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Insurance Guaranty Association12/3/1999
lity to function. Crump's sitting with Mamie Woods was limited to feeding, medicating, and being a companion to Mamie. Also, Crump testified that the work was temporary while her husband was unemployed. Because the resolution of conflicting evidence is within the province of the trial court and because we are prevented from reweighing the evidence, we conclude that there is substantial evidence to support the determination of the trial court. Therefore, the judgment is affirmed.
AFFIRMED.
Robertson, P.J., and Monroe and Crawley, JJ., concur.
Thompson, J., Dissents.
THOMPSON, Judge, Dissenting.
I believe AIGA met its burden of proving that Crump was no longer permanently and totally disabled; therefore, I must respectfully Dissent. My review of the record indicates that AIGA met its required burden by introducing uncontroverted evidence that Crump had been gainfully employed for an extended period of time both as a housekeeper and as a companion/caretaker, since the time of her work related injury .
Section 25-5-57(a)(4)d., of the Alabama Code defines permanent total disability in part as "any physical injury or mental impairment resulting from an accident, which injury or impairment permanently and totally incapacitates the employee from working at and being retrained for gainful employment." ยง 25-5-57 (a)(4)d., Ala. Code 1975. This court has consistently held that " he test for permanent total disability is the inability to perform gainful employment." Sanders v. Green, 726 So. 2d 715, 718 (Ala. Civ. App. 1998) (citing Bidermann Industries Corp. v. Peterson, 655 So. 2d 997 (Ala. Civ. App. 1994)). Evidence of the ability to perform consistent, gainful employment over a sustained period of time is necessarily incompatible with a finding of permanent and total disability.
Because the record reflects that Crump had the ability to, and did, engage in gainful employment, I conclude that AIGA met its burden of proof that Crump was no longer permanently and totally disabled. While I recognize that the jobs Crump held were largely sedentary, the fact remains that she did in fact hold gainful employment and received regularly paid wages for a sustained length of time after her injury . Despite the nature and type of work that Crump performed, the record reflects that she did have the ability to perform gainful employment. Therefore, I would reverse the judgment of the trial court.
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