 2 0 0 3 , o n - t h e - j o b i n j u r y i s l i m i t e d by § 2 5 - 5 - 5 8 , A l a . Code 1975. ... "In a long l i n e of cases b e g i n n i n g w i t h I n g a l l s S h i p b u i l d i n g C o r p . v . C a h e l a , 251 A l a . 1 6 3 , 36 So. 2d 513 (1948) (superseded on other grounds by s t a t u t e , see T i t . 26, § 2 6 2 ( a ) , A l a . Code 1 9 4 0 ) , Alabama a p p e l l a t e c o u r t s have h e l d t h a t ' " t h e term ... i n f i r m i t y i n [§ 2 5 - 5 - 5 8 ] r e f e r [ s ] t o a c o n d i t i o n w h i c h a f f e c t s [ t h e p l a i n t i f f ' s ] a b i l i t y t o w o r k as a n o r m a l man at the time of the a c c i d e n t or which w o u l d p r o b a b l y so a f f e c t h i m w i t h i n t h e c o m p e n s a b l e period."' Ex p a r t e L e w i s , 469 So. 2d 5 9 9 , 601 ( A l a . 1985) ( q u o t i n g C a h e l a , 251 A l a . a t 1 7 3 , 36 So. 2d a t 521). Pursuant to Cahela, "'the law presumes that there is no p r e e x i s t i n g i n j u r y o r i n f i r m i t y when t h e employee i s able to f u l l y p e r f o r m h i s or her j o b d u t i e s i n a n o r m a l manner p r i o r t o the s u b j e c t i n j u r y . [ S e c t i o n 25-5-58] o n l y applies when the previous injury or infirmity has demonstrated itself as d i s a b l i n g and p r e v e n t e d the employee from e a r n i n g wages i n a n o r m a l manner.' "1 T e r r y A. M o o r e , A l a b a m a W o r k e r s ' C o m p e n s a t i o n § 16.25 a t 708-09 (1998) (emphasis added; footnote omitted)." We note that identically to "[§] § 25-5-57(a)(4)e. 25-5-58 so that 19 i f the has been employee construed is working 2090413 normally at the time of the second t h e e m p l o y e e h a d no p r e e x i s t i n g v. PCH Hotels & Resorts, Civ. App. 1083 (citing disability I n c . , 987 the present 2003 i n j u r y case, So. 2d 598, parte work and p e r f o r m a period of Bratton, Isom t e s t i f i e d and h i s r e c o v e r y to testified Ex or i n j u r y . " 604 therefrom, 678 So. Alamo n.1 ( A l a . ( A l a . 1996)). In 2007) a c c i d e n t , the law presumes that, he was 2d 1079, following the able to return h i s j o b f u l l y w i t h o u t any r e s t r i c t i o n s f o r several months before the 2006 injury. He t h a t , d u r i n g t h a t p e r i o d , he e x p e r i e n c e d no p r o b l e m s w i t h h i s l e f t s h o u l d e r a n d t h a t he c o u l d do a n y t h i n g he w a n t e d with trial 2003 regard support injury prevented trial the neither from The medical records testimony in this regard. demonstrated earning submitted Because the itself wages at as disabling in a normal nor manner, the court d i d not e r r i n r e f u s i n g to c o n s i d e r the e f f e c t s 2003 injury this The on trial Isom's impairment following c o u r t ' s j u d g m e n t i s due t o be the of 2006 a f f i r m e d as issue. Finally, the his job. Isom's Isom injury. to to Board relying contends on that the " l a s t - i n j u r i o u s - e x p o s u r e r u l e , " Isom's 20 2006 injury was merely a 2090413 recurrence already o f h i s 2003 i n j u r y compensated him and t h a t , because f o r the 2003 the Board had injury, he was e n t i t l e d t o a n y f u r t h e r c o m p e n s a t i o n b a s e d on t h e 2 0 0 6 The Board points to medical notes indicating i n j u r y was a " r e t e a r " o f t h e s u r g i c a l labrum, The which Board had been also points t h e 2003 torn out rating from injury rating f r o m t h e 2006 i n j u r y . medical evidence undisputedly a recurrence did not sustain compensation that of h i s [2003 he s u s t a i n e d for courts new exceeded injury on J u n e a subsequent medical-impairment that injury Isom and, t h e r e f o r e , entitling him to "[t]he sustained that Isom additional o f t h e same t o r n labrum 13, 2003." the last-injurious-exposure to determine injury. concludes that establishes injury], glenoid h i s medical-impairment The B o a r d f o r t h e same i m p a i r m e n t Generally, by a o f t h e 2003 Isom's injury. t h e 2006 r e p a i r on I s o m ' s as a r e s u l t that that not which of m u l t i p l e sustained by a rule i s utilized employers i s liable worker. "Under the 'last injurious exposure' rule, 'liability f a l l s upon t h e c a r r i e r c o v e r i n g [ t h e ] r i s k a t t h e t i m e o f t h e most r e c e n t i n j u r y bearing a causal r e l a t i o n to the d i s a b i l i t y . ' North River I n s u r a n c e C o . v . P u r s e r , 608 S o . 2 d 137 9, 1382 ( A l a . C i v . App. 1992). The t r i a l c o u r t m u s t d e t e r m i n e whether the second injury i s 'a new i n j u r y , an a g g r a v a t i o n o f a p r i o r i n j u r y , o r a r e c u r r e n c e o f an 21 2090413 old injury; this determination resolves the issue of which i n s u r e r i s l i a b l e . ' Id. "A c o u r t f i n d s a r e c u r r e n c e when ' t h e s e c o n d [ i n j u r y ] does n o t c o n t r i b u t e even s l i g h t l y t o t h e causation of the [ d i s a b i l i t y ] . ' 4 A. L a r s o n , The Law o f W o r k m e n ' s C o m p e n s a t i o n , § 9 5 . 2 3 a t 1 7 - 1 4 2 (1989). ' [ T ] h i s group a l s o i n c l u d e s the k i n d of case i n which a worker has s u f f e r e d a back strain, followed by a period o f work with continuing symptoms indicating that the o r i g i n a l condition persists, and c u l m i n a t i n g i n a second p e r i o d o f d i s a b i l i t y p r e c i p i t a t e d b y some l i f t o r e x e r t i o n . ' 4 A. L a r s o n , § 9 5 . 2 3 a t 1 7 - 1 5 2 . A c o u r t f i n d s an ' a g g r a v a t i o n o f a n i n j u r y ' when t h e ' s e c o n d [ i n j u r y ] contributed independently to the f i n a l d i s a b i l i t y . ' 4 A. L a r s o n , § 95.22 a t 1 7 - 1 4 1 . I f the second i n j u r y i s c h a r a c t e r i z e d as a r e c u r r e n c e o f t h e f i r s t i n j u r y , then the f i r s t i n s u r e r i s r e s p o n s i b l e f o r the medical bills; however, i f the injury i s c o n s i d e r e d an a g g r a v a t i o n o f t h e f i r s t i n j u r y , t h e n i t i s c o n s i d e r e d a new i n j u r y a n d t h e e m p l o y e r a t the time of the a g g r a v a t i n g i n j u r y i s l i a b l e f o r the m e d i c a l b i l l s and d i s a b i l i t y payments. N o r t h R i v e r , supra." United (Ala. States F i d . & Guar. C i v . App. As Michael noted Co. v . S t e p p , 642 S o . 2 d 7 1 2 , 715 1994). above, t o Isom's i n the A p r i l counsel, injury had c o m p l e t e l y injury and t h a t Dr. Michael healed t h e 2006 28, 2009, before injury letter opined Isom was a new from Dr. that t h e 2003 sustained t h e 2006 injury. Although 2 During Dr. Powell's d e p o s i t i o n , the Board objected t o , and moved t o s t r i k e , D r . M i c h a e l ' s l e t t e r . When t h e l e t t e r a p p e a r e d on I s o m ' s p r e t r i a l l i s t o f e x h i b i t s , t h e B o a r d f i l e d an o b j e c t i o n t o t h e l e t t e r . I s o m d i d n o t o f f e r t h e l e t t e r as 2 22 2090413 Dr. Powell medical testified t h a t he c e r t a i n t y whether accident causing injury or until after testified to the 2006 the 2006 the November that i f Isom could Isom's was because 2006 "had s t a t e t o any labral injury injury had not tear surgery, an following related he acute did degree not Dr. to the treat of the 2003 Isom Powell also symptomatic tear, However, a t t h e end o f t h e t r i a l , t h e an e x h i b i t a t t r i a l . B o a r d o f f e r e d Dr. P o w e l l ' s d e p o s i t i o n i n t o e v i d e n c e and d i d n o t move, p u r s u a n t t o R u l e 3 2 ( b ) , A l a . R. C i v . P., t o s t r i k e D r . M i c h a e l ' s l e t t e r as an e x h i b i t t o t h e d e p o s i t i o n . H a v i n g f a i l e d t o make s u c h a m o t i o n and o b t a i n a r u l i n g t h e r e o n f r o m t h e t r i a l c o u r t , t h e l e t t e r became a p a r t o f t h e r e c o r d t h a t t h e t r i a l c o u r t was f r e e t o c o n s i d e r . See G l e n n v. V u l c a n M a t e r i a l s Co., 534 So. 2d 598, 601-02 ( A l a . 1 9 8 8 ) , o v e r r u l e d on o t h e r g r o u n d s , Lowman v. P i e d m o n t E x e c . S h i r t Mfg. Co., 547 So. 2d 90, 95 ( A l a . 1 9 8 9 ) . C f ^ B r y a n t v. S t a t e Farm F i r e & Cas. I n s . Co., 447 So. 2d 181, 184 ( A l a . 1984) ("In c o n c l u s i o n , we add t h a t i n t h e a b s e n c e o f a m o t i o n t o s t r i k e o r e x c l u d e t h e w i t n e s s ' s answer and a r u l i n g by t h e t r i a l c o u r t on t h e m o t i o n , t h e r e i s n o t h i n g f o r t h i s C o u r t t o review."). In apparent r e c o g n i t i o n of i t s o v e r s i g h t i n f a i l i n g to move t h e t r i a l c o u r t t o s t r i k e D r . M i c h a e l ' s l e t t e r as an e x h i b i t to the d e p o s i t i o n t h a t i t o f f e r e d t o the c o u r t , the B o a r d moves t h i s c o u r t t o s t r i k e t h e l e t t e r as an e x h i b i t t o the d e p o s i t i o n of Dr. P o w e l l . F o r r e a s o n s r e q u i r i n g no c i t a t i o n t o law, such a request i s w h o l l y improper at the appellate-court level. Even i f we were n o t t o c o n s i d e r t h e l e t t e r on a p p e a l , h o w e v e r , we c o n c l u d e t h a t t h e o t h e r e v i d e n c e of r e c o r d , d i s c u s s e d h e r e i n , supports the t r i a l court's d e t e r m i n a t i o n t h a t t h e 2006 i n j u r y i s n o t a r e c u r r e n c e o f t h e 2003 i n j u r y b u t , i n s t e a d , i s a new i n j u r y o r an a g g r a v a t i o n o f t h e 2003 i n j u r y . 23 2090413 w h e t h e r i t was a r e t e a r or not," be that related t o an e v e n t 2006 i n j u r y testified he w o u l d t h i n k t h a t had j u s t occurred" " a p p e a r [ e d ] t o b e a new i n j u r y . " that, based on D r . M i c h a e l ' s i t "would and t h a t t h e Dr. Powell records and assuming those records were c o r r e c t , i t a p p e a r e d t h a t what D r . was Isom f o r was caused he described treating accident 2006. that as was r e l e a s e d that, to return after doctor t o work w i t h o u t t o by t h e on July 4, he w a n t e d a n d he t e s t i f i e d healed from that t h e 2003 2005 surgery, he restrictions and t h e 2006 i n j u r y w i t h o u t h i s shoulder. he h a d no p r o b l e m s do a n y t h i n g job, and regarding time, could occurred the January he w o r k e d s e v e r a l m o n t h s b e f o r e that having Michael 3 Isom t e s t i f i e d a or contributed also with He h i s shoulder t o do w i t h he f e l t testified i twith that, seeing during and t h a t regard that he toh i s a s t h o u g h he h a d r e c o v e r e d injury. T h e B o a r d a l s o moves t h i s c o u r t t o s t r i k e t h e p o r t i o n o f Dr. P o w e l l ' s d e p o s i t i o n t e s t i m o n y t h a t was b a s e d on D r . M i c h a e l ' s m e d i c a l r e c o r d s and o p i n i o n s . However, t h e B o a r d , which o f f e r e d Dr. P o w e l l ' s d e p o s i t i o n i n t o evidence, d i d not move t o s t r i k e t h a t p o r t i o n o f D r . P o w e l l ' s t e s t i m o n y i n t h e t r i a l c o u r t , a n d , as a r e s u l t , t h e B o a r d w i l l n o t be h e a r d t o a r g u e on a p p e a l t h a t t h e t r i a l c o u r t ' s j u d g m e n t c a n n o t be s u p p o r t e d by t h a t t e s t i m o n y . See s u p r a n o t e 2. 3 24 2090413 Dr. M i c h a e l ' s m e d i c a l Isom's 2003 records largely indicated performed was injury that h i s shoulder Michael believed months before The trial of the January that the Isom from t h e 2006 evidence, that J u n e 2003 accident shoulder, in his 2005 s u r g e r y , 2005 a l l work considered accident c a u s e d a new i . e . , an Health-Tex, 1999) Isom shoulder, resolved and t h a t Dr. surgery had indicated been that restrictions in i t s totality, almost supports Dr. 11 tear i n Isom's labral left and t h a t evidence shoulder the J u l y tear i n his left the compensable The a b o v e - d i s c u s s e d had h e a l e d resulted 4, from 2006, shoulder or, at i n a r e t e a r i n g of the previous labral aggravation I n c . v. Humphrey, (finding having injury. the l a b r a l the very l e a s t , App. soreness of Those of c o u r t ' s c o n c l u s i o n t h a t t h e 2 0 0 6 i n j u r y was indicates tear, months Isom's records s e p a r a t e l y f r o m t h e 2003 i n j u r y . the on January A d d i t i o n a l medical released three surgery occasional testimony. p a i n had r e s o l v e d or had v i r t u a l l y e i g h t months Michael Isom's within 2005 only within successful. support that, the January experiencing records r e l a t e d to the treatment of the 747 So. 2d that evidence 25 previous tear. 9 0 1 , 905 (Ala. " t h a t [ t h e w o r k e r ] was See Civ. not 2090413 experiencing p r o b l e m s when s h e s e c o n d company, b u t t h a t repetitive-motion first after working f o r the a few months o f p e r f o r m i n g sewing duties the worker's t r e a t i n g the s e c o n d company c o n t r i b u t e d t o h e r s u b s e q u e n t c a r p a l physician's supported subsequent injury rather Moore, Alabama Supp.) ("A trial injury was Workers' injury compensable injury, an " t h a t h e r work when, a f t e r without continuing independently a result, evidence we i s a harmful § change 6:19 court's the her prior 1 Terry (1998 & A. 2009 i n the c o n d i t i o n of and i n d e p e n d e n t of t h e o r i g i n a l e v e n i f l o c a t e d n e a r o r on t h e s i t e o f t h e the employee has resumed ("An aggravation working normally symptoms, a s u b s e q u e n t w o r k - r e l a t e d f i n d no m e r i t supported tunnel that of also worsens the o r i g i n a l compensable mere r e c u r r e n c e trial at See o r i g i n a l c o m p e n s a b l e i n j u r y . " ) ; i d . a t § 6:20 occurs and aggravation of i t ) . pain syndrome," conclusion Compensation the employee t h a t i s d i f f e r e n t tunnel testimony court's than a recurrence new carpal her to experience numbness worker's of she began and syndrome," characteristic started only o f t h e 2003 judgment injury."). i n the Board's contention a finding that injury, i s due t o be 26 that t h e 2006 i n j u r y and, in this affirmed. factor As the was regard, a the 2090413 Based on the foregoing, we conclude c o u r t ' s judgment i s s u p p o r t e d by s u b s t a n t i a l the Board has f a i l e d the court trial court's to demonstrate i n error. a basis Accordingly, we that the e v i d e n c e and t h a t on w h i c h affirm AFFIRMED. Bryan, Thomas, and Moore, J J . , c o n c u r . 27 to hold the judgment. Pittman, trial trial

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.