Professional Education Services Group, LLC v. Richard A. Ford

Rel: February 13, 2026

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) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2025-2026
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Professional Education Services Group, LLC

v.

Richard A. Ford

Appeal from Madison Circuit Court
(CV-21-900324)

BOWDEN, Judge.

Professional Education Services Group, LLC ("PESG"), appeals

from a judgment of the Madison Circuit Court ("the circuit court") finding

Richard A. Ford to be permanently and totally disabled and awarding

him compensation for "the remainder of [his] natural life." We affirm the

circuit court's judgment in part and reverse it in part.
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Procedural History

Ford filed a complaint against PESG and fictitiously named

defendants on March 9, 2021, and he filed an amended complaint against

PESG and Zurich American Insurance Company ("Zurich") on March 6,

2024. In his amended complaint, Ford alleged that he had sustained an

injury to his left shoulder as the result of a fall that occurred during the

course and scope of his employment with PESG. Zurich was eventually

dismissed from Ford's action, and Ford did not substitute a named

defendant for any of the fictitiously named defendants, leading to their

dismissal as defendants, see Rule 4(f), Ala. R. Civ. P., and leaving PESG

as the only defendant.

Before trial on Ford's amended complaint, the parties stipulated to,

among other things, the following: (1) the relationship of

employer/employee existed between the parties at the time of the injury;

(2) Ford reached maximum medical improvement ("MMI") on December

7, 2020; and (3) the sole issue for consideration by the circuit court is the

nature and extent of Ford's disability.

The circuit court held a trial on February 3, 2025, and issued its

judgment on February 11, 2025. In its judgment, the circuit court found

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that, after reaching MMI, Ford "was not able to return back to gainful

employment that he had previously performed." The circuit court also

found that Ford's heart condition, discussed infra, "does not in any [way]

affect the fact that he was totally disabled as a result of his injury and

prior to any episode that occurred with his heart which [the circuit court]

finds is and was unrelated to the fall." Among other things, the circuit

court awarded Ford compensation for "the remainder of [his] natural

life."

PESG did not file a postjudgment motion. It timely appealed on

March 25, 2025.

Factual History

Ford graduated high school in 1979. He then received a two-year

certificate in commercial and industrial refrigeration. He testified that,

because his work in refrigeration had been in the commercial and

industrial sector, his employment had involved "heavy work" and had

required heavy lifting. He testified that he had been in the field of

commercial and industrial refrigeration for his entire career, although he

testified about a brief employment that involved handling residential

refrigeration work. He testified that he had worked for an automotive

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company for three years. He testified that, subsequently, he began

working for the Huntsville Board of Education in 1986. In that position,

Ford performed work on industrial-type HVAC equipment that, he

testified, required heavy lifting. He stated that he retired from that

position in 2011.

Retirement, Ford testified, was "really boring," so he worked for

Home Depot as a third-shift night stocker. That position, however, "just

wasn't for [Ford]." Ford left employment with Home Depot to work for

KBB Electric Motor Sales and Service. With KBB, Ford performed work

such as "electric motor tear down, pump tear down, electric motor

rewinds .…" Ford described the work as "pretty hefty work, okay?" Ford

eventually went to work for PESG. He described PESG as a staffing

agency; however, Ford testified that he performed essentially the same

HVAC-related duties that he had performed when he was working for the

Huntsville Board of Education. He testified that his employment with

PESG required heavy lifting.

On June 17, 2019, Ford sustained an injury to his left shoulder

during the course and scope of his employment with PESG. He testified

that he tripped and fell after the laces on his boot caught on a chain link

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fence. The fall caused him to land on the ground on his left shoulder,

forearm, and left side of his face. Ford "fell like a tree."

Ford testified that he never went back to work after the June 17,

2019, incident. Dr. Thomas Thomasson performed a reverse total

shoulder arthroplasty on Ford's left shoulder in June 2020. Ford testified

that he is still being treated by Dr. Thomasson, who, Ford testified,

prescribes patches and pain creams. Ford testified that he still has pain

in his left shoulder and has asked about pain medication. Ford testified,

however, that he is not currently on narcotic pain medication.

Ford underwent a functional-capacity evaluation ("FCE") by Dr.

David Hinger at The Orthopaedic Center on November 24, 2020. Dr.

Hinger noted that there were some inconsistences with effort throughout

the evaluation and that, "[o]verall, it was felt to be a mildly inconsistent

test." Dr. Carter assigned Ford a total-left-upper-extremity impairment

rating of 44% and a "whole person impairment of 26%." The FCE results

indicate that, based upon his demonstrated effort, "Ford is able to work

at the SEDENTARY Physical Demand Level for an 8 hour day according

to the Dictionary of Occupational Titles, U.S. Department of Labor,

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1991." (Capitalization in original). Dr. Thomasson reviewed the FCE and

Dr. Carter's impairment rating and agreed with the rating.

On March 19, 2021, Ford saw Dr. Thomasson. Dr. Thomasson noted

that he would continue to have Ford bear weight and do activities as

tolerated. Dr. Thomasson noted that he would "have him return to work

per his functional capacity exam."

Ford also received a vocational report by Anne Darnell. Darnell

concluded: "Based on my careful review of the FCE and medical records,

Mr. Ford would be unable to perform his past relevant work of

Commercial Refrigerator Mechanic which requires lifting over 100 lbs.

and frequent overhead reaching. In addition he has a significant lack of

transferrable skills to accommodating occupations." Darnell wrote

further that "[b]ased on Ford's age, education, vocational testing, lack of

transferrable skills and careful review of medical records[,] Mr. Ford has

a Loss of Earning Capacity and Vocational Disability Rating of 100%. He

is incapable of obtaining and maintaining competitive employment."

Ford testified that he wanted to work but that he could no longer

work.

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Ford testified extensively about the changes to his daily activities

after the work-related incident. He testified that he cannot operate a

lawn mower or a four-wheeled vehicle due to pain caused by the

vibrations of those machines. He testified that he could no longer ride a

motorcycle, swim in the deep end of the pool, set up a camper, and that

he could no longer hunt because the shotgun would jar his whole body.

He also testified that he sleeps in a recliner and can no longer sleep lying

down because of the pain in his shoulder. He testified that he could no

longer give piggy-back rides to his granddaughter or swing a softball bat

when playing softball with her.

Ford also testified about his shoulder pain. He testified that it

begins in the morning at "around a two or a three" because of inactivity

overnight. He testified that by noon the pain has progressed to a "two or

a three, maybe four" but is mitigated by him taking "a couple Tylenols"

and using "pain cream." He testified that, by the end of the day, his pain

is at around a "four or a five." Ford testified that he sees Dr. Thomasson

every six months for pain management.

Evidence was also presented to the circuit court about Ford's heart

condition. On July 10, 2020, after the June 2020 surgery on his left

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shoulder, Ford was admitted to a hospital due to pneumonia. While there,

Ford was observed to have cardiomyopathy which, it was observed,

contributed to his ejecting blood from his heart at a rate of 25%. Ford

applied for, and receives, benefits from the Social Security

Administration ("the SSA"). On his application for benefits from the SSA,

Ford indicated that his only employment in the last 15 years was working

as an "HVAC Specialist" for the Huntsville Board of Education. The SSA

determined that Ford was disabled. According to the SSA, Ford's

"primary diagnosis" is "heart failure." His secondary diagnosis is

"Substance Addiction Disorders (Alcohol)." Ford testified that, although

his heart condition had been a latent issue, it had not kept him from

working.

The circuit court made the following pertinent findings of fact and

conclusions of law in its judgment:

"6. the Court finds [Ford's] work history reveals that he
had never done any sedentary work and so in December of
2020 when he was assigned eight hours of sedentary work he
does not return back to work. The court does note that in 2021
he had an unrelated heart episode that resulted in him filing
for Social Security Disability in the middle of 2021. The Court
specifically notes that even prior to filing for Social Security
Disability he never returned back to work as a result of the
injury to the left shoulder and the restrictions from the FCE
and the restriction of only sedentary work which had never

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been the function that he had performed during the course of
his entire work history.

"7. Taking into consideration the 23% impairment
rating and the assignment of total sedentary duty that had
been attached to the plaintiff the Court finds that as of the
MMI date [of] December 7, 2020[,] [Ford] was not able to
return back to the gainful employment that he had previously
performed. In actuality [Ford] is under the requirement to go
see Dr. Thomasson every 3 months just to check on his pain
level.

"CONCLUSION OF LAW

"….

"… [Ford's] work history shows he has never during the
course of his entire working life performed sedentary work
and that [PESG] did not indicate whether any sedentary work
or other alternative work within … the restrictions was
offered. The only information that was offered at trial
concerned the heart attack he had in 2021 which had nothing
to do with the fact that he was never allowed to go back to
work from December 11, 2020[,] until the time he filed for
social security disability on April 29, 2021. The Court further
finds that the problems [Ford] had with his heart does not in
any way affect that he was totally disabled as a result of his
injury and prior to any episode that occurred with his heart
which the Court finds is and was unrelated to the fall. After
the medical treatment[,] … the opinions received from the
doctors that were assigned to [Ford] for purposes of his
workers' compensation injury … placed him in a totally
sedentary position[,] which … [Ford] will remain in
throughout his working life. [PESG] offered no evidence
showing that there was a plan that would have allowed him
to do work that would have fell within a sedentary
restriction[,] nor did [PESG] indicate that there was ever an
offer of work within that restriction."

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(Bold typeface omitted.)

Standard of Review

The Alabama Workers' Compensation Act, § 25-5-1 et seq., Ala.

Code 1975, prescribes the following standard of review for judgments

entered in a workers' compensation action:

"From an order or judgment, any aggrieved party may, within
42 days thereafter, appeal to the Court of Civil Appeals and
review shall be as in cases reviewed as follows:

"(1) In reviewing the standard of proof set
forth herein and other legal issues, review by the
Court of Civil Appeals shall be without a
presumption of correctness.

"(2) 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). "Substantial evidence" is " '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., Inc., 680 So. 2d 262, 268 (Ala.

1996)(citation omitted); Brewton Area Young Men's Christian Ass'n v.

Lanier, 232 So. 3d 887, 893 (Ala. Civ. App. 2017). When reviewing

whether substantial evidence supports the factual findings in a trial

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court's judgment, this court does not examine whether substantial

evidence supports a contrary factual finding; instead, this court must

consider only whether there is substantial evidence to support the factual

findings made by the trial court. Lanier, 232 So. 3d at 893.

Analysis

I. Whether substantial evidence supported the circuit court's

finding of permanent total disability

PESG argues that the circuit court's determination that Ford

suffered a permanent total disability was not supported by substantial

evidence.

"We have stated that permanent total disability means 'the
inability to perform one's trade and the inability to find other
gainful employment.' Jim Walter Resources, Inc. v. Budnick,
619 So. 2d 926, 927 (Ala. Civ. App. 1993). We also have stated
that permanent total disability under the Workers'
Compensation Act 'does not mean absolute helplessness or
entire physical disability.' Id.; see also [Ex parte]Fryfogle, 742
So. 2d at 1258 [(Ala. 1999)].

"In making a determination regarding the extent of
disability, 'the trial court must consider all the evidence,
including its own observations, and interpret it to its own best
judgment.' Cooper v. Seven Rivers, Inc., 688 So. 2d 883, 886-
87 (Ala. Civ. App. 1997); see also Ellenburg v. Jim Walter
Resources, Inc., 680 So. 2d 282 (Ala. Civ. App. 1996). Further,
'[a]n injured employee's own subjective complaints of pain are
legal evidence which may support a finding of disability.' Jim
Walter Resources, Inc., 619 So. 2d at 927."

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James River Corp. v. Franklin, 840 So. 2d 164, 168 (Ala. Civ. App. 2002).

PESG's sufficiency-of-the-evidence argument is twofold. It argues

that the affirmative evidence that Ford is permanently and totally

disabled because of his left-shoulder injury is not substantial evidence of

permanent disability because, it argues, the affirmative evidence consists

of only Ford's testimony that he had only ever worked as an HVAC

mechanic and that he did not return to work after the June 17, 2019,

incident. PESG also argues that the evidence is not sufficient because no

"doctor" stated that Ford was incapable of any type of gainful

employment and none of the medical records presented establish that

Ford is incapable of gainful employment as a result of his left shoulder

injury. PESG argues that, because of the lack of testimony regarding

Ford's inability to obtain gainful employment, the judgment in this case,

like the judgment in Ex parte Southern Energy Homes, Inc., 873 So. 2d

1116 (Ala. 2003), should be reversed.

Ex parte Southern Energy Homes, however, does not stand for the

proposition that a plaintiff must provide medical or expert testimony to

establish that a plaintiff is unable to find other gainful employment; it

merely stands for the proposition that, under the facts of that case, there

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was not sufficient evidence to find that the plaintiff in that case was

unable to find other gainful employment. See Ex parte Caldwell, 104 So.

3d 901, 905 (Ala. 2012)("[Ex parte Southern Energy Homes, 873 So. 2d

1116 (Ala. 2003); Jackson Landscaping, Inc. v. Hooks, 844 So. 2d 1267

(Ala. Civ. App. 2002); and G.UB.MK. Constructors v. Davis, 45 So. 3d

1277 (Ala. Civ. App. 2010),] remind us that compensability in the context

of workers' compensation is determined upon a case-by-case review of the

totality of the evidence presented."); Stericycle, Inc. v. Patterson, 161 So.

3d 1170, 1180 (Ala. Civ. App. 2013)(plurality opinion)(distinguishing Ex

parte Southern Energy Homes and noting that trial court had not erred

by finding medical and expert testimony unpersuasive, stating "[Ex

parte] Southern Energy Homes[, 873 So. 2d 1116 (Ala. 2003)], is

distinguishable from the present case because, in this case, the trial court

believed Patterson's testimony that she had experienced unrelenting

pain since January 19, 2011, expressly determining that Patterson's

'subjective manifestations of pain [were] credible.' The trial court was not

required to explain why it found the physicians' impairment ratings or

symptom-magnification determinations unpersuasive."). Ex parte

Southern Energy Homes therefore does not support the proposition that

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medical testimony about a plaintiff's ability to return to work is required

to sustain a finding of permanent total disability.

Furthermore, the facts of Ex parte Southern Energy Homes and the

facts of this case are materially distinguishable. In Ex parte Southern

Energy Homes, the plaintiff was not assigned any work restrictions and

none of the "doctors, psychologists, or experts stated after examining [the

plaintiff] that [the plaintiff] was incapable of gainful employment." Ex

parte Southern Energy Homes, 873 So 3d. at 1123. The plaintiff was

assigned an impairment rating of "at most 5%," and at least one

physician concluded that the plaintiff could perform light-, medium-, and

even heavy-duty work, given the right conditions. Id. The only limitations

placed on the plaintiff's job prospects were because of her intellectual

capacity and level of education. The Alabama Supreme Court concluded

that the evidence was far from sufficient to support a finding of an

" 'inability to find other gainful employment.' " Id.

Unlike the plaintiff in Ex parte Southern Energy Homes, Ford was

assigned sedentary-work restrictions by a medical provider, prohibiting

him from medium- and heavy-duty work. Additionally, a vocational

report indicated that Ford could not perform either his prior profession

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of "Commercial Refrigerator Mechanic" or any other profession "[b]ased

on [his] age, education, vocational testing, [and] lack of transferrable

skills." Darnell expressly concluded in the vocational report that Ford is

"incapable of obtaining and maintaining competitive employment."

Additionally, unlike the plaintiff in Ex parte Southern Energy Homes,

who received an impairment rating of "at most 5%," Ford was assigned a

total-left-upper-extremity impairment rating of 44% and a "whole person

impairment of 26%." There are material factual differences between this

case and Ex parte Southern Energy Homes. Accordingly, neither the

holding nor the facts of Ex parte Southern Energy Homes compels a

reversal of the circuit court's judgment in this case.

PESG's argument with respect to the affirmative evidence of Ford's

disability is also unpersuasive. PESG argues that the affirmative

evidence of Ford's inability to return to employment consists only of

Ford's testimony that he had only ever worked as an HVAC mechanic

and that he did not return to work after the June 17, 2019, incident.

PESG overlooks the vocational report, which found that Ford could not

return to gainful employment or maintain competitive employment.

Furthermore, the circuit court appears to have relied upon Ford's

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complaints of pain when determining that Ford was permanently and

totally disabled, and Ford provided evidence to support that finding in

the form of his testimony at trial. Ford testified that he experiences

ongoing pain in his left shoulder that prohibits him from hunting,

swimming, and sleeping lying down. He testified that he must take

breaks to rest his shoulder after doing daily chores and activities. He also

testified that he is still prescribed pain creams because of his shoulder

pain. Based on Ford's testimony, the circuit court could have reasonably

concluded that Ford was not able to find other gainful employment

because of his pain. See Jim Walter Res., Inc. v. Budnick, 619 So. 2d 926,

927 (Ala. Civ. App. 1993)("An injured employee's own subjective

complaints of pain are legal evidence which may support a finding of

disability.").

II. Whether the circuit court erred in making or relying on

certain factual findings

PESG argues that the circuit court erred by relying on the results

of the FCE. The issues with Ford's performance during the FCE were

apparent from the FCE results and therefore known to the circuit court.

In light of those apparent issues, the circuit court, as the evaluator of the

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evidence, was free to accept or disregard the findings of the FCE.

Furthermore, Ford's physician, who was also necessarily aware of the

issues with Ford's performance during the FCE, adopted the findings of

the FCE. The circuit court therefore did not err by relying on the FCE.

PESG also argues that the circuit court erred by awarding

permanent-total-disability benefits because, it argues, Ford's disabling

condition is unrelated to his on-the-job injury. PESG's argument hinges

on Ford's congestive heart failure as being Ford's disabling condition. The

circuit court's judgment, however, clearly finds that Ford was

permanently and totally disabled because of his shoulder injury. The

relevant question is, therefore, whether there was sufficient evidence

before the circuit court for it to find that Ford was permanently and

totally disabled due to his left-shoulder injury alone. We have already

resolved that question in the affirmative in Part I of the Analysis section

of this opinion. Thus, the circuit court did not err by discounting Ford's

heart condition, which it reasonably could have found to be an

independent condition unrelated to the condition causing Ford's

disability.

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PESG points out that the circuit court's finding of fact related to the

timing of the diagnosis of Ford's heart condition was in error. On this

point, PESG is correct. The circuit court's finding of fact regarding the

diagnosis date of Ford's heart condition and his suffering a "heart attack"

does not appear to be supported by the evidence adduced at trial. But in

the context of this case, that finding is harmless error. There is no

testimony indicating that the work restrictions that were assigned to

Ford by Dr. Thomasson were because of Ford's heart condition or that his

heart condition had factored into Darnell's vocational report. See James

River Corp., 840 So. 2d at 168 (noting that trial court had made several

factual errors regarding the medical testimony, and that several of the

trial court's subordinate factual findings were, therefore, incorrect, but

concluding that those misstatements amounted to harmless error

because the record as a whole supported the ultimate factual

determination that the employee was permanently and totally disabled).

"The judgment of the trial court will not be reversed for harmless error.

Rule 61, Ala. R. Civ. P.[,] and Rule 45, Ala. R. App. P." Coastal Bail

Bonds, Inc. v. Cope, 697 So. 2d 48, 52 (Ala. Civ. App. 1996).

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III. Whether the circuit court erred by awarding Ford permanent-

total-disability benefits for "the remainder of [his] natural life"

Ford asserts -- and PESG agrees -- that the circuit court erred by

awarding Ford permanent-total-disability benefits for the remainder of

his natural life. Accordingly, as in K.H. v. Limestone County Department

of Human Resources, 361 So. 3d 770, 771 (Ala. Civ. App. 2022), and J.B.

v. Jefferson County Department of Human Resources, 252 So. 3d 674

(Ala. Civ. App. 2017), "[t]he posture of the case is in effect a confession of

error on the part of the appellee and a joinder therein by the appellant."

Payton v. Sexton, 273 Ala. 224, 225, 137 So. 2d 747, 748 (1962). Despite

that posture, this court is not bound by the parties' agreement on a

confessed error, and we will not reverse the circuit court's judgment if no

actual error occurred. Murphy v. Dees, 293 Ala. 529, 532, 307 So. 2d 1, 3

(1975)(refusing to reverse trial court's judgment because the error

confessed to by the appellee did not constitute reversible error as a matter

of law); Boss Livery Co. v. Griffith, 17 Ala. App. 474, 475, 85 So. 849, 849

(1920)(refusing to reverse trial court's judgment, despite a confession of

error, because "the trial court should not be put in error where there is

none").

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We agree with Ford and PESG, however, that a circuit court may

not award permanent-total-disability benefits for the remainder of an

employee's natural life. Reeves Rubber, Inc. v. Wallace, 912 So. 2d 274,

282 (Ala. Civ. App. 2005)("[T]his court has consistently reversed

judgments in which an employee was awarded permanent-total-

disability benefits for the remainder of the employee's life."); Hilyard

Drilling Co. v. Janes, 462 So. 2d 942, 943 (Ala. Civ. App. 1985)("Under

[Ala. Code 1975, § 25-5-57], it is true that an award for permanent total

disability compensation may not be made for a period defined as 'for and

during his natural lifetime,' because the period of compensation lasts

only as long as the disability continues, Thompson & Company

Contractors v. Cole, 391 So. 2d 1042 (Ala. Civ. App. 1980) [construing §

25-5-57(a)(4)a.]."). Accordingly, we must reverse the circuit court's

judgment to the extent that it awarded Ford permanent-total-disability

benefits for the remainder of his natural life. See King v. City of

Montgomery, 41 Ala. App. 260, 261, 128 So. 2d 340, 340 (1961)("We

consider the confession of error made by the appellee well grounded, and

under the long-settled doctrines of decisions by our Supreme Court, and

of this Court, this judgment must of necessity be reversed.").

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Conclusion

We reverse the circuit court's judgment to the extent that it

awarded Ford permanent-total-disability benefits for the remainder of

his natural life; otherwise, the judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

Moore, P.J., and Edwards, Hanson, and Fridy, JJ., concur.

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