Court: Court of Civil Appeals of Alabama; October 22, 2004; Alabama; State Appellate Court
Timothy Wayne Nunn filed a lawsuit against his employer, Fosbel, Inc., on January 18, 2002, seeking workers' compensation benefits for injuries sustained during his employment. Following a trial that concluded on June 13, 2003, the court determined Nunn to be 100% permanently and totally disabled. Fosbel's motion for reconsideration and Nunn's petition for additional medical treatment were both denied on September 16, 2003. Fosbel subsequently appealed, while Nunn cross-appealed. The case was governed by the 1992 Workers' Compensation Act, which stipulates that appellate review of legal issues is conducted without a presumption of correctness, although findings of fact by the trial court will not be overturned if supported by substantial evidence. The term "substantial evidence" is defined as evidence that reasonable, fair-minded individuals could use to infer the existence of the fact in question. Nunn, 32 years old at the time of trial, had a work history primarily in unskilled labor requiring medium to heavy exertion. He began working for Fosbel in April 1996 as a laborer at Gulf State Steel, where he sustained an injury on January 13, 2000, after falling while tightening nuts on a coke oven. Although he reported the injury and finished his shift, he later sought emergency treatment due to ongoing pain. Nunn continued working but experienced persistent back pain, which intensified after an incident on March 28, 2000, when he attempted to lift a 125-pound channel iron. Following this, he began a treatment regimen involving physical therapy.
Nunn experienced pain that hindered his ability to perform his regular job, leading him to sweep floors instead. After completing therapy, he returned to work but struggled to perform as before, requiring assistance from coworkers. On July 5, 2000, he was laid off due to Gulf State Steel's bankruptcy. Following a month of unemployment, Nunn found a job loading trucks, necessitating a doctor's clearance. He consulted neurosurgeon Dr. James White on November 15, 2000, who diagnosed him with nerve-root irritation and ordered a lumbar MRI, revealing a small central herniation at lumbar 5 and showing S1 radiculopathy, indicating nerve injury. Conservative therapies, including epidural steroid injections, were ineffective. By January 24, 2001, Dr. White noted a decreased ankle jerk, suggesting a nerve injury, and recommended surgery, which the workers' compensation carrier approved in June 2001.
After surgery, Nunn achieved maximum medical improvement by August 6, 2001, with a 10% permanent whole-body impairment rating. He returned to Dr. White in May 2002 with severe pain in his back and leg, prompting further imaging tests that were negative. A functional capacity examination (FCE) in 2002 indicated lifting restrictions, but Dr. White noted it did not account for Nunn's severe pain and declared him 100% disabled. Nunn was prescribed Lortab and referred to pain management specialist Dr. Ronald Moon, who began treatment on April 7, 2003. After a second EMG showed no nerve damage, Dr. Moon acknowledged that pain could still exist without nerve-root damage. A second FCE indicated Nunn may have limited his effort due to fear of injury or pain. Dr. Moon conducted a high-resolution infrared imaging test, which indicated abnormal results suggesting pain but with no objective evidence of nerve damage, confirming Nunn's chronic low-back and leg pain.
Dr. Moon assessed Nunn's work capacity as suitable for medium exertion jobs but not heavy exertion, assigning a 10% impairment rating. He noted that while Nunn could lift up to 50 pounds for one-third of the workday, Nunn was unable to perform his previous job duties. This lifting capacity was derived from Nunn's performance in two Functional Capacity Evaluations (FCEs). Dr. Moon prescribed Robaxin and Lortab, acknowledging their potential to cause drowsiness, which Nunn confirmed by describing his experience of feeling lethargic.
Nunn testified about significant lifestyle changes post-injury, including the sale of his boats and an inability to engage in activities like golf or softball, alongside difficulties in completing household tasks, which his father and roommate now handle. His roommate, Joseph Hubbard, corroborated these changes, noting Nunn's disrupted sleep and inability to find comfort. Jo Helen Spalding, a vocational consultant, indicated that Nunn lacked transferable skills and assessed his vocational loss at 65-70%, later determining him 100% vocationally disabled due to pain. However, she did not provide job placement assistance or review Dr. Moon's records.
Dr. Richard Hark, another consultant, evaluated Nunn and suggested a 50-53% vocational loss, citing available local jobs that paid significantly less than Nunn’s previous salary. Nonetheless, he acknowledged that if Dr. White's assessment were considered, he would concur with the conclusion of 100% disability, noting that Nunn's prescribed medications would affect his employability. On appeal, Fosbel contested the absence of substantial evidence for Nunn's total disability, but the court’s findings based on the ore tenus evidence are presumed correct unless shown to be clearly erroneous.
The case of Mutual Sav. Life Ins. Co. v. Hogue establishes the criteria for determining permanent total disability, which hinges on an individual's inability to perform their trade and secure gainful employment. A two-pronged test is used: the employee must be unable to return to their previous trade and incapable of retraining for other gainful employment. Total disability does not equate to complete physical incapacity. When a court finds an employee permanently and totally disabled, it implicitly includes the inability to be retrained for gainful employment. Gainful employment is defined as work that offers similar remuneration to what the employee earned prior to the injury and should be suitable based on the employee's pre-injury occupation, age, education, and aptitude.
The trial court is tasked with assessing the extent of disability based on all evidence, including its own observations, rather than being strictly bound by expert testimony. Subjective complaints of pain may also be taken into account. In evaluating Nunn's case, two Functional Capacity Evaluations (FCEs) and two Electromyography (EMG) tests were considered. Despite a negative second EMG, medical opinions suggested that significant pain could still exist. The first FCE indicated light-duty capability, while the second was cut short due to a self-limiting effort, indicating the patient's fear of re-injury. Vocational experts provided varying opinions on Nunn's disability percentage, with one suggesting a 50-53% vocational disability but acknowledging a 100% disability based on pain complaints.
The trial court's finding of Nunn's 100% permanent total disability was upheld as not being an abuse of discretion. Nunn's cross-appeal concerned the denial of his request for treatment from a new physician for pain management under Ala. Code 1975 § 25-5-77(a). This statute allows an employee dissatisfied with their employer-selected physician to choose a second physician from a provided panel. The underlying principle emphasizes the importance of allowing employees to select their own doctors to foster trust in the doctor-patient relationship.
Achieving optimal rehabilitation standards necessitates that the workers' compensation system maintains oversight of medical services from the injury's onset. Unlimited choice of a physician by the injured employee can lead to suboptimal care if the selected doctor lacks qualifications for the specific case. In Alabama, workers' compensation statutes are liberally interpreted to fulfill their intended purposes.
Dr. White initially referred Nunn to a pain-management specialist, which the insurance provider authorized for a single visit. Subsequent treatments mandated Nunn to see Dr. Moon, located in Birmingham, requiring Nunn to travel from Gadsden, exacerbating his pre-existing back pain due to his disability. Nunn's request for a new physician from a panel of four, as outlined in Ala. Code 25-5-77(a), was denied by Fosbel, despite Nunn’s statutory right to such a choice after expressing dissatisfaction with his current treatment.
The trial court's order denying Nunn a panel of four physicians is reversed, and the case is remanded for the court to ensure Nunn is provided with the appropriate options for his treatment. The appeal is affirmed, while the cross-appeal is reversed and remanded. Judge Pittman concurs with a special note on the irrelevance of the travel distance to the employee's right to request a physician panel. Judge Crawley also concurs.
