PERMANENT AND TOTAL AWARD FOR SHOULDER UPHELD
Waters Brothers Contracting, Inc. v. Wimberly:
On March 6, 2009, the Alabama Court of Civil Appeals affirmed the trial court’s decision to award permanent and total benefits for a shoulder injury. The employer based its appeal on the testimony of the treating orthopaedic surgeon who stated that only the employee’s thoracic-outlet syndrome was related to the accident. The surgeon went on to say that the employee’s gout, cervical stenosis, and his degenerative arthritis were not related to the accident. The employer argued that this was important because, if only the thoracic-outlet syndrome is considered, then the only permanent restriction related to the accident was occasional overhead work with the left arm. The employer relied on the fact that a trial court may not consider the effect of adverse health conditions or symptoms not satisfactorily proven to be medically caused by the claimed accident. The Court of Appeals was not convinced that the trial court erroneously relied on the pain and limitations caused by the employee’s gout, degenerative arthritis, and cervical problems. Although the Court acknowledged the testimony of the orthopaedic surgeon, it also noted that the trial court is not bound to accept a physician’s testimony. Rather, the trial court must consider the totality of the evidence. In affirming the trial court, the Court of Appeals considered a second treating physician’s medical records, additional parts of the orthopaedic surgeon’s deposition, and the plaintiff’s own testimony. The Court also pointed out that the fact that the employee went back to work for a short period of time did not disqualify him from being deemed permanently and totally disabled.