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Insurance Guaranty Association12/3/1999
NOTICE: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 242-4621), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
OCTOBER TERM, 1999-2000
This is a workers' compensation case.
Alabama Insurance Guaranty Association ("AIGA") appeals from the trial court's denial of its petition to alter, amend, or vacate a judgment. That petition was filed pursuant to § 25-5-57(a)(4)b., Ala. Code 1975, which provides:
"b. ... At any time, the employer may petition the court that awarded or approved compensation for permanent total disability to alter, amend, or revise the award or approval of the compensation on the ground that as a result of physical or vocational rehabil-itation, or otherwise, the disability from which the employee suffers is no longer a permanent total disability and, if the court is so satisfied after a hearing, it shall alter, amend, or revise the award accordingly." The burden of proof is on the employer filing a petition under § 25-5-57(a)(4)b. Mayfield Trucking Co. v. Napier, 724 So. 2d 22 (Ala. Civ. App. 1998), citing Cerrock Wire & Cable Co. v. Johnson, 533 So. 2d 622 (Ala. Civ. App. 1988).
Under the Workers' Compensation Act, the term "employer" includes an insurer (such as AIGA) entitled to the employer's rights and remedies. § 25-5-1(4). After hearing the evidence, the trial court reapplies the test for permanent total disability in order to determine whether the earlier disability is no longer present. Mayfield. "Permanent total disability" is the inability to perform one's trade and to find gainful employment. Mead Paper Co. v. Brizendine, 575 So. 2d 571 (Ala. Civ. App. 1990). "Total disability" does not mean entire physical disability or absolute helplessness. Genpak Corp. v. Gibson, 534 So. 2d 312 (Ala. Civ. App. 1988).
The sole issue on appeal is whether the trial court erred in finding that AIGA had not met its burden of proving that Crump was no longer permanently and totally disabled.
On March 24, 1988, the court entered a judgment in favor of Violet Crump on her workers' compensation claim filed against her former employer, Carbon Hill Manufacturing Company. The court found that Crump was permanently and totally disabled as a result of an on-the-job injury and awarded compensation benefits.
At the time, Carbon Hill Manufacturing Company was insured by Midland Insurance Company. Midland later filed for bankruptcy protection. Pursuant to § 27-42-1, Ala. Code 1975, AIGA assumed the duties and responsibilities of Midland, and it has been paying Crump's workers' compensation benefits and medical expenses.
On December 3, 1996, AIGA petitioned to alter, amend, or vacate the 1988 judgment entered in favor of Crump. In its motion, AIGA alleged that the physical impairments that had rendered Crump disabled in 1988 had improved or become less debilitating, to such an extent that she could work and be retrained for gainful employment.
Following a hearing at which witnesses testified and depositions and other evidence, including videotapes of Crump, were admitted, the trial court denied AIGA's petition. At trial, Dr. Rex Harris testified by deposition on behalf of AIGA. He stated that Crump had been referred to him by AIGA for an independent medical examination and that he had examined her one time. Dr. Harris testified that he had reviewed the medical records provided to him concerning Crump
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