AWW CALCULATION AND PERMANENT AND TOTAL AWARD AFFIRMED
(Note: This opinion was withdrawn and a new opinion was released on January 29, 2010. See blawg summary dated January 30, 2010)
G.A. West & Company v. Ricky McGhee:
On July 17, 2009, the Alabama Court of Civil Appeals released this opinion in which it affirmed the trial court’s finding of permanent and total disability. It also affirmed the trial court’s method for calculating AWW where the plaintiff was injured on his second day of employment. Specifically, the Court held that Ala. Code §25-5-57(b) did not require the use the third method (using the wages of a similarly situated employee) for calculating the plaintiff’s average weekly wage if the result was not fair and just. At trial, the employer presented a wage sheet that indicated (in handwriting at the top) that it was for an unidentified "ironworker," the same position as the plaintiff. The plaintiff rebutted this evidence with the testimony of a co-worker with the same job description who stated that the job required 10 hours per day for 5 days a week for the first month and then 12 hours a day for 7 days a week for the last month. In resolving the contradictory evidence, it was determined that the trial judge may consider all the evidence in arriving at an average weekly wage that is fair and just in such situations where doing otherwise would have an unfair and unjust result.
The Court of Appeals also found that when determining if an individual is permanently and totally disabled the words "gainful employment" mean employment similar in remuneration to that employment held prior to the injury. The Court further held that it was implicit that the employment must be suitable (i.e. compatible to pre-injury occupation, age, education, and aptitude). The trial court heard conflicting evidence concerning the plaintiff’s ability to return to work. The Court of Appeals found that, even where records reveal evidence that the plaintiff was less than permanently and totally disabled, a trial court’s findings that are based on conflicting evidence are conclusive if there is substantial evidence to support the findings.