Bidermann Industries Corp. v. Peterson, 655 So.2d 997 (Ala.Civ.App. 1994)

655 So.2d 997 (1994)



Court of Civil Appeals of Alabama.

June 24, 1994.Rehearing Denied July 15, 1994.Certiorari Denied February 3, 1995.

998*998 Jack Livingston of Livingston, Porter & Paulk, Scottsboro, for appellant.

Donald R. Rhea of Rhea, Boyd & Rhea, Gadsden, for appellee.

Alabama Supreme Court 1931489.

L. CHARLES WRIGHT, Retired Appellate Judge.

Althea Peterson filed a complaint for workmen's compensation benefits in the Circuit Court of Marshall County against Bidermann Industries Corporation, alleging that she was owed benefits for a work-related "occupational disease/accident." Following oral proceedings, the trial court entered an order, finding Peterson to be totally and permanently disabled. Bidermann appeals.

The record reflects, in pertinent part, the following: At the time of the hearing, Peterson was 40 years of age and had been employed by Bidermann in its Arrow Shirt plant for approximately 20 years. She worked as a seamstress, sewing on shirt sleeves and bindings for shirt sleeves.

In the late 1970s and early 1980s, she began to experience problems with her hands breaking out. Peterson was treated for the condition off and on for a number of years. Peterson described her condition as her "hands would swell up and burst open," especially in the palms, causing significant pain and itching. She encountered problems with her arms, her feet, and her face breaking out. During the last two years that she worked, she described the condition as being one that if she would stay away from work for a period of time, her hands would clear up, but when she would return to work, they would break out again. Due to the severity of her condition, she stopped working for Bidermann in September 1991.

Peterson had been treated by a number of physicians for her condition. The depositions of two of her treating physicians were admitted at trial.

Peterson began seeing Dr. David Loveman, a dermatologist, in 1975. Dr. Loveman diagnosed Peterson's condition as pustular psoriasis, an autoimmune disease. In response to the question as to whether Peterson's condition was caused by her employment, Dr. Loveman stated, "No. It wouldn't be the root cause. It might aggravate the condition." Peterson has not seen Dr. Loveman since 1984.

Peterson began seeing Dr. Eric Baum, a dermatologist, in 1988. He diagnosed Peterson's condition as allergic contact dermatitis. In deposition, Dr. Baum opined that her condition was aggravated by allergens or substances that she came in contact with at work. His opinion was based on "the empirical evidence that every time she would get better and I would let her go back to work, she would come back broken out again." He further stated that his conclusion was based on his ten years' experience in treating industrial dermatitis for workmen's compensation purposes. With respect to a prognosis, Dr. Baum indicated that she will never have a cure and that she will continue to break out when she comes into contact with chemicals or substances that irritate her hands.

Dr. Emily Omura, a dermatologist, evaluated Peterson at the request of Bidermann. Dr. Omura described Peterson's condition as being a chronic, ongoing dermatitis. It was her opinion, based on the history provided to her by Peterson, that Peterson's skin condition could possibly be related to something in her work environment. Dr. Omura acknowledged that if a person is exposed to chemicals to which he is allergic or is continuously re-exposed to said chemicals over a period of years, that person could tend to have a more or less chronic condition as a result of the initial exposure and the subsequent re-exposures.

The written opinion of Claude Peacock, Peterson's vocational expert, was admitted into evidence. Mr. Peacock offered the concluding opinion that Peterson was 100% vocationally disabled due to the severity of her hand condition. He was of the opinion that the severity of the condition, and its numerous re-occurrences, would prevent Peterson from engaging in competitive activity.

Dr. Emily DeGusto, Bidermann's vocational expert, was of the opinion that Peterson suffered a 12% vocational disability.

In finding Peterson to be totally and permanently disabled, the trial court found the following:

999*999 "2. The evidence in this case is largely undisputed. The plaintiff worked for the defendant nearly 20 years in the defendant and its predecessor's shirt factory known as the Arrow Shirt Plant in Albertville, Alabama. On a daily basis she handled new shirt material and sewed the same. Over the last several years of her employment she began to suffer episodes where her hands, arms and feet were breaking out which gradually increased to the point where her skin was cracking, itching and so painful that she was unable to work. She saw several physicians and has been diagnosed as having a contact dermatitis. There is no medical evidence that any job condition `caused' her underlying problem.... It is also not substantially disputed that her allergy to something on the job greatly aggravated her condition.... Each time she was taken off work she rapidly improved, and then when she returned to work, her condition would worsen. Since leaving the job, her condition is tolerable, but the slightest contact with whatever chemical or chemicals she is allergic to causes her a protracted period where the swelling, itching, and rash become intolerable. The doctors offer no cure or hope that her condition will substantially improve. She is obviously unemployable with this continuing condition. It might well be that she could find some occupation she could do most of the time, but four to six times per year, when her condition worsened, she would be unable to work at all for 3 or 4 weeks. The court finds as a matter of fact that the plaintiff's condition was not `caused' by her employment but that her employment `aggravated' her condition and increased her sensitivity to one or more chemicals to the point where she is permanently and totally disabled from any gainful employment.
"3. The court finds as a matter of fact that plaintiff's employment aggravated her condition so that she has no ability to perform her usual occupation or any other gainful employment. As a matter of law the plaintiff is entitled to permanent total disability benefits as provided under the laws of this state under the Act."

Bidermann argues that Peterson's skin condition and ensuing disability are noncompensable because, it says, she failed to prove that the condition, or the aggravation of the condition, was caused by hazards recognized as peculiar to a particular trade, process occupation, or employment. Such proof is necessary to meet the requirements of the occupational disease statute. § 25-5-110, Code 1975.

The trial court did not make a definitive finding that Peterson suffered from an occupational disease. At trial Peterson traveled under alternate theories. She suggested prior to trial that she was seeking recovery under the "occupational disease" provisions of the Workmen's Compensation Act or, in the alternative, under the "accident" provisions of the act. We agree with Bidermann that the evidence failed to support a conclusion that Peterson's skin condition was peculiar to her particular trade. Our conclusion that Peterson did not suffer from an occupational disease, however, is not dispositive of this appeal because we find that recovery was proper under the "accident" provisions of the act. We find those cases espousing the "cumulative-effect accident" theory to be applicable to the circumstances presented here. See Ex parte Harris, 590 So.2d 285 (Ala.1991); Gattis v. NTN-Bower Corp., 627 So.2d 437 (Ala.Civ. App.1993).

Bidermann next asserts that the trial court erred in finding Peterson's condition to be compensable because there was no evidence presented that her employment caused the condition or that her employment was the only cause that aggravated her condition.

The trial court addressed Bidermann's concern in the following manner:

"This court's initial inclination was to totally deny benefits since the plaintiff's disease was not `caused' by the employment, but [Ex parte Cash, 624 So.2d 576 (Ala. 1993)], seems to be substantially parallel and controlling in this case. The trial court there held that the plaintiff `suffer[ed] from adult onset asthma or hyper-reactive airways, both chronic obstructive conditions ..., he does not suffer from byssinosis ..., nor is his condition caused by employment related 1000*1000 factors.' The Supreme Court said that the lower court made no finding whether the plaintiff suffered from a disease aggravated by his exposure to cotton dust. In that case (as in this case) there was no real dispute but that his condition was worsened with the exposure to the cotton dust (apparently some chemical in this case). The Supreme Court held that there being no question that he suffered from a disease which was aggravated by the cotton dust, `no reasonable view of the evidence supports a judgment holding that Cash's disease was not compensable.' In the instant case the plaintiff's disease was not caused by work-related conditions but has clearly been aggravated to the extent she is no longer employable."

In a workmen's compensation case, this court's review is limited to a determination of whether there is any legal evidence to support the trial court's conclusions. If a reasonable view of the evidence supports the findings of the trial court, this court may then determine whether the correct legal conclusions have been drawn therefrom. Ex parte Eastwood Foods, Inc., 575 So.2d 91 (Ala.1991).

The record supports the court's findings. Although there was little objective evidence, medical or lay, as to the identity of the offending chemical causing Peterson's condition, there was substantial, undisputed, circumstantial evidence that her condition was at least aggravated by some chemical allergen contacted by her at her place of employment. We further find that the court drew the correct legal conclusions from the facts presented. See Hightower v. Brammall, Inc., 435 So.2d 1295 (Ala.Civ.App.1982); Albertville Nursing Home v. Upton, 383 So.2d 544 (Ala.Civ.App.1980); B.F. Goodrich Co. v. Martin, 47 Ala.App. 244, 253 So.2d 37 (Civ.1971). We commend the court for its thorough inclusion of facts and law in its judgment. We do not always find it so.

Bidermann further asserts that the trial court erred in finding Peterson to be totally and permanently disabled.

The test for permanent total disability is the inability to find gainful employment. Mead Paper Co. v. Brizendine, 575 So.2d 571 (Ala.Civ.App.1990). Total disability does not mean entire physical disability or absolute helplessness. Genpak Corp. v. Gibson, 534 So.2d 312 (Ala.Civ.App.1988). It is the duty of the trial court to make some determination as to the extent of disability. Genpak. In making the determination, the trial court must consider all the evidence, including its own observations, and interpret it to its own best judgment. Genpak.

In reviewing the record with the attendant presumptions, we find that a reasonable view of the evidence supports the court's discretionary conclusion that Peterson was permanently and totally disabled. Ex parte Eastwood Foods. This is so, particularly in view of the evidence submitted by Peterson's vocational expert.

The judgment of the trial court is affirmed.

The foregoing opinion was prepared by Retired Appellate Judge L. CHARLES WRIGHT while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.


All the Judges concur.

Formby v. Farmers and Merchants Bank, 904 F.2d 627 (C.A.11 (Ala.) 1990)

904 F.2d 627 (1990)

Sarah FORMBY, Plaintiff-Appellee,

Nos. 88-7466, 88-7467 and 88-7617.

United States Court of Appeals, Eleventh Circuit.

June 28, 1990.

628*628 629*629 J. Michael Cooper, Birmingham, Ala., Albert L. Shumaker, Burns, Shumaker & Burns, Centre, Ala., for defendant-appellant.

Donald R. Rhea, Clarence F. Rhea, Rhea, Boyd & Rhea, Gadsden, Ala., for plaintiff-appellee.

Before JOHNSON and ANDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.


This is the second appeal to this court by defendant Farmers & Merchants Bank ("the Bank"), challenging its liability to Sarah Formby for engaging in age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34. In its first appeal, the Bank challenged a jury determination that the Bank had intentionally discriminated against Formby because of her age. A panel of this court affirmed without opinion the jury's verdict and award of $19,400.00 in back pay. Formby v. Farmers & Merchants Bank, 832 F.2d 1266 (11th Cir.1987) (table), cert. denied, 486 U.S. 1023, 108 S.Ct. 1997, 100 L.Ed.2d 229 (1988).

In this appeal, the Bank challenges the relief obtained by Formby. In particular, the Bank argues that the district court erred in ordering the Bank to reinstate Formby and in awarding Formby liquidated damages and attorneys' fees. The Bank also contends that even if the award of attorneys' fees were proper, the district court erred by awarding a double enhancement of attorneys' fees.[1]

For the reasons that follow, we affirm.

630*630 I.

The Bank argues that the district court erroneously awarded relief in addition to the $19,400 jury award for back pay. The Bank's contention is that there was a final judgment awarding only the $19,400, and that Formby did not file a timely motion to alter or amend the judgment under Fed.R.Civ.P. 59(e) or otherwise seek in a timely manner to add the additional relief to the final judgment. We reject the Bank's argument because there was no final judgment at the time suggested by the Bank, i.e., before the first appeal.

The district court explicitly stated on the record its intention to award liquidated damages at twice the amount of the jury verdict. Record Vol. 2 at 157. However, the only filing in the district court's records reflecting a judgment was the clerk's court minutes memorializing the jury verdict. The minutes indicated that the jury had found in favor of the plaintiff Sarah Formby and had awarded Formby damages of $19,400. The clerk's court minutes did not, however, reflect the trial judge's oral determination that the plaintiff was entitled to receive liquidated damages. Thus, at the time of the first appeal, there was no court order or other document in the court's records which memorialized the district court's oral pronouncement that the plaintiff was entitled to receive liquidated damages at twice the amount of the jury verdict. The law is clear that a clerk of the court's minute entry of a jury verdict does not constitute a final judgment, when, as here, that verdict does not encompass the full relief to which a party may be entitled. United States v. Indrelunas, 411 U.S. 216, 93 S.Ct. 1562, 36 L.Ed.2d 202 (1973) (per curiam). See also Bankers Trust Co. v. Mallis, 435 U.S. 381, 384-85, 98 S.Ct. 1117, 1119-20, 55 L.Ed.2d 357 (1978) (per curiam). Until the court entered a judgment embodying that intention, it cannot be said that the court had rendered a final decision as to the plaintiff's entitlement to liquidated damages. See Pure Oil Co. v. Boyne, 370 F.2d 121, 122-23 (5th Cir.1966).[2] See also Jones v. Celotex Corp., 857 F.2d 273, 275 (5th Cir.1988); Wood v. Coast Frame Supply, 779 F.2d 1441, 1442-43 (9th Cir.), as amended, 791 F.2d 802 (9th Cir.1986).

Moreover, Formby's requested remedy of reinstatement still remained outstanding and unresolved.[3] In both her complaint and pretrial order, Formby explicitly sought reinstatement in addition to the other relief mentioned above. The clerk's court minutes in the record at the time of the first appeal made no mention as to whether this relief had been granted or denied. Because the district court had not yet determined Formby's entitlement to reinstatement, it cannot be said that there was a final judgment at the time of the Bank's first appeal. A final judgment "generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)). See also Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976) (district court determination of liability in Title VII case not a final, appealable judgment 631*631 where several of the plaintiff's prayers for relief remain open for determination); Richerson v. Jones, 551 F.2d 918, 921 (3rd Cir.1977) (order in employment discrimination case in which district court stated "judgment is rendered for plaintiff and against defendant" but did not dispose of claims for retroactive promotion, back pay, and punitive damages was not final, appealable order).

For the foregoing reasons we reject the Bank's argument that the district court erroneously awarded relief in addition to the $19,400 jury verdict for back pay.[4]


The Bank's challenges to the district court's award of liquidated damages to Formby are equally without merit. Under section 7(b) of the ADEA, 29 U.S.C. § 626(b), an employee is entitled to receive liquidated damages when an employer "willfully" violates the ADEA. Upon proof of an employer's willful violation of the Act, the employee is entitled to receive double damages.

Congress intended the award of liquidated damages to serve as a means of punishing offending employers. Trans World Airlines v. Thurston, 469 U.S. 111, 125, 105 S.Ct. 613, 624, 83 L.Ed.2d 523 (1985). Consequently, an employee's entitlement to liquidated damages is not determined by examining the injury suffered by the employee; rather, it is determined by looking to conduct of the employer who is guilty of discrimination. By establishing a standard requiring proof of "willful" misconduct, Congress created a two-tiered liability scheme: one designed solely to ensure the proper compensation for individuals whose rights under the ADEA are violated and a second devised to punish employers whose conduct constitutes a willful violation of the ADEA's proscriptions. Thurston, 469 U.S. at 128 n. 22, 105 S.Ct. at 625 n. 22.

To ensure that a separation exists between these two forms of liability, we have recognized that a showing that an employer engaged in intentional age discrimination does not automatically entitle a plaintiff to receive liquidated damages. Stanfield v. Answering Service, Inc., 867 F.2d 1290, 1296 (11th Cir.1989). The precise contours of the separation between a violation of the ADEA and a willful violation of the ADEA are, however, somewhat difficult to delineate. A mere showing that an employer knew of the potential applicability of the ADEA, Thurston, 469 U.S. at 129-30, 105 S.Ct. at 625, or that an employer acted negligently in determining whether its conduct comports with the requirements of the ADEA, see McLaughlin v. Richland Shoe Co., 486 U.S. 128, 108 S.Ct. 1677, 1681, 1682 & n. 13, 100 L.Ed.2d 115 (1988), is not sufficient to warrant the imposition of liquidated damages. At the same time, sufficient evidence to satisfy this standard does not require proof that the employer acted with an evil motive, bad purpose, or intent to violate the ADEA. Thurston, 469 U.S. at 126 n. 19, 105 S.Ct. at 624 n. 19; Lindsey v. American Cast Iron Pipe Co., 810 F.2d 1094, 1099 (11th Cir.1987).

632*632 In Thurston, the Supreme Court suggested that to prove entitlement to liquidated damages a plaintiff must establish that the employer knew its conduct was prohibited or showed reckless disregard for whether its conduct was prohibited by the Act. In several cases decided subsequent to Thurston, this court has adopted this standard. See, e.g., Verbraeken v. Westinghouse Electric Corp., 881 F.2d 1041, 1048 (11th Cir.1989), cert. dismissed, ___ U.S. ___, 110 S.Ct. 884, 107 L.Ed.2d 1012 (1990); Stanfield, 867 F.2d at 1296; Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1561 (11th Cir.1988); Spanier v. Morrison's Management Services, 822 F.2d 975, 978 (11th Cir.1987); Lindsey, 810 F.2d at 1099-1101.

Looking to the district court's oral and written findings of fact in support of its conclusion that the Bank's actions constituted a willful violation of the ADEA, we conclude that the district court correctly applied this standard to the facts presented in the case. The jury found that the Bank, through its president, Eugene Rutledge, discriminated against Formby because of her age by discharging her and later failing to recall her. In so concluding, the jury rejected as pretextual the Bank's explanations that its decisions to discharge and not recall or transfer the plaintiff were premised upon legitimate business reasons or subjective business judgments.[5] The district court also found that Rutledge, a practicing attorney, was aware that the ADEA prohibited discrimination on the basis of age at the time that he discharged Formby because of her age.[6] As we have previously noted in Lindsey v. American Cast Iron Pipe Co., the combination of these two facts "satisfy the strictest prong of the Thurston willfulness standard: the employer knew that its conduct violated the ADEA." 810 F.2d at 1099 (emphasis in original). Applying a clearly erroneous standard of review to the district court's determination of willfulness, we uphold the district court's conclusion that the Bank's conduct constituted a willful violation of the ADEA.[7]

The Bank also argues that the district court erred in deciding that Formby was entitled to liquidated damages without submitting the issue to the jury. In two cases decided subsequent to the trial in this matter, we have explicitly recognized that the determination of whether a violation of the ADEA was willful is a determination of fact, Stanfield, 867 F.2d at 1296, to which a party, upon giving proper notice, is entitled to have a jury decide the plaintiff's entitlement to liquidated damages. Lindsey, 810 F.2d at 1097 & n. 3.

Although a party may possess the right to have a jury decide factual issues, a party may also waive or forfeit that right. C. Wright & A. Miller, 9 Federal Practice & Procedure: Civil § 2321, at 102 (1971 & Supp.1990). Having carefully reviewed the record, we are convinced that the defendant did just that in this case. During the charge conference, the issue arose as to whether resolution of the issue of willfulness should be decided by the jury or the court. When asked directly by the trial judge whether the jury or the court should determine willfulness, defendant's counsel indicated no preference to the court.[8]

633*633 The Bank's argument that the district court was aware that it sought jury resolution of the willfulness issue is not supported by the record. Contrary to the Bank's assertion that "The bank made a timely objection to the district court taking this issue from the jury," Appellant's Brief at 41, the record reveals only that the district court acknowledged the fact that the Bank objected to the district court's conclusion that there was sufficient evidence in the record to support a finding of willfulness should the jury return a finding of discrimination.[9] Counsel for the Bank made no request that the jury be instructed as to the standard for determining willfulness nor did he request an interrogatory be submitted to the jury as to this issue.[10] Under these circumstances, we conclude that the Bank forfeited its right to have the jury decide this factual issue.[11] See Hearn v. City of Gainesville, 688 F.2d 1328, 1335 (11th Cir.1982). As the Tenth Circuit has observed:

Rule 49(a), 28 U.S.C.A. permits the court to require a jury to return specific verdicts upon each issue of fact. These questions are to be submitted to the jury in written form, susceptible of brief answers. If in submitting these questions the court omits any issue of fact raised by the pleadings or by the evidence, each party waives the right to a trial by jury of the issues so omitted unless before the jury retires, he demands its submission to the jury. In case an issue of fact is omitted without such demand, the court may make a finding.

Bruno v. Western Electric Co., 829 F.2d 957, 961 (10th Cir.1987) (quoting Merrill v. Beaute Vues Corp., 235 F.2d 893, 896-97 (10th Cir.1956)).


In its final objection, the Bank argues that the district court erred in awarding Formby's trial counsel a one-third enhancement of the lodestar to account for the delay incurred in receiving compensation.[12] Alleging that the district 634*634 court had calculated the lodestar amount using current hourly rates rather than historic rates, the Bank contends that a one-third multiplier effectively amounts to a double enhancement of the fees.

The Bank never raised this objection before the district court. "As a general rule, an appellate court will not consider a legal issue or theory raised for the first time on appeal." Lattimore v. Oman Construction, 868 F.2d 437, 439 (11th Cir.1989) (per curiam). Although this rule is not without its exceptions, see generally Dean Witter Reynolds, Inc. v. Fernandez, 741 F.2d 355, 360-61 (11th Cir.1984), the Bank has provided no basis for its failure to raise this objection in the district court. Moreover, our review of the record does not suggest the existence of adequate grounds to warrant departure from the general rule. The Bank's counsel, although clearly afforded adequate opportunity by the district court to voice any objections to the proposed one-third enhancement for delay, did not raise this objection before the trial court.[13]

Accordingly, we decline to entertain the Bank's objection to the district court's enhancement for delay. See generally In re Daikin Miami Overseas, Inc., 868 F.2d 1201, 1207 (11th Cir.1989).


We conclude that the district court's judgments in Nos. 88-7466, 88-7467, and 88-7617 are due to be


[1] The appeal in this case consists of three consolidated appeals. The first appeal, No. 88-7466, is from the district court's interim award of back pay to Formby. The second appeal, No. 88-7467, is from the district court's July 18, 1988, award of attorneys' fees. The district court certified both of these orders as judgments pursuant to Fed.R.Civ.P. 54(b). The third appeal, No. 88-7617, is from the district court's final judgment in this case. In this judgment, the district court ordered the defendant to reinstate the plaintiff and awarded the plaintiff (1) the remainder of the back pay to which she was entitled, (2) liquidated damages, (3) prejudgment interest, and (4) supplemental attorneys' fees.

Unless specified otherwise throughout this opinion, we will generally discuss the appeal in terms of the total relief awarded by the district court rather than by referencing the various awards of relief.

[2] This case was decided prior to the close of business on September 30, 1981, and is binding precedent under Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981).

[3] The fact that plaintiff's request for attorneys' fees remained outstanding is irrelevant to the issue as to whether a final judgment had been entered. See Taylor v. Texgas Corp., 831 F.2d 255, 258 (11th Cir.1987) (awards of attorneys' fees in ADEA cases are collateral to decision on the merits). See generally Budinich v. Becton Dickinson and Co., 486 U.S. 196, 108 S.Ct. 1717, 1721, 100 L.Ed.2d 178 (1988) (holding that existence of outstanding claims for attorneys' fees do not affect determination whether district court entered a "final decision" for purposes of 28 U.S.C. § 1291).

[4] We similarly reject as frivolous the Bank's claim that Formby waived her right to receive relief other than that awarded by the jury because she did not argue during the pendency of the Bank's first appeal that no final judgment had yet been rendered. According to the Bank, Formby's failure to raise this argument should be construed as acquiescence in the jury verdict representing the total relief to which she was entitled. Consequently, the Bank concludes, she is now estopped from claiming entitlement to any relief other than the $19,400 awarded by the jury.

In her brief during the first appeal, Formby clearly indicated to this court that she would be pursuing the additional relief requested from the district court upon affirmation of the jury's verdict. See Brief for Appellee 6, Formby v. Farmers & Merchants Bank, 832 F.2d 1266 (11th Cir.1987) (No. 87-7193). Although it would have been appropriate for her to challenge the Bank's appeal as being premature, her failure to do so is not fatal to her current claims of entitlement to relief. The Bank sought to invoke appellate review prematurely on the first appeal; we refuse to allow the Bank to capitalize on its own erroneous actions simply because the prior panel did not notice the error.

[5] See Record Vol. II, at 151-52.

[6] Record Vol. I, at 68: District Court's Additional Findings of Fact and Conclusions of Law ¶ 4 (Nov. 28, 1988).

[7] As in Lindsey, we express no opinion on whether our holding would be the same had the district court determined that the evidence, while establishing intentional discrimination, did not support a finding of willfulness. Lindsey, 810 F.2d at 1100.

[8] The transcript reveals the following discussion took place during the charge conference:

THE COURT: ... I made these remarks as a prelude to asking you what is your position on whether the jury has to find willfulness or whether the Court has to find? If the jury has to find willfulness, then I have got to, in addition to providing space for the jury to return a verdict for compensatory damages, I have also got to ask the jury whether the violation was willful.

[PLAINTIFF'S COUNSEL]: You are addressing it to both of us?


[PLAINTIFF'S COUNSEL]: I think the Court makes that determination, my understanding.

[DEFENDANT'S COUNSEL]: Your Honor, I do not know the law on this. I would think that there will be — whatever Mr. Rutledge's answer is — there will be only one piece of evidence on that point, and it will follow whoever makes the decision.

Record Vol. II, at 81-82.

[9] During the second charge conference, the court made the following observation:

THE COURT: All right. Now I'm not going to submit the issue of liquidated damages to the jury. I will decide the issue of willfulness, and if the jury finds that the plaintiff was discriminated against because of her age, based on Mr. Rutledge's acknowledged awareness of the law the violation was willful, and liquidated damages will be assessed. And the defendant objects and the Court overrules the objection.

[DEFENDANT'S COUNSEL]: Your Honor, may I, for purposes of protecting my record, renew my motion for a directed verdict?

THE COURT: Yes sir. The motion for a directed verdict is received by the Court and it's overruled....

Record Vol. II, at 131-32.

[10] By not articulating a specific objection to the fact that the trial judge was reserving for himself the determination of liquidated damages, the Bank procedurally defaulted this issue. See Fed.R.Civ.P. 51 ("No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection."). Under Rule 51, a party must explicitly state each ground for his objection — the fact that a party may object to the sufficiency of the evidence supporting a particular claim does not preserve other objections concerning the determination of that claim. See, e.g., Barnett v. Housing Authority of City of Atlanta, 707 F.2d 1571, 1580-81 & n. 17 (11th Cir.1983).

[11] Indeed, we note that not once during the entire proceedings before the district court did the Bank ever suggest that this issue should have been resolved by the jury. Consequently, even if we were not to have held that the Bank through its silence waived its right to a jury trial, we would conclude nonetheless that to the extent the Bank is seeking to raise an issue not raised before the trial court, appellate review of this issue is inappropriate. See Molett v. Penrod Drilling Co., 826 F.2d 1419, 1424 (5th Cir.1987).

[12] The Bank's argument that Formby waived her right to attorneys' fees by failing to comply with the district court's deadline for filing an appropriate motion is wholly without merit. After having received the jury's verdict in favor of the plaintiff, the district court stated:

I will invite counsel to try to work out a reasonable attorney's fee, if they can.... If they cannot by the 9th of March, Mr. Rhea [plaintiff's counsel], submit to Mr. Pruett and Mr. Shumaker [defendant's counsel], a statement of your hours and description of your services rendered, and a claim for any out-of-pocket expenses incurred. And once you submit the statement, if you will file a motion, I will set the matter down for hearing.

Record Vol. II, at 157.

Contrary to the Bank's assertion that "the district court instructed the plaintiff to file a petition for attorney's fees by March 9, 1987, if no agreement could be reached with the bank," Brief for the Appellant at 37, a proper reading of this instruction suggests that the parties were to try and negotiate until March 9th, and if no settlement were reached by that date, then sometime thereafter a petition for attorneys' fees should be filed. Plaintiff's counsel filed the petition for attorneys' fees a little over two weeks from the date that the mandate was received by the district court. As such, the petition was timely filed. Cf. Davidson v. City of Avon Park, 848 F.2d 172, 174 (11th Cir.1988).

[13] The issue of an enhancement for delay was the subject of discussion between the district court, Formby's attorneys, and the Bank's attorney during the July 18, 1988, hearing before the district court. Counsel for the Bank made only two arguments as to why an enhancement was inappropriate. First, counsel argued that some of the delay was not attributable to the defendant's actions. Record Vol. IV, at 14. Second, counsel also argued that the plaintiff waived the enhancement. Record Vol. IV, at 15. These two grounds were the only bases for objection to the proposed enhancement that counsel for the Bank desired to make to the district court. Record Vol. IV, at 16. Neither of these two grounds have been raised on appeal. In any event, both are without merit.

[14] To the extent the Bank challenges the initial determination as to its liability to Formby, we conclude that those challenges are without merit. Consequently, even though the original panel was without jurisdiction to review the jury verdict during the Bank's first appeal, we concur with and reaffirm its conclusions that the jury properly found that the Bank intentionally discriminated against Formby because of her age.

Goodyear Tire & Rubber Co. v. Muilenberg, 990 So.2d 434 (Ala. Civ. App. 2008)






-- February 29, 2008

Howard B. Warren of Turnbach, Warren, Roberts & Lloyd, P.C., Gadsden, for appellant.Donald R. Rhea of Rhea, Boyd, Rhea & Coggin, Gadsden, for appellee.

Goodyear Tire & Rubber Company appeals from a judgment awarding workers' compensation benefits to James Muilenburg and assessing a 15% penalty against Goodyear for unpaid compensation.   We affirm in part, reverse in part, and remand.

Muilenburg sued Goodyear, seeking to recover workers' compensation benefits for a left-leg injury allegedly caused by a work-related accident.   Goodyear filed an answer denying the material allegations of Muilenburg's complaint.   Following a trial, the trial court entered a judgment finding that Muilenburg's left-leg injury had been caused by a work-related accident.   In its judgment, the trial court found:  “The evidence ․ establishes that [Muilenburg] was performing his job ․ when his ankle rolled, snapping ․ two bones in his left leg.   It is obvious [Muilenburg] was performing his duties at the time of this traumatic injury and the injury arose out of his employment.”   The trial court's judgment awarded Muilenburg temporary-total-disability benefits for a period following his accident;  permanent-partial-disability benefits, pursuant to the schedule established in § 25-5-57(a)(3)a., Ala.Code 1975;  and a 15% penalty on accrued temporary-total-disability benefits, pursuant to § 25-5-59(b), Ala.Code 1975.

On appeal, Goodyear argues (1) that the trial court erred in awarding benefits to Muilenburg because, Goodyear says, Muilenburg's employment with Goodyear did not cause his accident;  and (2) that the trial court erred in assessing a 15% penalty against Goodyear because, it says, there was a good-faith dispute regarding Goodyear's obligation to compensate Muilenburg.

At the time of his accident, Muilenburg operated a “wigwag,” a machine that folds processed sheets of rubber onto a metal pallet or “skid.”   Muilenburg's work duties included transporting skids on an electric truck to and from the wigwag.   When transporting a skid, Muilenburg controlled the electric truck by manually engaging buttons on the truck as he walked beside it.   Muilenburg testified at trial that he was transporting an empty skid to the wigwag when he “tripped and fell,” fracturing his left tibia and left fibula.   Muilenburg testified that he believed that the floor was steel where he fell.   Muilenburg further testified that he was “not certain” how the accident happened.   Muilenburg attributed his inability to recall how the accident happened to the pain that he had experienced upon falling.   The record on appeal indicates that no one observed the accident.   Immediately after the accident, Muilenburg was transported to a hospital, where Dr. C. William Hartzog performed surgery on Muilenburg's left tibia.   Muilenburg was 39 years old at the time of the accident.

A Goodyear-issued “Associate Report of Incident” stated that

“Mr. Muilenburg stated that he was walking around the [electric] truck back to the [wigwag] when his left ankle rolled over.   Mr. Muilenburg stated that he heard a pop and then fell to the floor.   He stated there was nothing in the floor and that he did not step over or walk on any skids, he was just walking ‘normally.’ ”

The associate report concluded that “the area was clean and free of debris, water and obstructions.”   However, the associate report seems to indicate that it was filled out more than 10 hours after the accident.   That report listed Muilenburg and two coworkers, Stan Pollard and Brian C. Bowen, as “investigation team members.”   However, Muilenburg testified that he had not been involved in preparing the associate report.   Similarly, Pollard testified that he did not sign the associate report and that he did not recall ever having seen it.   Bowen, the other Goodyear employee listed as an “investigative team member,” did not testify.

Muilenburg's “history and physical,” completed at the hospital shortly after his accident, stated that Muilenburg had indicated that he was injured when he “tripped over his foot and twisted his left leg inward.”   Dr. Hartzog testified that fractures of the type that Muilenburg had incurred are usually associated with a twisting motion of the leg.   Dr. Hartzog opined that Muilenburg's fractures could have been caused by tripping or slipping on a surface that is somewhat greasy or uneven due to built-up rubber.

Three days after his accident, Muilenburg talked on the telephone with a representative from the third-party administrator responsible for handling workers' compensation claims submitted by Goodyear employees.   A transcript of that conversation indicates that Muilenburg stated:  “I [had placed] an empty skid in[to] position [when I] walked around [the empty skid] and my left ankle gave way and buckled underneath me, and I fell to the ground.”   Muilenburg further stated that he did not remember much after falling because of the pain he had experienced.   Muilenburg also stated that he did not know if he had tripped on anything or if the floor was wet when he fell.

When the accident occurred, the treads of Muilenburg's work shoes were caked with built-up rubber.   Muilenburg testified that he wore those shoes only at work.   According to Muilenburg, rubber accumulates in the shoe treads of Goodyear employees because stray pieces of rubber sometimes gather on the workplace floor.   Muilenburg testified that he did not remember any stray pieces of rubber lying on the floor at the time of his accident.   The surface of Muilenburg's shoes also contained dried slurry residue.   The record indicates that slurry is a very slick liquid used in the manufacturing of rubber products.   Both Muilenburg and Pollard testified that slurry will sometimes spill onto the floor in the area where Muilenburg worked.   However, Muilenburg stated that he did not remember whether slurry was on the floor of his work area when he fell.

Muilenburg testified that the floor in his work area sometimes contained stray rubber pellets, which he described as being roughly the size of “bubble gum.”   Muilenburg did not, however, testify that he had tripped or slipped on any pellets.   Pollard testified that Muilenburg's accident could have been caused by stepping on a pellet or by tripping on a skid.

 Section 25-5-81(e), Ala.Code 1975, provides the standard of review in a workers' compensation case:

“(1) In reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.

“(2) In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.”

Substantial evidence is “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.”  West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).   In a workers' compensation case, “the appellate court must view the facts in the light most favorable to the findings of the trial court.”  Ex parte Professional Bus. Owners Ass'n Workers' Comp. Fund, 867 So.2d 1099, 1102 (Ala.2003).  “[C]ircumstantial evidence is a recognized form of proof in compensation cases as in others.”   W.T. Smith Lumber Co. v. Raines, 271 Ala. 671, 673, 127 So.2d 619, 622 (1961).

 On appeal, Goodyear first argues that the trial court erred in awarding workers' compensation benefits to Muilenburg because, Goodyear says, Muilenburg's employment with Goodyear did not cause his accident.   More specifically, Goodyear argues that Muilenburg's accident did not “arise out of” his employment.   An employer must pay compensation for its employee's injury or death “caused by an accident arising out of and in the course of his or her employment.” § 25-5-51, Ala.Code 1975.   Goodyear concedes that Muilenburg's accident arose “in the course of” his employment.   See Massey v. United States Steel Corp., 264 Ala. 227, 230, 86 So.2d 375, 378 (1955) (“An injury to an employee arises in the course of his employment when it occurs within the period of his employment, at a place where he may reasonably be and while he is reasonably fulfilling the duties of his employment or engaged in doing something incident to it.”).   Goodyear argues, however, that Muilenburg's accident did not “arise out of” his employment.

 The Alabama Workers' Compensation Act, § 25-5-1 et seq., Ala.Code 1975, does not define the phrase “arising out of ․ employment.”   Our supreme court has stated:

“The phrase ‘arising out of ․ employment’ refers to the employment as being the source and cause of the accident.   This Court has held that the rational mind must be able to causally connect the resulting injury to the employment.   Massey v. United States Steel Corp., [264 Ala. 227, 86 So.2d 375 (1955) ].   The claimant bears the burden of proving that his injury arose out of his employment.  Southern Cotton Oil Co. v. Wynn, 266 Ala. 327, 96 So.2d 159 (1957).”

Ex parte Patterson, 561 So.2d 236, 238 (Ala.1990).   Moreover, “ ‘[c]ourts must liberally construe the workers' compensation law “to effectuate its beneficent purposes,” although such a construction must be one that the language of the statute “fairly and reasonably” supports.’ ”  Ex parte Weaver, 871 So.2d 820, 824 (Ala.2003) (quoting Ex parte Dunlop Tire Corp., 706 So.2d 729, 733 (Ala.1997), quoting in turn Ex parte Beaver Valley Corp., 477 So.2d 408, 411 (Ala.1985)).

In arguing that Muilenburg's employment did not cause his accident, Goodyear relies on this court's decision in Wal-Mart Stores, Inc. v. Morgan, 830 So.2d 741 (Ala.Civ.App.2002).   In Wal-Mart, the employee, a cashier, was returning to her cash register when she fell and injured her hip.   The employee testified that she “just lost [her] balance” and that she did not know what had caused her to lose her balance and fall.  Id. at 742.   The employee further testified that the tile floor was a possible cause of her accident because the floor was sometimes “slippery.”  Id. at 746.   Based on that evidence, the trial court concluded that the employee's injury arose out of her employment.  Id. at 743.

This court reversed the trial court's judgment, stating:

“The record contained no evidence indicating that the floor was wet or that it posed a risk to [the employee].  [The employee] testified that she did not see any water on the floor and that she simply lost her balance and fell.  [The employee] also testified that her workplace ‘probably’ had nothing to do with her accident, and that she did not know what caused her to lose her balance.   The trial court found only that [the employee] ‘lost her balance and fell.’   Other than [the employee's] conjecture that she ‘might’ have slipped on the floor, the record does not contain evidence indicating that the floor caused [the employee's] injury ․

“․ [T]he trial court in this case did not infer that the tile floor caused [the employee's] fall;  the trial court only noted [the employee's] testimony that it was ‘possible that her foot slipped on the tile floor when she turned.’ ”

830 So.2d at 746.

However, in this case, unlike in Wal-Mart, circumstantial evidence supports the trial court's finding that work conditions caused Muilenburg's accident.   Muilenburg worked in a more hazardous environment than the environment the employee in Wal-Mart worked in.   When the accident occurred, the treads of Muilenburg's shoes were caked with rubber residue.   The surface of Muilenburg's shoes also contained residue from slurry, a slick liquid.   There was evidence establishing that slurry, stray pieces of rubber, and small rubber pellets sometimes were present on the floor in Muilenburg's work area.   Although Muilenburg testified that he was uncertain how the accident happened, there was evidence indicating that his recollection of the accident was clouded by the pain he had experienced upon falling.   Although the associate report indicated that the area where the accident occurred was free of obstructions, that report was filled out more than 10 hours after the accident.   Further, Muilenburg and his coworker Pollard denied any involvement in preparing that report.  “The trial court, as the finder of facts, is authorized to draw any reasonable inference from the evidence ․” Winn-Dixie, Inc., of Montgomery v. Ates, 628 So.2d 791, 796 (Ala.Civ.App.1993).   Given the facts of this case, the trial court could have reasonably inferred that Muilenburg's accident arose out of his employment.

In Slimfold Manufacturing Co. v. Martin, 417 So.2d 199 (Ala.Civ.App.1981), an employee suffered an “unexplained” fall.  Id. at 200.   The employer submitted extensive evidence indicating that the employee's fall was due to fainting caused by cirrhosis of the liver, i.e., an “idiopathic factor.” 1  The trial court awarded the employee compensation.  Id. However, this court reversed the trial court's judgment, concluding that the employee had failed to establish that his employment had caused his fall.  Id. at 202.   In this case, unlike in Slimfold, there was no evidence indicating that Muilenburg suffered from an idiopathic factor that may have caused his accident.   Instead, there was evidence of potentially hazardous working conditions to which the trial court could have rationally connected Muilenburg's accident.   See Ex parte Patterson, 561 So.2d at 238;  see also Gold Kist, Inc. v. Oliver, 526 So.2d 588, 589 (Ala.Civ.App.1988) (stating that the trial court could have reasonably inferred that an employee's fall on a concrete floor was caused by her employment when there was evidence indicating that the floor was always wet).   Accordingly, the trial court did not err in finding Muilenburg's injury to be compensable.

 Goodyear also argues that the trial court erred in awarding Muilenburg a 15% penalty on unpaid compensation, pursuant to § 25-5-59(b), Ala.Code 1975.  Section 25-5-59(b) provides, in pertinent part:  “If any installment of compensation payable is not paid without good cause within 30 days after it becomes due, there shall be added to the unpaid installment an amount equal to 15 percent thereof, which shall be paid at the same time as, but in addition to, the installment.”  “ ‘[G]ood cause exists when there is a good faith dispute as to the employer's liability to its employee.’ ”  Ex parte Crean, 782 So.2d 298, 302 (Ala.2000) (quoting Stevison v. Qualified Pers., Inc., 571 So.2d 1178, 1179 (Ala.Civ.App.1990)) (emphasis omitted).

As noted earlier, in order for Muilenburg to receive compensation, his accident must have “aris[en] out of and in the course of his ․ employment.” § 25-5-51, Ala.Code 1975.   Although it is undisputed that Muilenburg's accident arose in the course of his employment, there was evidence indicating that Muilenburg's accident may not have arisen out of his employment.   Accordingly, we conclude that a good-faith dispute existed regarding Goodyear's liability to Muilenburg.   See Crown Textile Co. v. Dial, 507 So.2d 522, 524 (Ala.Civ.App.1987) (stating that there was a good-faith dispute regarding the employer's liability to the employee when there was evidence indicating that the employee's accident might have been caused by a condition not arising out of and in the course of his employment).   Therefore, the trial court erred in awarding the 15% penalty.

We reverse the judgment of the trial court insofar as it awarded a 15% penalty on unpaid compensation, and we remand the case.   In all other respects, we affirm the judgment.


Based on our supreme court's holding in Ex parte Byrom, 895 So.2d 942 (Ala.2004), I am constrained to concur in the main opinion's conclusion that the employee presented substantial evidence indicating that his fall arose out of his employment.   In Byrom, our supreme court adopted dicta in Ex parte Trinity Industries, Inc., 680 So.2d 262, 266 n. 3 (Ala.1996), when it held that:

“ ‘An employee claiming to have been injured by a sudden and traumatic external event (an “accident” in the colloquial sense, e.g., being struck by a falling hammer on a construction site or slipping off a ladder) need only produce substantial evidence tending to show that the alleged “accident” occurred and tending to establish “medical causation,” by demonstrating that the “accident” was a contributing cause of the complained-of injuries and complications.’ ”

895 So.2d at 947.   The court then held that in cases in which an employee claims that he or she has suffered injuries due to an “accident” as defined in Ala.Code 1975, § 25-5-1(7) (“an unexpected or unforeseen event, happening suddenly and violently, with or without human fault, and producing at the time injury to the physical structure of the body ․ by accidental means”), the Trinity test “does not require proof beyond the fact of the accident itself that the accident arose out of the employee's employment ․” Byrom, 895 So.2d at 947.2

In this case, as in Byrom, the employee is claiming that he was injured in an “accident.”   The record contains various versions of how this “accident” happened, but it is undisputed that while working the employee unexpectedly fell, immediately and severely injuring his left leg.   Having proven that he had sustained an “accident” while working, the employee, according to Byrom, did not need to prove any additional facts in order to satisfy the “arising-out-of-the-employment” requirement.

I fully recognize that Byrom did not involve an injury caused by a fall.   However, the holding of Byrom is phrased so broadly that I can conclude only that the supreme court intended that it would apply to all “accidental” injuries.   I am also fully aware that a line of decisions from this court that were issued before Byrom rejected a legal test similar to the one adopted in Byrom when determining whether an injury suffered as the result of a fall is compensable.   See Casteel ex rel. Johnson v. Wal-Mart Stores, Inc., 860 So.2d 348 (Ala.Civ.App.2003);  Pittsburg & Midway Coal Mining Co. v. Rubley, 882 So.2d 335 (Ala.Civ.App.2002) (accord);  Wal-Mart Stores, Inc. v. Morgan, 830 So.2d 741 (Ala.Civ.App.2002);  and Slimfold Mfg. Co. v. Martin, 417 So.2d 199 (Ala.Civ.App.1981), writ quashed, Ex parte Martin, 417 So.2d 203 (Ala.1982) (declining to use “but-for” test to determine compensability of fall at work).   Although I agree totally with the reasoning in those cases, and although I disagree totally with the analysis used in Byrom, unless and until our supreme court overrules it, this court must follow Byrom.   See Ala.Code 1975, § 12-3-16.

Nevertheless, I agree that the employer, relying on our prior caselaw, could have reasonably concluded that the injury resulting from the employee's fall was not compensable.   Therefore, I concur in the main opinion's decision to reverse that portion of the trial court's judgment awarding the employee the additional 15% penalty provided for in Ala.Code 1975, § 25-5-59.


1.   As our supreme court has stated:“We use the word ‘idiopathic’ as it is used by Professor Larson, to mean ‘peculiar to the individual’ and not ‘arising from an unknown cause.’   Idiopathic refers to an employee's preexisting physical weakness or disease.   1 Larson, Workmen's Compensation Law § 12.00.”Ex parte Patterson, 561 So.2d at 238 n. 2.

2.   Although the Byrom court subsequently analyzed the case under the increased-risk test, the opinion is clear that its discussion of the increased-risk test was unnecessary to its core holding that the employee had proven that his accident “arose out of the employment” by proving merely that he had been struck by lightning while talking on the telephone at work.

BRYAN, Judge.

PITTMAN and THOMAS, JJ., concur.THOMPSON, P.J., concurs in the result, without writing.MOORE, J., concurs in the result, with writing.

Goodyear Tire & Rubber Co. v. Cranford, 989 So.2d 1121 (Ala. Civ. App. 2008)




-- February 15, 2008


Howard B. Warren of Turnbach, Warren, Roberts & Lloyd, P.C., Gadsden, for appellant.Donald R. Rhea of Rhea, Boyd, Rhea & Coggin, Gadsden, for appellee.

Goodyear Tire & Rubber Company (“Goodyear”) appeals the trial court's judgment in favor of its former employee, James Cranford.   In 2003, Cranford injured his right knee while working for Goodyear.   Cranford filed a workers' compensation complaint pursuant to § 25-5-81, Ala.Code 1975, in the Etowah Circuit Court on May 30, 2005, alleging that the injury had caused him to develop deep vein thrombosis (“DVT”), or a blood clot, in his leg.   Cranford requested that the court determine that he was permanently and totally disabled and that he was entitled to workers' compensation benefits.

Notably, the parties did not dispute that Cranford's knee injury arose out of and in the course of his employment with Goodyear, that Goodyear had received notice of the injury, or that Cranford had been treated for the injury with arthroscopic surgery.   Neither did the parties dispute that Cranford had a valid and compensable workers' compensation claim arising from the injury, nor that Cranford was entitled to temporary-total-disability benefits as a result of the injury.   However, the parties did dispute whether Goodyear was liable to Cranford for workers' compensation benefits related to the DVT and whether Cranford was permanently and totally disabled as a result of the DVT.

Cranford testified at a hearing before the trial court, and the parties submitted documentary evidence, including the deposition transcripts of the parties' vocational experts and Cranford's treating physicians.   On January 3, 2007, the trial court entered a judgment in which it found Cranford to be permanently and totally disabled and awarded weekly compensation accordingly.   The trial court also awarded Cranford an attorney fee based on Cranford's life expectancy and the present value of the compensation award.   Goodyear filed a postjudgment motion, which the trial court denied.   Goodyear then filed a timely notice of appeal to this court.

The evidence reveals the following relevant facts.   Cranford was 64 years old at the time of the final judgment.   He had completed the 10th grade and had subsequently earned his general-equivalency diploma.   Cranford had been employed with Goodyear for nearly 40 years and had worked in several different positions in Goodyear's manufacturing facilities during that time.   In 2003, he worked as a whitewall inspector.

While Cranford was at work on June 21, 2003, he injured his right knee when he climbed down a ladder.   He was examined by Dr. Christopher Kelley, who diagnosed him as having torn the medial meniscus, or cartilage, in his knee.   Dr. Kelley recommended and performed outpatient arthroscopic surgery to repair the injury.   The surgery was noninvasive and lasted 16 minutes.   Cranford did not work for several weeks while he recovered from the injury and surgery.

Cranford's recovery progressed well, and in late September 2003 he was released to return to “light duty” work.   While at work on October 10, 11, and 12, 2003, Cranford began to develop swelling in his lower right leg.   The swelling worsened, and on October 13, 2003, Cranford consulted a doctor and was admitted to the hospital.   He was diagnosed with DVT in his lower right leg.

Dr. Kelley defined DVT as “the abnormal coagulation of blood in the deep vein.”   Dr. Kelley explained,

“the biggest risk with deep vein thrombosis is there is a small chance that the blood clot could break loose and travel through the venous system to the lungs-through the heart to the lungs and cause pulmonary or cardiac compromise or both, and can, in rare cases, lead to death.”

Dr. Kelley testified that DVT may be caused by several factors, including a genetic predisposition, trauma, prolonged inactivity, or surgery.   Regarding the cause of Cranford's DVT, Dr. Kelley stated, “although I would say the events [the surgery and the development of DVT] are related because there's no other apparent cause, it is generally accepted that, if one develops a deep vein thrombosis after arthroscopic surgery, one already had a high predisposition to developing a deep vein thrombosis.”   He further explained:

“I think although [Cranford is] at a high predisposed risk for [DVT], any insult or injury no matter how minute, be it the injury itself and the surgery, ․ that yes, in this case, I would link the two together, the injury, the surgery, and the result of the deep vein thrombosis because of his predisposition.”

Cranford was hospitalized as a result of the DVT for nine days, and he did not return to work after October 12, 2003.   His doctors testified that they treated him with coumadin, a blood thinner, to dissolve the blood clot.   While he was in the hospital, Cranford began seeing Dr. Maria Sales for treatment of his DVT and management of the coumadin treatment.   In January 2004, Cranford experienced excessive bleeding as a complication of the coumadin treatment, but Dr. Sales testified that she continued the treatment in order to completely dissolve the clot.

While Cranford was being treated with coumadin, he was restricted from working, particularly in a manufacturing environment, because of an increased risk of bleeding if he were injured.   Dr. Sales testified that Cranford “could return to work if it was his wish” when the coumadin treatment ended.   Although Cranford was still being treated with coumadin, Dr. Kelley released him to return to work on June 28, 2004, with the expectation that he would retire almost immediately.   Cranford did retire from his employment with Goodyear on July 1, 2004, and he began receiving retirement benefits.

Although DVT patients typically receive coumadin treatment for only six months, Dr. Sales continued treating Cranford with coumadin until December 2004.   Dr. Sales testified that she continued the treatment because Cranford still showed symptoms of a blood clot.   In December 2004, she discontinued the treatment because she believed that Cranford's remaining symptoms were caused by scar tissue on his vein and not by the continued presence of a blood clot.   Dr. Sales then prescribed Cranford a preventative course of medication so that he would not develop another blood clot.   Cranford's new medication did not have the same high risk of bleeding as coumadin.

Cranford has not worked since October 12, 2003.   He testified that at the time of the hearing he continued to experience swelling and pain in his lower right leg.   Per his doctors' instructions, Cranford must not sit, stand, or walk for prolonged periods of time, and he must frequently walk or move his right leg in order to increase circulation.   To reduce the swelling, Cranford must wear a surgical stocking, which he described as uncomfortable and hot.   Dr. Sales stated that she believed that Cranford's continued symptoms were caused by scar tissue left by the blood clot, which restricted the flow of blood to and from his leg.   Cranford is restricted from engaging in the following activities while working:  squatting, kneeling, climbing, lifting, and prolonged sitting, standing, or walking.

Dr. Sales recommended that Cranford find work “that will be easy for him to do.”   Dr. Kelley testified that he would recommend work in an office-type setting or “the lightest type employment that there is.”   Dr. Kelley opined that Cranford was “considered a high risk for a recurrence” of a blood clot and that “without the deep vein thrombosis he would have been [released to work] without restrictions.”

Dr. Kelley placed Cranford at maximum medical improvement on August 9, 2004.   He explained Cranford's impairment as follows:

“2% right lower extremity, status post right knee arthroscopy with partial medial meniscus.   This translates to a 1% whole person impairment.

“2% right lower extremity, status post deep vein thrombosis with residual edema.   This translates to a 1% whole person impairment.

“Using the combined value chart, this translates to a 4% right lower extremity and a 2% whole person impairment.”

Cranford's vocational specialist, Mary Kessler, testified that, based on Cranford's education, work experience, and physical limitations, she had determined that Cranford had suffered a 96% loss of access to jobs, a 58% loss of access to wages, and had an overall vocational-disability rating of 98% based on Dr. Kelley's recommendations.   Kessler testified that, if his complaints of pain were believed, Cranford had a vocational-disability rating of 100%.

Goodyear's vocational specialist, Eddie Rice, testified that, considering Cranford's training and lack of experience in nonmanufacturing environments, and based on the preinjury physical demands of Cranford's work compared to his postinjury limitations, Cranford had suffered at least a 90% loss of access to occupations.   Rice stated that he believed that Cranford was a candidate for vocational rehabilitation and that Cranford could perform jobs such as light security work, radio dispatching, light assembly work, and light driving.   Rice calculated Cranford's earning loss at 64%, and he determined that Cranford had an overall vocational-disability rating of 77%.

 Goodyear raises three issues on appeal.

“In considering those issues, we will apply the following standards:

“ ‘When this court reviews a trial court's factual findings in a workers' compensation case, those findings will not be reversed if they are supported by substantial evidence. § 25-5-81(e)(2), Ala.Code 1975.   Substantial evidence is “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.”  West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).   Further, this court reviews the facts “in the light most favorable to the findings of the trial court.”   Whitsett v. BAMSI, Inc., 652 So.2d 287, 290 (Ala.Civ.App.1994), overruled on other grounds, Ex parte Trinity Indus., Inc., 680 So.2d 262 (Ala.1996).   This court has also concluded:  “The [1992 Workers' Compensation] 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).   However, our review as to purely legal issues is without a presumption of correctness.   See Holy Family Catholic School v. Boley, 847 So.2d 371, 374 (Ala.Civ.App.2002)(citing § 25-5-81(e)(1), Ala.Code 1975).’

“Reeves Rubber, Inc. v. Wallace, 912 So.2d 274, 279 (Ala.Civ.App.2005).”

Hornady Truck Lines, Inc. v. Howard, 985 So.2d 469, 475 (Ala.Civ.App.2007), cert. denied, 985 So.2d 469 (Ala.2007).

 Goodyear first argues that Cranford suffered from a predisposition to DVT and that Cranford's work restrictions were related to risks associated with that predisposition, not the knee injury or even the blood clot.   According to Goodyear, it is not responsible for the payment of workers' compensation benefits for Cranford's disability resulting from his predisposition to DVT.   The only authority Goodyear cites to support its argument are Valtex, Inc. v. Brown, 897 So.2d 332 (Ala.Civ.App.2004), Goodyear Tire & Rubber Co. v. Snell, 821 So.2d 992 (Ala.Civ.App.2001), and Wal-Mart Stores, Inc. v. Kennedy, 799 So.2d 188 (Ala.Civ.App.2001).

Goodyear cites Snell and Kennedy with its admission that “there may be evidence” that Cranford's knee injury caused or contributed to the development of the blood clot.   Goodyear does not discuss either case in its brief.   Both cases involved successive injuries, and in both cases this court stated, “In accident cases, i.e., those involving a sudden and traumatic event, an employee must ․ establish medical causation by showing that the accident caused, or was a contributing cause of, the injury.”   Snell, 821 So.2d at 997;  Kennedy, 799 So.2d at 195.   Neither case supports Goodyear's argument that a disability resulting from, or restrictions associated with, a latent physical condition or a predisposition that was aggravated or made manifest upon a work-related injury are not compensable.

Regarding Brown, Goodyear admits that, unlike this case, Brown related to a nonaccidental injury.   Goodyear nonetheless argues that the following statement regarding causation in nonaccidental-injury cases should apply:  “ ‘[m]erely showing that there is a close spatial or temporal relationship between the injury and the place or time of the claimant's performance of his or her job is not in itself always sufficient to satisfy either of the two prongs of Alabama's workers' compensation nonaccidental injury causation test.’ ”  Brown, 897 So.2d at 335 (quoting Ex parte Trinity Indus., Inc., 680 So.2d 262, 269 (Ala.1996)).   Upon examining Brown, we cannot see that it applies to this case, nor do we see that it supports Goodyear's argument set out above.

We note that the evidence presented to the trial court showed that Cranford's knee injury and surgery contributed to cause him to develop a blood clot, which left scarring on the vein in his leg.   The medical testimony showed that the scar contributed significantly to Cranford's continuing symptoms.   If we were to consider Goodyear's arguments regarding causation, it appears that the evidence in this case supported a finding of medical causation, i.e., that Cranford's accident was a cause or contributing cause of his current condition.   See Snell and Kennedy, supra.

Furthermore, this court has stated:

“An employee is not precluded from collecting workers' compensation benefits even though the worker has a preexisting condition, if the employment aggravates, accelerates, or combines with, a latent disease or infirmity to produce disability.  Dunlop Tire Corp. v. Allen, 659 So.2d 637 (Ala.Civ.App.1995).  ‘A preexisting condition that did not affect the employee's work performance before the disabling injury is not considered, pursuant to the Act, to be a preexisting condition.’  Id., at 639.”

Cox v. North River Homes, 706 So.2d 743, 748 (Ala.Civ.App.1997) (emphasis added).   In Cox, the employee injured his back and was diagnosed with chronic spondylolisthesis.   His doctor explained that “a spondylolisthesis is a condition that begins to develop during adolescence and that may or may not be symptomatic.   If it is symptomatic, it is frequently symptomatic after an injury.  [The doctor] stated that Cox's history was consistent with an injury causing his spondylolisthesis to become symptomatic.”  706 So.2d at 746.   The employer argued, and the trial court's order found, that the employee's condition was “ ‘a long-standing problem’ ” and was not related to his employment and, therefore, not compensable.  706 So.2d at 748.   Relying on the above-stated rule and the fact that the condition had not affected the employee's ability to work, this court found that the trial court had erred in denying benefits for the injury.  Id.

Like the employee in Cox, Cranford had a latent condition that did not affect his work performance, but he became symptomatic upon his injury.   The medical testimony showed that Cranford's injury “aggravate[d], accelerate[d], or combine[d] with, [his] latent disease or infirmity to produce disability.”  Cox, 706 So.2d at 748.   As in Cox, therefore, Cranford is not precluded from recovering workers' compensation benefits for the injury and his resulting disability.   Based on the foregoing, we will not reverse the trial court's decision based on Goodyear's argument regarding Cranford's predisposition to DVT and the compensability of his current condition.

 Next, Goodyear argues that Cranford is not permanently and totally disabled.   Specifically, based on its first argument on appeal, Goodyear maintains that Cranford's restrictions relate only to the DVT and, therefore, that they are not job-related.   In light of our discussion of Goodyear's first argument, we believe the evidence supports a conclusion that Cranford's current condition is job-related and that it may, therefore, properly be considered in determining the extent of Cranford's disability.   Goodyear further argues that, even with the restrictions related to the DVT, the vocational experts testified that Cranford could perform a small category of jobs and that he could be retrained.

This court recently explained:

“The determination of the extent of disability is within the trial court's discretion and cannot be disturbed on appeal if there is evidence to support it.  Dolgencorp., Inc. v. Hudson, 924 So.2d 727, 734 (Ala.Civ.App.2005) (citing Golden Poultry Co. v. Staggs, 660 So.2d 1348, 1352 (Ala.Civ.App.1995)).   With regard to determining whether an employee is permanently and totally disabled, this court has stated:

“ ‘ “The test for total and permanent disability is the inability to perform one's trade and the inability to find gainful employment.”  Fuqua v. City of Fairhope, 628 So.2d 758, 759 (Ala.Civ.App.1993).   See also Liberty Trousers v. King, 627 So.2d 422, 424 (Ala.Civ.App.1993).   A “permanent total disability” is defined as including “any physical injury or mental impairment resulting from an accident, which injury or impairment permanently and totally incapacitates the employee from working at and being retrained for gainful employment.” § 25-5-57(a)(4)d., Ala.Code 1975;  Russell v. Beech Aerospace Services, Inc., 598 So.2d 991, 992 (Ala.Civ.App.1992).’

“Alabama Catfish, Inc. v. James, 669 So.2d 917, 918 (Ala.Civ.App.1995).   See also Boyd Bros. Transp., Inc. v. Asmus, 540 So.2d 757, 759 (Ala.Civ.App.1988) (stating that § 25-5-57(a)(4)d., Ala.Code 1975, ‘requires that the employee be unable to perform his trade or unable to obtain reasonably gainful employment’).”

CVS Corp. v. Smith, 981 So.2d 1128, 1136 (Ala.Civ.App.2007).

The evidence showed that Cranford was restricted from working in a manufacturing environment and that manufacturing was the only work in which he had experience and training.   Furthermore, Cranford's vocational expert, Kessler, testified that Cranford had a 98% or 100% vocational-disability rating.   Based on this evidence, as well as evidence regarding Cranford's age and educational background, the trial court's judgment that he was permanently and totally disabled was supported by substantial evidence.   Accordingly, the trial court's judgment is due to be affirmed as to this issue.

Finally, the parties agree that a clerical error exists in the trial court's calculation of the attorney fee and that the correct award is $46,882.64.   We agree with the parties that the trial court's judgment on this issue is due to be reversed.

Based on the foregoing, we reverse the trial court's judgment with regard to the attorney fee, and we remand the cause with instructions that the trial court enter an award reflecting the parties' agreement.   We affirm the trial court's judgment in all other respects.


THOMPSON, Presiding Judge.

PITTMAN, BRYAN, and THOMAS, JJ., concur.MOORE, J., concurs in the result, without writing.