Court: Court of Civil Appeals of Alabama; February 27, 1997; Alabama; State Appellate Court
Claimant Betty M. Lowe, a public safety dispatcher for the City of Bayou La Batre, suffered a fall at work on September 13, 1991, injuring her neck and leading to subsequent medical issues. Following the incident, she sought treatment at Mos-tellar Medical Center and continued working for a week, but was unable to work for several weeks afterward, returning part-time in December 1991. At the time of the fall, Lowe was 57 years old and her average weekly wage was $283.59. She received temporary total disability benefits of $189.07 until reaching maximum medical improvement, and the City covered all her medical expenses prior to the trial.
The trial, held on May 6, 1996, included testimony from several medical professionals. Dr. Edmund Dyas, an orthopaedist, began treating her for neck and shoulder pain shortly after the fall and noted previous neck issues in 1988. An MRI showed degenerative disc changes but no herniation. Dr. Dyas declared her unable to work due to pain and stress, performed surgery on her left thumb, and assessed a 10% disability related to her spinal injuries. He indicated in a letter that Lowe was permanently and totally disabled due to a combination of her physical conditions and chronic anxiety, exacerbated by the fall.
Dr. Curtis Graf, a neurologist, found Lowe neurologically normal and attributed her degenerative disc changes to wear and tear, assigning a 5% permanent disability rating and suggesting she could return to light part-time work. Dr. Donald Mulkerne, a counselor, concluded that psychologically, Lowe could work. Dr. Russel Hudgens, a neurosurgeon, noted that the fall aggravated her degenerative issues and assessed a 5-10% permanent partial disability. Lastly, vocational rehabilitation counselor Douglas Miller evaluated Lowe's employability, determining she could only engage in non-stressful, light sedentary work, resulting in a loss of access to 95% of her previous job opportunities.
Lowe's potential employment earnings were assessed at minimum wage, resulting in a 42% loss of earning capacity compared to her previous salary. Miller rated her vocational disability at 68%. Lowe testified that neck and shoulder pain hindered her ability to perform her previous job, which involved sitting, leaning over a desk, and phone communication. Although she had pre-existing arthritis, it had not previously affected her work. Post-fall, she reported an inability to handle stress, which was exacerbated in her job, though she could manage errands without stress. The trial court determined Lowe had a 5% permanent partial disability and a related reduction in earning capacity, awarding her workers’ compensation under Alabama Code § 25-5-57(a)(3)g. Lowe appealed this decision, particularly disputing the trial court's finding that she had received all entitled temporary total disability benefits. Her counsel argued that the City’s payments were based solely on her salary, excluding additional fringe benefits of $68.32 per week for retirement and insurance. The trial court calculated her total weekly wage at $351.91, while it was noted that she received $189.07 weekly in temporary total disability benefits, which represented 66 2/3% of her calculated wage. Alabama law stipulates that any allowances made in lieu of wages are considered part of an employee's earnings, and prior court rulings support including such benefits in wage computations, with no evidence suggesting the fringe benefits were gratuitous or unrelated to her wage contract.
Temporary total benefits for Lowe should be calculated based on her average weekly wage, inclusive of fringe benefits, as per § 25-5-1(6). This section mandates that average weekly earnings comprise earnings subject to federal taxation, including voluntary contributions to retirement and cafeteria plans, and fringe benefits, unless the employer continues these benefits during the compensation period. The City maintained Lowe's benefits until February 1992 but transitioned her health insurance to COBRA without covering the premiums. Consequently, Lowe is not entitled to temporary total benefits for the period when benefits were provided, yet the trial court's finding that she received all due temporary total benefits is unsupported by evidence. The trial court must reassess the duration of unpaid fringe benefits and adjust her compensation accordingly.
Lowe contests the trial court's determination of a 5% loss of earning capacity, arguing it conflates disability with earning capacity and overlooks evidence of her total disability. The court's definition of total disability excludes absolute helplessness and emphasizes the inability to perform one's trade. The trial court must consider various factors—such as education, age, experience, training, and overall health—when evaluating earning capacity loss. Lowe's permanent injury does not fall under a scheduled member, necessitating compensation calculations according to § 25-5-57(a)(3)g, which stipulates compensation as 66 2/3% of the difference between her pre-injury earnings and her earnings in a partially disabled state.
A court ruling established that compensation awards must reflect a worker's lost earning ability rather than merely their physical disability. In the case of Smither v. International Paper Co., the court found that the trial court erred by equating physical disability with lost earning capacity. In a related case, three of Lowe’s physicians rated her physical disability between 5% and 10%, but a vocational expert testified that her actual loss of earning ability was significantly higher, and this testimony was uncontested. The court determined that there was no legal evidence to support the trial court's finding of only a 5% loss in earning capacity, nor could any reasonable interpretation of the evidence uphold that judgment. Consequently, the portion of the trial court's ruling regarding Lowe’s lost earning capacity was reversed, and the case was remanded for a proper assessment of her lost earning capacity. Judges Yates and Crawley concurred, while Judge Thompson dissented.
