Alabama Workers' Comp Blawg

  • 13
  • Aug
  • 2010

Another View of the Facts Does Not Support a Reversal

 

Shadescrest Health Care Center v. Holloway

Released August 6, 2010

The Alabama Court of Civil Appeals opined that just because there are two possible ways to view the facts does not mean the Trial Court should be reversed.

Holloway injured her back as the result of a fall at work in January of 2001 and did not seek treatment until October of 2002. After conservative treatment failed Holloway underwent a lumbar fusion in April of 2003. On September 18, 2003 Holloway was placed at MMI and returned to work with restrictions pursuant to an FCE. The FCE indicated Holloway could perform certain task and Shadecrest provided a position that met the restrictions. After two days Holloway called in and said she could not perform the duties and she would not return to work. Vocational evidence was introduced and both experts opined that Holloway was a candidate for vocational rehabilitation if her pain was managed. Holloway testified that her pain prevented her for working and performing normal activities of daily living. The Trial Court felt Holloway’s testimony was credible and that Holloway was not a candidate for vocational rehabilitation. This lead to a permanent and total disability verdict.

On appeal, Shadescrest argued that substantial evidence supported its theory that Holloway was not permanently and totally disabled and she was a candidate for vocational rehabilitation. Shadescest pointed to the fact that Holloway stated in her vocational report that she did not return to work because a lawyer told her not to. The Court of Appeals stated that the mere existence of evidence that might serve as a basis to question Holloway’s credibility does not support a reversal of the Trial Court’s finding of fact.

Shadescrest also argued that the FCE supports a finding that Holloway can perform light duty and vocational testimony supports a finding that Holloway is a candidate for vocational rehabilitation.

The Court of Appeals stated that their was evidence to support a finding that Holloway could not perform the light duty provided and that she was not a candidate for vocational rehabilitation. They pointed out that just because there was evidence to support a contrary finding of fact, that a reversal of the Trial Court will only be given if the evidence does not support the Trial Court’s view of the facts.

Of note, the Court of Appeals not did not address the argument that Holloway could not be determined permanently and totally disabled because she refused reasonable accommodation or vocational rehabilitation pursuant to §25-5-57(a)(4)d. The Court of Appeals held that Shadescrest did not make this argument at trial. Therefore, it could not be considered in the appeal. Judge Thomas concurred in the opinion but said he felt Shadescrest did argue this defense at trial to allow for review in the appeal.

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