Opinion
No. 2020093.
Decided December 12, 2003.
Appeal from Washington Circuit Court (CV-00-23), Harold L. Crow, J.
Tracy P. Turner of Johnstone, Adams, Bailey, Gordon Harris, L.L.C., Mobile, for Appellant.
Halron W. Turner and Marc E. Bradley of Turner, Onderdonk, Kimbrough Howell, P.A., Chatom, for Appellee.
On Applications for Rehearing
The opinion of this court issued August 8, 2003, is withdrawn, and the following is substituted therefor.
I. Facts and Procedural History
Charles E. Malley ("the worker") was employed by Musgrove Construction, Inc. ("the company"), as a journeyman lineman. The company constructs and maintains power lines. The worker's job required him to work on and near energized power lines. On May 27, 1998, the worker was connecting a jumper tap line to the main line neutral from the bucket of a bucket truck approximately 35 feet above the ground. He successfully connected the jumper tap line on one end with a wooden-handled tool he referred to as the "squeeze tool." However, while using the tool to connect another portion of the jumper tap line to the neutral line, the worker was electrocuted by 7200 volts of electricity.
After being electrocuted, the worker chose to avoid further electrocution by unhooking his safety lanyard and exiting the bucket. He then fell to the ground, landing on his right shoulder and head. The worker suffered electrical burns over 12% of his body. The worker also suffered a torn rotator cuff in his right shoulder; headaches and dizziness from striking his head on the ground; and carpal tunnel syndrome, which can manifest itself as a result of electrocution, in his right hand He also developed posttraumatic stress disorder and depression as a result of his injuries.
The worker sued the company, seeking workers' compensation benefits. After a trial, the trial court determined the worker to be 100% permanently, totally disabled and awarded benefits accordingly. The company appeals, arguing that, pursuant to Ala. Code 1975, § 25-5-51, the worker's willful misconduct in violating company safety rules requiring him to wear rubber gloves while working within reach of an energized power line and to wear a safety harness and lanyard while in the bucket precludes an award of compensation or, at least, precludes an award of 100% permanent, total disability based upon the combination of the worker's restrictions caused by both his electrical burns and the injuries he suffered as a result of his fall from the bucket. In addition, the company argues that the trial court erred by refusing to order the worker to submit to a functional capacities evaluation ("FCE"), that the trial court erred by failing to admit certain testimony, and that the award of 100% permanent, total disability is not supported by substantial evidence.
II. Standard of Review
Our review of this case is governed by the Workers' Compensation Act, Ala. Code 1975, § 25-5-1 et seq., which states, in pertinent part: "In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence." Ala. Code 1975, § 25-5-81(e)(2). Therefore, this court "will view 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, 269 (Ala. 1996). Further, a trial court's finding of fact is supported by substantial evidence if it is "supported by `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.'" Ex parte Trinity Indus., 680 So.2d at 269 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989), and citing § 12-21-12(d)). Our review of legal issues is without a presumption of correctness. Ala. Code 1975, § 25-5-81(e)(1);see also Ex parte Trinity Indus., 680 So.2d at 268.
III. Whether the Trial Court Erred by Failing to Order the Worker to Undergo a Functional Capacities Evaluation
The company argues that the trial court erred by failing to order the worker to undergo an FCE. The company had requested that the worker undergo an FCE; the worker refused. The company then filed a motion to compel the worker to undergo an FCE with the trial court. The company relied on both Ala. Code 1975, § 25-5-77(b), and Rule 35(a), Ala. R. Civ. P., in support of its motion. After conducting a hearing on the motion, consulting written briefs in support and in opposition of the motion, and considering excerpts of the deposition testimony of four of the worker's physicians, the trial court denied the motion without explanation.
Because the company based the motion on both Rule 35(a) and § 25-5-77(b), we can affirm the trial court only if its denial of the motion was proper under both bases. If the trial court's denial of the motion is improper under either basis, we must reverse. As explained in the following discussion, there was insufficient evidence before the trial court for it to determine, under § 25-5-77(b), whether the company's motion to compel the FCE should have been granted. Therefore, we need not consider whether the trial court's denial of the company's motion to compel was proper under Rule 35(a). Accordingly, we reverse the judgment of the trial court on that issue and remand for further proceedings as detailed below.
The company argues on appeal that Beatrice Foods Co. v. Gray, 431 So.2d 1299 (Ala.Civ.App. 1983), requires reversal of the trial court's denial of the company's motion to compel the FCE. In Beatrice Foods, this court reversed a trial court's judgment determining that the worker was permanently and totally disabled on the basis that the trial court had erred by refusing to compel the worker to undergo an additional medical examination and a vocational assessment. Beatrice Foods, 431 So.2d at 1300. The worker had injured her back at work, and the employer sought an additional medical examination to determine if the worker had injured a disc in her back and a vocational assessment to determine the worker's vocational status. Id. Two of the worker's physicians indicated that they believed the worker had injured a disc in her back but that they were unable to confirm their suspicions; one of those physicians suggested that the worker see a physician in Mobile who could administer a new screening test for disc injuries. Id. One of the worker's physicians stated that he thought the worker could do jobs other than the one in which she was injured; another physician recommended that the worker be evaluated at a vocational-rehabilitation agency. Id. The worker had agreed to both examinations. Id. However, when the company requested that the trial court order the evaluations, the trial court denied the company's motion. Id.
This court reversed the decision of the trial court, noting that Ala. Code 1975, § 25-5-77(b), requires a worker to undergo medical examinations at all reasonable times by a physician of the company's choosing and that § 25-5-77(c) requires a worker to undergo vocational rehabilitation if the company requests that the worker do so.Id. The court pointed out that if a worker unreasonably refuses to submit to either a medical examination or vocational rehabilitation, workers' compensation benefits must be suspended. Id. Although the court noted that the question whether a worker's refusal to submit to a medical examination or vocational rehabilitation is reasonable is a question of fact, the court reversed the trial court's decision, commenting that the worker had not refused the treatment and, therefore, there was no reasonable refusal upon which the court could base its decision to deny the company's requests. Id.
Unlike the worker in Beatrice Foods, the worker in the present case did not consent to the FCE requested by the employer; therefore, in that particular respect, Beatrice Foods is distinguishable. However, the basic law discussed in Beatrice Foods is still applicable. The worker's refusal to submit to the FCE must be reasonable. See Beatrice Foods, 431 So.2d at 1300.
"The threshold determination of the reasonableness of the [company's] request, and thus of the reasonableness of any refusal of the [worker] to submit to an examination, is `a question of fact for the trier of fact.'"Jimoco, Inc. v. Smith, 777 So.2d 716, 718 (Ala.Civ.App. 2000) (quotingHealth Care Auth. of Huntsville v. Henry, 600 So.2d 324, 327 (Ala.Civ.App. 1992)). This court may not reverse the trial court's determination on this question of fact if the trial court's finding is supported by substantial evidence. Id. In addition, when a trial court does not make a specific finding of fact, this court must presume it would have made those findings necessary to support its judgment if those findings would be supported by evidence contained in the record. Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala. 1992).
The present case presents a dilemma. The trial court held a hearing on the company's motion to compel the worker to submit to an FCE. However, at that hearing, the trial court took no testimony and listened only to the arguments of counsel. The only evidence presented to the court was the prescription for an FCE by one of the worker's physicians and excerpts of the depositions of four of the worker's physicians. Those deposition excerpts indicated that the physicians all thought that either an FCE or vocational retraining might be appropriate for the worker but that none of the doctors had indicated that they had actually ordered an FCE during their treatment of the worker. Therefore, we cannot presume that the trial court made a factual finding that the company's request for the FCE was unreasonable or that the worker's refusal to submit to the FCE was reasonable because the trial court was presented no evidence from which to make such a determination. Accordingly, we must reverse the trial court's denial of the company's motion to compel the worker to undergo an FCE and remand the case for the trial court to take evidence on the reasonableness of the company's request for an FCE and the worker's refusal to submit to the FCE as prescribed by his physician.
However, the reversal of this particular issue does not resolve all of the remaining issues in this case. We need not address whether the trial court's determination that the worker is 100% permanently and totally disabled is supported by substantial evidence at this time because, if the trial court determines on remand that the worker's refusal to submit to the FCE is not reasonable and thus requires him to submit to an FCE, the vocational-rehabilitation counselors or the worker's physicians may wish to revise their opinions based upon information gleaned during the FCE. However, because the issue whether the worker committed willful misconduct has been decided by the court and because the results of any FCE that might result from our remand will not impact that determination, we will address the company's arguments concerning that issue on appeal. In addition, we will address the company's arguments concerning testimony the trial court excluded.
IV. Did the Worker Commit "Willful Misconduct"?
The company argues that the trial court erred by determining that the worker's failure to wear his rubber gloves and his safety lanyard was not willful misconduct precluding an award of compensation pursuant to § 25-5-51. That section reads, in pertinent part, as follows:
"[N]o compensation shall be allowed for an injury or death caused by the willful misconduct of the employee, by the employee's intention to bring about the injury or death of himself or herself or of another, his or her willful failure or willful refusal to use safety appliances provided by the employer. . . ."
The burden of proof on the issue of a worker's willful misconduct is on the employer. Ala. Code 1975, § 25-5-36.
Both our supreme court and this court have considered the application of the "willful misconduct" bar in several cases. One of the earlier cases that discussed the application of the willful-misconduct bar adopted the view that "the mere violation of rules, when not willful or intentional, is not `willful misconduct' within the meaning of the law."Ex parte Woodward Iron Co., 212 Ala. 220, 225, 102 So. 103, 107 (1924). The court further explained that "the phrase `willful misconduct,' as used in the [Workmen's Compensation Act], includes all conscious or intentional violations of definite law or definitely prescribed rules of conduct, as to which obedience is not discretionary, as contradistinguished from inadvertent, unconscious, or involuntary violations thereof." Ex parte Woodward Iron, 212 Ala. at 223, 102 So. at 105-06.
As questions arose as to what exactly constituted a "willful" violation of a law or rule, the supreme court explained that "[t]he test is not the doing of an act for the purpose and with the specific intent of violating a rule, but the willful and conscious doing of the act which is in violation of the reasonable rule known to the [worker]." Sloss-Sheffield Steel Iron Co. v. Greer, 216 Ala. 267, 270, 113 So. 271, 273 (1927). The court explained that a worker may be guilty of willful misconduct without having an intent to break the rule, that is, without having "thought or deliberated as to the rule and its breach." Greer, 216 Ala. at 269, 113 So. at 273. Specifically, the court commented that an employer, to establish that a worker was guilty of willful misconduct, should show:
"that the [worker] intentionally did an act which is in violation of a known and reasonable rule, that was known to the [worker], and that the act was with a knowledge and appreciation on the part of the [worker], of what that violation involved, and the natural and probable result of the misconduct in the premises."
Id. The court summed up its discussion by stating that "[i]f, then, the [worker] knows the rule, and the natural, probable, and serious result of its violation and with such knowledge does the act of violation, such act is deliberately done and is willful misconduct." Greer, 216 Ala. at 270, 113 So. at 273.
The supreme court further explained the concept of a "willful" violation of a law or rule in Sloss-Sheffield Steel Iron Co. v. Nations, 236 Ala. 571, 183 So. 871 (1938). The court first commented thatGreer had held that the employer need not show that the worker "was thinking of the rule at the time, and entertained the specific intent to violate it." Nations, 236 Ala. at 575, 183 So. at 873. The court then went further to define "willful," stating:
"`"Willful," as used in the statute, imports something more than a mere exercise of the will in doing the act. It imports a wrongful intention. An intention to do an act that [the worker] knows, or ought to know, is wrongful or forbidden by law. It involves the idea of a premeditation and determination to do the act, though known to be forbidden.'"
Id. (quoting King v. Empire Collieries Co., 148 Va. 585, 590, 139 S.E. 478, 479 (1927)). The court further noted that the Virginia court had commented that a willful failure or refusal involved more than mere ignorant failure to comply with a rule or statute. Id. Finally, the court held that "what amounts to a willful failure or refusal to comply with a [rule or law] is dependent upon the circumstances, and [is] to be determined upon the particular facts of each case." Nations, 236 Ala. at 575, 183 So. at 874.
More recent cases involving application of the willful-misconduct bar have only once resulted in a denial of workers' compensation benefits.See Ex parte Bowater, 772 So.2d 1181 (Ala. 2000) (reversing the Court of Civil Appeals' reversal of a trial court's judgment denying compensation to a worker injured by a machine that he admittedly failed to "lock out" as required by the employer's rules). In two other cases, this court determined that the employer had failed to prove that the worker was guilty of willful misconduct. See NeSmith v. H A Indus. Painting, Inc., 775 So.2d 223 (Ala.Civ.App. 2000) (reversing the trial court's denial of benefits because the employer had failed to prove that the worker was guilty of willful misconduct), and Town of Addison v. Cooke, 689 So.2d 184 (Ala.Civ.App. 1997) (affirming a trial court's award of benefits because the employer had failed to prove that the worker was guilty of willful misconduct). The most recent case to mention the willful-misconduct bar fails to discuss its application at length. See Ex parte Holton, [Ms. 1012143, June 13, 2003] ___ So.2d ___, ___ (Ala. 2003). However, that opinion does give a definition of the word "willful": "'The usual meaning assigned to "willful,". . . is that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences.'" Ex parte Holton, ___ So.2d at ___ n. 4 (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 344 at 213 (5th ed. 1984)).
Thus, to summarize over 75 years of law on the willful-misconduct bar, a worker commits willful misconduct involving a violation of an employer's rule or regulation when the worker knows that rule, he understands the consequences of disobeying that rule, he deliberately chooses to disobey the rule, and his choice to disobey that rule is unreasonable under the circumstances, as explained in Ex parte Holton, ___ So.2d at ___ n. 4. With those principles in mind, we will now consider whether the trial court's determinations that the worker was not guilty of willful misconduct when he failed to wear his rubber gloves and when he removed his safety lanyard are supported by substantial evidence.
A. Whether the Worker's Failure to Wear Rubber Gloves Was Willful Misconduct
The company argues that the worker was guilty of willful misconduct because he removed his rubber gloves while working within reach of an energized line. The company's safety manual contains the following rule concerning the use of rubber gloves by lineman:
"31-3 USE AND CARE OF RUBBER GLOVES
"a. Properly rated rubber gloves with protectors must be worn by employees when:
"1. Working on any structure within reach of energized conductors or conductive equipment, including those below normal neutral or lowest neutral position."
The company argues that the worker was clearly within reach of an energized line while he was completing his work on the neutral line. Thus, the company contends, the trial court's determination that the worker's failure to use the rubber gloves was not willful misconduct is not supported by substantial evidence. The worker argues that the trial court correctly concluded that he was not guilty of willful misconduct because, he says, the company failed to prove that he was aware of the company rule, that he was within reach of an energized line when he was working on the main line neutral, and that the electrocution was caused by his failure to wear the rubber gloves.
The worker testified that he wore his rubber gloves as he placed the safety appliances, a rubber gut and a rubber safety blanket, over the energized line. He said he then lowered the bucket to the neutral line on which he would be working and removed his rubber gloves. He said that he had never been given a safety manual by the company; the company was unable to locate a signed form in the worker's personnel file indicating that the worker had received the safety manual. The worker did testify that he was aware of an industry standard that required linemen to wear their rubber gloves if they were within reach of an energized line. However, he said that he did not think he was that close to the energized line while he was working on the neutral line, and he stated that, if he had thought he were within reach of the energized line, he would have worn his rubber gloves. The worker testified that the tool he was using when he was electrocuted appeared in pictures to be approximately two feet from the energized line, but that he thought that he was farther from the line than the pictures appeared to show.
The worker testified and pictures of the accident scene show that the power line on which the worker was working had two neutral lines. According to the worker, the "old" neutral line had recently been lowered so that the lineman could install a "new" neutral line. The "new" neutral line was approximately three feet below the energized line, while the "old" neutral line was approximately four to five feet below the energized line. Unless otherwise indicated, all references to the neutral line are to the "new" neutral line.
When explaining the actual electrocution, the worker opined that the electricity entered his body through his right side or perhaps his right arm. He showed the trial court all of his scars and the lack of any burn injuries to his hands. Although the company presented testimony tending to indicate that electricity does not always leave an entrance wound, it presented no evidence requiring a determination that the electricity entered the worker's body through his hands.
The trial court found specifically that the worker had never received the safety manual containing the rule requiring that rubber gloves be worn when a lineman was within reach of an energized line. The trial court also found that the company had failed to prove that the worker had been within reach of an energized line when he was electrocuted. Finally, the trial court found that the company had failed to prove that the worker's electrocution injuries were caused by his failure to wear the rubber gloves.
In light of the evidence presented, we need not consider whether the worker's admitted knowledge of the industry standard in accord with the company's rule calls into doubt the trial court's finding that the worker did not have knowledge of the safety rule. We agree that the conflicting evidence on the distance between the worker and the energized line would support a determination that the company had not proven that the worker was "within reach" of the energized line as he worked on the neutral line. Perhaps more importantly, the trial court's determination that the company failed to prove that the worker's failure to wear rubber gloves actually caused the electrocution is supported by the evidence, or, more specifically the lack of evidence, of the entrance wound on the worker's body. Thus, we affirm the trial court's determination that the worker's failure to wear rubber gloves did not amount to willful misconduct.
B. Whether the Worker's Removal of the Safety Lanyard Amounts to Willful Misconduct
The company argues that the worker's removal of his safety lanyard so that he could exit the bucket also amounts to willful misconduct under the statute. The evidence at trial was undisputed that the worker had been instructed by his supervisor to wear his safety harness and safety lanyard while working in the bucket. The worker testified that he knew he was required to wear the harness and lanyard any time he was working in the bucket. He then testified that he purposefully unhooked his lanyard for the express purpose of exiting the bucket. Thus, the company concludes, the worker admitted willful misconduct.
The trial court specifically found that the worker did not willfully or intentionally fail to use a safety lanyard. The judgment recites the fact that the worker was wearing the harness and lanyard at all times during his work in the bucket until he was electrocuted. At that time, the trial court found, the worker removed the lanyard to avoid continued electrocution, which, according to the trial court, the worker perceived would result in his death. The trial court concluded that the worker's decision to remove his lanyard was not willful misconduct.
At trial, the worker testified that he had been wearing his harness and lanyard on the day of the accident. He described the events leading up to the electrocution by reciting that he retrieved the materials and tools required for his job, that he entered the bucket and secured his safety harness and lanyard, and that he then raised the bucket to the power lines above. He said that, after the electricity exited his body through his foot, he leaned back and felt another shock. He then attempted to crawl under the neutral line on which he was working; he said that his lanyard "caught him," so he then unhooked it so that he could pull himself out of the bucket because the bucket was "hot." He stated that he thought if he remained in the bucket he would die.
Unlike our decision to affirm the trial court's conclusion that the worker's failure to use his rubber gloves was not willful misconduct, our decision on this allegation of willful misconduct is much more difficult. There is no question that some of the worker's injuries resulted from his 35-foot fall; therefore, causation for those injuries is proven. The worker himself admitted knowledge of the rule and, in fact, obeyed the rule up until he felt that his life was threatened by remaining in the bucket. Thus, the worker knew the rule and knew that, by unhooking his lanyard, he would be exposed to the danger of falling from the bucket. However, the trial court apparently concluded that the worker's decision to jump from the bucket in the face of his perception that he would be further electrocuted or killed was not unreasonable under the circumstances presented. The trial court's conclusion is supported by the testimony at trial. The worker's choice to exit the bucket was made quickly and in fear of further danger of electrocution. Therefore, we affirm the trial court's determination that the worker's removal of his safety lanyard was not willful misconduct precluding an award of benefits.
V. Whether the Trial Court Wrongfully Excluded Certain Testimony
The company argues that the trial court erred by refusing to admit certain testimony offered at trial. First, the company argues that the trial court wrongfully excluded the testimony of Wayne McCart, the worker's supervisor, concerning McCart's ability to work outdoors in the heat after having suffered electrical burns on approximately 30% of his body. Secondly, the company argues that the trial court wrongfully excluded McCart's testimony concerning his opinion of how the accident that injured the worker occurred. Finally, the company challenges the trial court's exclusion of the testimony of Dean Hills, the company's safety director, who would have testified about whether the worker's conduct in removing his rubber gloves and in unhooking his safety lanyard were violations of the company's safety rules and about his opinion of how the accident that injured the worker occurred.
A. Whether the Trial Court Erred by Excluding McCart's Testimony Concerning His Ability to Work in Spite of His Electrocution Injuries
The company, during its direct examination of Wayne McCart, the worker's supervisor, attempted to elicit from McCart testimony concerning McCart's electrocution injuries and his ability to work as a lineman in the heat since suffering those injuries. The worker objected to that testimony on the grounds that it was irrelevant to the issue whether the worker was able to work. The trial court sustained the objection, commenting that the comparison of the worker to McCart would be "the equivalent of one person having an automobile accident and another person having an automobile accident and comparing injuries." The trial court also commented that the court had not been presented with any medical testimony concerning McCart.
On appeal, the company urges us to reverse the trial court's determination that the proffered testimony was irrelevant. The company contends that McCart's testimony concerning his ability to work outdoors in the heat and to do heavy manual labor is relevant to the issue whether the worker is precluded from those activities on the basis of his injuries. "Relevant evidence" is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rule 401, Ala. R. Evid. "Rulings on the materiality, relevancy, and remoteness of evidence are matters resting within the discretion of the trial court. Such rulings will not be disturbed . . . unless there is a showing that the court's ruling was a gross abuse of discretion." Moseley v. Lewis Brackin, 583 So.2d 1297, 1300 (Ala. 1991); see also AmSouth Bank, N.A. v. Spigener, 505 So.2d 1030 (Ala. 1986); accord Rule 401, Ala. R. Evid., Advisory Committee's Notes ("Relevancy remains a question over which the trial court has wide discretion.").
We cannot agree with the company that McCart's testimony that he was electrocuted and was burned over 30% of his body and yet was able after suffering his injuries to work outdoors and in the heat doing the same job as the worker is relevant to the issue whether the worker can perform his job as a journeyman lineman. Although we need not discuss the testimony of the worker's various physicians at length, we note that each of them testified as to the worker's limited abilities in some way, including specifically his ability to work in the heat, his ability to work at heights, and his ability to stand for long periods of time. As the trial court noted when discussing the worker's objection to McCart's proffered testimony, the trial court had no information concerning what, if any, restrictions McCart's physicians had assigned to him, no information on the degree of the burns McCart suffered, and no information on the level of pain experienced by McCart after his injury. We agree with the trial court's conclusion that to permit McCart's testimony on the issue would be to compare two people and their responses to injury without complete information on one of those persons and his injury. The trial court concluded that such testimony would not serve to make any fact at issue more or less probable and therefore excluded the testimony on the ground that it was not relevant. We see no "gross abuse of discretion," and we affirm the trial court's evidentiary ruling as to McCart's testimony concerning his own injury.
B. Whether the Trial Court Erred by Excluding McCart's Testimony Regarding His Opinion of How the Worker's Accident Occurred
The company also argues that the trial court erred by excluding McCart's testimony regarding his opinion of how the worker was injured. The evidence in the record clearly indicates that McCart heard the arcing of electricity as he sat in his pickup truck completing paperwork, but that he did not see the electrocution actually occur. However, at trial, the company attempted to elicit testimony from McCart about his opinion, based on his investigation of the scene of the accident, of how the worker was electrocuted. The worker objected, arguing, among other things, that McCart was not an expert in electrical-accident reconstruction. The trial court sustained that objection. In addition, the trial court itself questioned McCart on whether he actually saw the electrocution or observed the worker at all during the accident, other than when he saw the worker climb out of the bucket; McCart admitted that his testimony was based not on an observation of the accident but on his viewing of the accident scene after the accident.
The company argues that McCart could state his opinion even if he were not qualified as an expert because Rule 701, Ala. R. Evid., permits opinion testimony by lay witnesses. That Rule 701 permits opinion testimony by lay witnesses is indeed true. However, a lay witness may only testify as to his or her opinion if the opinion is "rationally based on the perception of the witness" and will be "helpful to a clear understanding of the witness's testimony or the determination of a fact in issue." Rule 701. The Advisory Committee's Notes on the first portion of Rule 701, which requires the opinion to be rationally based on the witness's perception, indicate that "[t]his is no more than a restatement of the `firsthand knowledge rule,' found in Ala. R. Evid. 602, tailored to opinions. No lay witness may give an opinion based upon facts that the witness did not actually observe." McCart's testimony, while based on the view of the area in which the accident occurred, was not based on firsthand knowledge of the conditions at the time of the electrocution. He admitted that he did not witness the actual electrocution but that he did see the worker as he exited the bucket and fell to the ground. McCart testified that he took several photographs of the accident scene. McCart said he took some photographs from the ground, before the bucket was moved, and that he then took other photographs once the bucket had been lowered and raised to the approximate level at which it had been when the worker was working on the line. The trial court could have determined that McCart's opinion of what happened was based on speculation produced by McCart's viewing of the scene after the electrocution and not on actual firsthand knowledge. Accordingly, because the company has not shown a gross abuse of the trial court's discretion, we affirm the trial court's exclusion of this proffered testimony as well.
C. Whether the Trial Court Erred by Excluding Hills's Testimony Regarding His Opinion of How the Worker's Accident Occurred
The company also argues that the trial court erred by excluding the proffered opinion testimony of the company's safety director, Dean Hills. Hills, while being questioned as part of an offer of proof on whether he believed that the worker had violated the company's safety rules, testified that, in his opinion, the accident that injured the worker would not have occurred if the worker had been wearing his rubber gloves. The worker objected to that testimony, and the trial court sustained the objection.
The company argues, as it did in the case of McCart's testimony on causation, that Hills should have been permitted to testify as to his opinion on the cause of the worker's accident. As discussed above, in general, opinion testimony may be permitted if a lay witness has firsthand knowledge of the facts upon which he bases that opinion. Rule 701. The worker contends that the trial court properly sustained the objection because Hills's knowledge as to the cause of the accident was not firsthand
Hills testified that he arrived in Alabama to view the accident scene the day following the accident. Therefore, it is clear that he did not witness the actual accident. He did view, from the ground, the site of the accident; he said the rubber blanket and gut and the pop tool were in the same locations as they were the day before because he had instructed McCart not to move anything. He did not view the accident scene from the bucket; in fact, the bucket truck, which he did inspect, was parked at McCart's house. As was the case with McCart's proffered testimony regarding the cause of the accident, the trial court could have determined that Hills's testimony was not based on firsthand knowledge of the accident but was instead speculation based on a later view of the accident scene from the ground, after removal of the bucket truck. Therefore, because the company has not demonstrated a gross abuse of the trial court's discretion, we affirm the trial court's exclusion of Hills's testimony on his opinion of the cause of the worker's accident.
D. Whether the Trial Court Erred by Excluding Hills's Testimony on Whether the Worker's Conduct Violated the Company's Safety Rules
Finally, the company argues that the trial court erred by excluding Hills's testimony on whether the worker's conduct violated the company's safety rule requiring the use of rubber gloves. The company attempted to elicit from Hills testimony to the effect that the worker's failure to wear rubber gloves was a violation of the company's safety rule pertaining to the use of rubber gloves because, according to Hills, the worker was "within reach of an energized conductor." The worker objected to this line of questioning. The trial court sustained the objection.
As noted above, Hills's opinion testimony would generally be admissible if that opinion were based on firsthand knowledge and if it were helpful to the determination of a fact in issue. Rule 701. Hills testified that he only viewed the scene of the accident from the ground on the day after the accident. He testified that he had not measured the distance between the pop tool, which he said remained in what he believed to be the same position it had been in at the time of the accident, and the energized line. The trial court could have concluded that Hills's testimony was not based on firsthand knowledge and was instead a speculative guess based on a later viewing, from the ground, of the accident scene. The company has not demonstrated that the trial court's decision to exclude this testimony as either being not based on firsthand knowledge or as not being helpful to a determination of the facts in issue was a gross abuse of its discretion; we affirm as to this issue.
VI. Conclusion
We have concluded that the trial court's denial of the company's motion to compel the worker to submit to an FCE cannot be upheld because the trial court was presented no evidence from which it could determine that the worker's refusal to submit to the FCE was reasonable. Therefore, the trial court's decision as to that issue is reversed, and the cause is remanded to the trial court for that court to hold an evidentiary hearing within 90 days from the date of this opinion on the issue whether the worker's refusal to submit to the requested FCE was reasonable.
If the trial court, based on the evidence presented, determines that the worker's refusal to submit to the requested FCE is reasonable, the trial court shall make a return to this court within 120 days from the date of this opinion so indicating. At that point, we will permit the company and the worker to rebrief, if they so request, the FCE issue.
If the trial court, based on the evidence presented determines that the worker's refusal is unreasonable, an FCE shall be ordered and this court shall be so notified. When the results of any FCE conducted are compiled, any experts (medical or vocational) who wish to revise their opinions based upon the results of the FCE may do so, and the trial court shall, if necessary, take additional testimony or consider supplemental depositions in determining the worker's disability rating. Any appeal from that determination shall be a new and separate appeal.
Due to our reversal of the FCE issue, we do not address the company's argument regarding the trial court's determination that the worker was permanently and totally disabled. As to the other challenged aspects of the trial court's judgment, we affirm.
OPINION OF AUGUST 8, 2003, WITHDRAWN; OPINION SUBSTITUTED; APPLICATIONS OVERRULED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.
Thompson and Pittman, JJ., concur.
Yates, P.J., concurs in the result, without opinion.
Murdock, J., dissents, with opinion.
As the main opinion notes, the employer's motion requesting that the trial court order the employee to undergo an FCE relied upon both § 25-5-77(b), Ala. Code 1975, and Rule 35(a), Ala. R. Civ. P., as separate, and independent, grounds for the relief requested. In an appropriate case, either provision could provide the basis for requiring an employee to undergo an FCE. Therefore, if the motion of an employer seeking an FCE is meritorious under either § 25-5-77(b) or Rule 35(a) that motion is due to be granted.
The trial court denied the employer's motion — and therefore necessarily denied relief under both § 25-5-77(b) and Rule 35(a) — without explanation. The question presented, therefore, is whether the trial court's decision is unsupported by the evidence under either § 25-5-77(b) or Rule 35(a), or is plainly and palpably wrong.
Insofar as the employer's motion was based upon § 25-5-77(b), I reiterate what I stated in my special writing in Ex parte Alabama Power Co.:
"Whether the particular examination at issue . . . should be allowed to go forward, is not dependent, solely or per se, on whether the authorized treating physician under § 25-5-77(a), Ala. Code 1975, has prescribed it. Rather, the test for whether an examination prescribed by the authorized treating physician, or requested by the employer, may be conducted is whether the test, as so prescribed or requested, is `reasonable.' Section 25-5-77(a) contemplates the provision of `reasonably necessary medical and surgical treatment and attention, physical rehabilitation,' etc. (emphasis added [in Ex parte Alabama Power Co.]). Section 25-5-77(b) requires an injured employee to `submit to examination by the employer's physician at all reasonable times.' (Emphasis added.) Moreover, § 25-5-77(b) states that if an injured employee `refuses to comply with [a] reasonable request for examination, or refuses to accept the medical service or physical rehabilitation, which the employer elects to furnish,' the right to compensation under the Act shall be suspended. (Emphasis added [in Ex parte Alabama Power Co.].). . . .
". . . .
". . . [T]he examination in question is one to be conducted under the provisions of § 25-5-77(a) and/or § 25-5-77(b), and the question therefore is . . . whether the examination . . . prescribed by the physician and requested by the employer . . . is reasonable."
Ex parte Alabama Power Co., [Ms. 2011231, May 2, 2003] ___ So.2d ___, ___ (Ala.Civ.App. 2003) (Murdock, J., concurring in the result) (final emphasis added). Accordingly, we must assume in the present case that the trial court determined that the FCE prescribed by Dr. Frye on February 14, 2001, was not reasonably necessary. See, e.g., Ex parte Walters, 580 So.2d 1352, 1354 (Ala. 1991) ("[W]here the trial court does not make specific findings of fact, it will be assumed that the trial court made those findings that were necessary to support its judgment, unless the findings would be clearly erroneous.").
In Ex parte Alabama Power Co., I concurred in the result reached by the majority in favor of the employer because the evidence presented in that case supported the conclusion that the physician's prescription of the examination at issue therein (a nonvideotaped FCE) was reasonable. However, unlike the view expressed in the main opinion, my conclusion after carefully reviewing the record in this case is that the record, including the procedural and factual history associated with this case, does provide substantial support for the trial court's determination that the FCE prescribed by Dr. Frye was not reasonably necessary. In other words, I cannot conclude that the trial court was plainly and palpably wrong in deciding that Dr. Frye's prescription of an FCE on February 14, 2001, was not reasonably necessary. I am therefore bound to vote in favor of upholding the trial court's refusal to require an FCE to the extent the employer sought the FCE based upon § 25-5-77(b).
Specifically, I concluded in Ex parte Alabama Power Co. that there was not substantial evidence in the record to support a finding that the examination was unreasonable.
Nor can I find from the record before us that the trial court abused its discretion in denying the employer relief under Rule 35(a). In any event, I note that in its brief to this court the employer fails to make a specific argument based upon Rule 35(a) to the effect that the trial court abused its discretion in denying the employer's motion to compel an FCE.
Based on the foregoing, I respectfully dissent. I would proceed at this juncture to address the issue not addressed by the main opinion, namely, whether the evidence supports the trial court's determination that the worker was permanently and totally disabled.