Brewton Area Young Men’s Christian Assoc., Inc. v. Lanier, [Ms. 2150914, Mar. 17, 2017] __ So. 3d __ (Ala. Civ. App. 2017). Relying upon the stringent standard for appellate review of factual findings and legal determinations after an ore tenus trial of a workers’ compensation claim, the Court of Civil Appeals affirms a judgment of the Escambia Circuit Court finding an employee of the Brewton Area Young Men’s Christian Association entitled to permanent and total workers’ compensation disability benefits.
First, the Court rejected the employer’s challenge to the trial court’s conclusion that the employee proved legal causation of her injury. Ms. *12-14. Citing § 25-5-81(e)(2), Ala. Code 1975 (the reviewing court must affirm the trial court’s finding if it is supported by substantial evidence), the Court noted:
“‘the trial court is the sole judge of the facts and of the credibility of witnesses, and the trial court should accept only that testimony it considers to be worthy of belief.’ “Engineered Cooling Servs., Inc. v. Star Serv., Inc. of Mobile, 108 So. 3d 1022, 1027 (Ala. Civ. App. 2012) (quoting Woods v. Woods, 653 So. 2d 312, 314 (Ala. Civ. App. 2014), citing in turn Ostrander v. Ostrander, 517 So. 2d 3 (Ala. Civ. App. 1987)). “‘This court is precluded from weighing the evidence presented before the trial court.’ “Carquest Auto Parts & Tools of Montgomery, Alabama, Inc. v. Waite, 892 So. 2d 422, 426 (Ala. Civ. App. 2004) (quoting Fryfogle v. Springhill Mem’l Hosp., Inc., 742 So. 2d 1255, 1258 (Ala. Civ. App. 1998), aff’d, 742 So. 2d 1258 (Ala. 1999)). Put another way, “‘[t]he resolution of conflicting evidence is within the exclusive province of the trial court, and this court is forbidden to invade that province upon review.’” Hooker Constr., Inc. v. Walker, 825 So. 2d 838, 842 (Ala. Civ. App. 2001) (quoting Mayfield Trucking Co. v. Napier, 724 So. 2d 22, 25 (Ala. Civ. App. 1998)).
The Court also rejected the employer’s contention that the trial court erred in concluding it received the notice required under § 25-5-78 upon concluding the employer had actual knowledge of the injury which is sufficient pursuant to Ex parte Brown & Root, Inc., 726 So. 2d 601 (Ala. 1998). Ms. *17-20. Because the evidence established that the employer notified its workers’ compensation carrier of the accident via a first report of injury and that an investigation was undertaken, the Court could not perceive how the employer was in any way prejudiced by the absence of written notice of the injury from the employee. Ms. *20.
The Court next rejects the employer’s contention that the trial court erred in treating the employee’s injury as a non-scheduled injury based upon aggravated back pain and an altered gait. Citing Crown Textile Co. v. Dial, 507 So. 2d 522 (Ala. Civ. App. 1987), the Court noted that fractures of the type suffered by the employee had previously been deemed injuries to an employee’s hip, and therefore to a non-scheduled part of the body such that the alleged back pain and altered gait need not be considered.
Next, the Court rejected the employer’s contention that the trial court erred in calculating the employee’s average weekly wage by including retirement plan contributions in its calculations. Ms. *22. Noting the employer never made that argument to the trial court, the Court of Civil Appeals was precluded from considering the issue. Ms. *23.