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Feb. 27, 2026 Get Citation Alerts Download PDF Add Note

BISCO Refractories, Inc. v. Wesley Dean

Court of Civil Appeals of Alabama

• Citations: None known
• Docket Number: CL-2025-0645

• Judges: Moore, P.J.

• Opinion

• Authorities (14)

• Cited By (0)

• Summaries (0)

• Similar Cases (15.8K)

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Combined Opinion

                        by [Terry A. Moore](https://www.courtlistener.com/person/6123/terry-a-moore/)

Rel: February 27, 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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CL-2025-0645

---

BISCO Refractories, Inc.

v.

Wesley Dean

Appeal from Jefferson Circuit Court
(CV-20-902179)

MOORE, Presiding Judge.

BISCO Refractories, Inc. ("the employer"), appeals from a judgment

of the Jefferson Circuit Court ("the trial court") that awarded Wesley

Dean ("the employee") permanent-total-disability benefits under the

Alabama Workers' Compensation Act ("the Act"), Ala. Code 1975, § 25-5-
CL-2025-0645

1 et seq. We reverse the judgment and remand the case with

instructions.

Background

Based on the parties' stipulations in the proceedings below, the

employee was working as a brick mason for the employer on February 2,

2019, when, due to a work-related accident, he suffered "a fracture of the

L1 [lumbar] vertebrae and a fracture of the left calcaneus (heel)." The

employee reached maximum medical improvement for his work-related

injuries on May 29, 2019. Before that date, the employer paid the

employee approximately eight weeks of temporary-total-disability

benefits and covered his authorized medical expenses.

On June 11, 2020, the employee filed a complaint seeking, among

other things, additional workers' compensation benefits from the

employer. On July 16, 2020, the employer filed an answer. The trial

court eventually scheduled a trial of the case for October 4, 2024. On

June 30, 2025, the trial court entered a final judgment awarding the

employee permanent-total-disability benefits. On August 11, 2025, the

employer filed a notice of appeal from the judgment.

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CL-2025-0645

Issues

The employer argues that the trial court erred in awarding the

employee permanent-total-disability benefits because, it says, (1) the

trial court ignored undisputed evidence and the finding that the

employee was permanently and totally disabled was not supported by

substantial evidence and (2) the doctrine of judicial estoppel precludes

the employee's claim. We consider the first issue to be dispositive of this

appeal, so we do not address the second issue.

Standard of Review

" 'The determination of the extent of the employee's disability
is a discretionary function of the trial court. Dolgencorp, Inc.
v. Hudson, 924 So. 2d 727 (Ala. Civ. App. 2005). It is not
within the province of an appellate court to determine or
establish the percentage of disability of an injured employee.
Hill v. Stevens & Co., 360 So. 2d 1035 (Ala. Civ. App. 1978).
Our review is restricted to a determination of whether the
trial court's factual findings are supported by substantial
evidence. Ala. Code 1975, § 25-5-81(e)(2). This statutorily
mandated scope of review does not permit this court to reverse
the trial court's judgment based on a particular factual
finding on the ground that substantial evidence supports a
contrary factual finding; rather, it permits this court to
reverse the trial court's judgment only if its factual finding is
not supported by substantial evidence. See Ex parte M & D
Mech. Contractors, Inc., 725 So. 2d 292 (Ala. 1998). A trial
court's findings of fact on conflicting evidence are conclusive
if they are supported by substantial evidence. Edwards v.
Jesse Stutts, Inc., 655 So. 2d 1012 (Ala. Civ. App. 1995).' "

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CL-2025-0645

Landers v. Lowe's Home Ctrs., Inc., 14 So. 3d 144, 151 (Ala. Civ. App.

2007). "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) (quoting West v.

Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989));

see also Ala. Code 1975, § 12-21-12(d). However, in making its factual

determinations, the trial court cannot ignore undisputed evidence.

Tarver v. Diamond Rubber Prods. Co., 664 So. 2d 207, 210 (Ala. Civ. App.

1994).

The Evidence

The evidence relating to the issue before the court consists of the

following. The employee testified that he graduated from high school and

that, after high school, he enlisted in the United States Army. In 1991,

he completed a trade-school course in brick masonry, and he has worked

as a brick mason since. He earned three college credits, but he never

finished college. Between 2003 and 2005, the employee joined a brick

mason's union, which assigned him to work mainly for American Cast

Iron Pipe Company ("ACIPCO") until "the real estate crash," when, the

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CL-2025-0645

employee said, he began working for other companies. In the last couple

of years leading up to his accident, the employee worked mainly through

his union for the employer at ACIPCO's plant, working 12 to 16 hours

per workday. While working for the employer, the employee laid brick

and gunite, but he mostly laid shotcrete. Laying shotcrete involves

blasting concrete material through a hose. He earned between $60,000

and $65,000 per year.

The employee said that, on February 2, 2019, he was working on a

platform when he was struck by a "luden buggy," which caused him to

fall off the platform 12 to 14 feet to the ground. The employee landed on

his left heel and twisted his foot before collapsing onto the floor. He was

taken to a local hospital, where he was diagnosed with a left calcaneal

fracture and a closed compression fracture of the L-1 lumbar vertebra.

According to the employee, his left foot was splinted and placed in a cast,

and he was discharged that day.

The employee testified that, after his discharge, the employer

authorized Dr. Jerome Ambrosia of the Alabama Orthopedic Clinic to

treat him for his work-related injuries. The medical records from the

Alabama Orthopedic Clinic show that Dr. Ambrosia primarily treated the

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CL-2025-0645

employee from February 5, 2019, to May 29, 2019. On the first visit, Dr.

Ambrosia recommended nonsurgical treatment for both the lumbar

compression fracture and the left calcaneal fracture. He advised the

employee that calcaneal fractures often result in post-traumatic pain and

arthritis but that he did not believe that surgery would improve the

employee's outcome. Dr. Ambrosia recommended that the employee

avoid bearing any weight on his left foot for eight weeks and advised him

to keep the foot iced and elevated. Over the course of the next eight

weeks, the employee underwent physical therapy, and Dr. Ambrosia

recorded that the employee was improving. On May 1, 2019, the

employee reported left-knee pain that Dr. Ambrosia related to the

employee's walking differently due to his calcaneal fracture.

On May 29, 2019, Dr. Ambrosia reported that the employee was

"mobilizing better swelling pain [has] improved significantly. He [is] still

using a cane to get around. Otherwise it appears that his fractures have

healed and stabilized." Dr. Ambrosia opined that the employee would

likely have a permanent impairment due to his calcaneal fracture. He

noted that he wanted the employee to undergo a functional-capacity

evaluation ("FCE") and that he would see the employee again after the

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CL-2025-0645

FCE was completed. The parties stipulated that the employee reached

maximum medical improvement on May 29, 2019.

The employee testified that, while he was under Dr. Ambrosia's

care, his left calcaneal fracture eventually started getting better, but that

his lumbar compression fracture never improved. The employee did not

attend the FCE recommended by Dr. Ambrosia, and he did not return to

see Dr. Ambrosia until February 2024.1 The employee explained that he

had not been informed that he had been referred for an FCE.

The employee related that, despite his treatment by Dr. Ambrosia,

he continued to suffer pain in his left ankle, left knee, left hip, and back.

In July 2019, he sought further medical treatment through Medplex MD,

where Dr. Robert Agee became his primary treating physician. On July

23, 2019, the employee presented complaining of low-back pain that was

constant, achy, and throbbing and radiated into his left leg. Reviewing a

magnetic-resonance-imaging scan, Dr. Agee diagnosed the employee with

"[n]ondisplaced fracture calcaneus. Large associated bone contusion.

Bone contusion adjacent medial talus. Chronic talonavicular and

1The record does not contain any documentation relating to the
February 2024 visit.
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CL-2025-0645

posterior subtalar degenerative joint disease. Chronic plantar fascia

enthesopathy. Mild posterior tibialis tendonitis." On September 10,

2019, Dr. Agee referred the employee for an FCE.

On September 24, 2019, David Bledsoe, an occupational therapist,

performed the FCE recommended by Dr. Agee. Bledsoe explained at trial

that an FCE is a performance-based test to determine a person's

physical-demand level for work. Bledsoe testified that the employee had

reported that he was suffering from left-ankle pain only, and that, during

the FCE, the employee had displayed a noticeable limp, or gait

derangement. Bledsoe determined that the employee was limited in how

long he could walk and that he could only occasionally lift up to 35 pounds

from floor to overhead. Bledsoe opined that the employee could fully meet

the physical demands of sedentary and light-duty employment and could

partially meet the physical demands of medium-duty employment.

Bledsoe also estimated that, without considering the employee's

fractured vertebra, the employee had sustained a 17% permanent

impairment to his left lower extremity and a 7% permanent impairment

to his whole person.

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CL-2025-0645

Bledsoe said that he had referred to the Dictionary of Occupational

Titles ("the DOT") to obtain a job description for "brick-layer

construction" and "brick-layer refractory tile." He said that the employee

could not perform the job of brick-layer construction because it involved

heavy-duty employment and that he could perform only some of the job

duties associated with brick-layer refractory tile, which involved

medium-duty employment. Bledsoe testified that the employee had

described his job as involving very heavy labor. He opined that the

employee could not return to heavy-duty work as a brick mason, as

described in the DOT, but, he said, it was possible that he could perform

some brick-mason jobs that differed from the description of that job in

the DOT. Bledsoe admitted that the employee would have exceeded the

physical limitations recommended in the FCE if he had been able to work

in heavy-duty jobs since 2019. Bledsoe testified that he had talked to the

employee shortly before the trial and that he maintained the same

opinions regarding the employee's functional capacity at the time of the

trial.

Following the FCE, the employee did not seek regular medical

treatment for his work-related injuries. In September 2021, the

9
CL-2025-0645

employee was deposed, and, when asked to describe the injuries he had

sustained from the work-related accident, he did not mention hip pain or

radiating pain from his back injury. The employee testified at trial that

his left hip began hurting after his deposition and that it had worsened

in the ensuing three years. Between 2021 and 2023, the employee made

annual visits to a local Veteran's Administration ("the VA") hospital. The

VA records show that the employee was experiencing left-ankle pain and

was using a brace on the ankle, but the VA records do not mention the

employee's back injury or pain radiating from that back injury. The

employee testified that the VA doctors could not treat his work-related

injuries, so they did not document his complaints relating to his back

injury. The employee testified that he received treatment from the VA

doctors for conditions unrelated to his work-related injuries.

Shortly after his work-related accident, the employee returned to

work performing sedentary office duties. After reaching maximum

medical improvement in May 2019, the employee resumed working as a

brick mason for the employer until July 3, 2020. The employee testified

that, during that period, he had worked fewer days and fewer hours and

had not performed the full duties of a brick mason. Despite that

10
CL-2025-0645

testimony, the employer submitted records showing that the employee

had often worked full-time and had worked some overtime during that

period.

During lulls in his employment in 2019 and 2020, the employee

applied for unemployment-compensation benefits on five different

occasions, just as he had done before he was injured. On each application,

the employee indicated that he was physically able to work full-time in

his normal trade but that he was seeking unemployment-compensation

benefits due to lack of work. In his last three applications, the employee

also denied that he had applied for workers' compensation benefits

despite having commenced the underlying civil action. The employee

testified that "[a]ll I was saying when I filled that out was that I could

return to work. It doesn't say in what capacity." The employee testified

that he had not been able to work at full capacity as a brick mason since

his work-related accident.

On November 4, 2021, the employee applied at a local Wal-Mart

store for a job. On November 16, 2021, Wal-Mart offered the employee a

job as an order filler. The essential functions of the job included reaching

overhead, reaching below the knees, bending, twisting, pulling, and

11
CL-2025-0645

stooping. The job also involved standing and walking for extended

periods of time; lifting, pulling, and carrying objects and equipment over

shoulder level; and moving, lifting, carrying, and placing merchandise up

to 60 pounds without assistance. The employee agreed that he could

perform those tasks, but, he said, he never did them because, after he

accepted the job, he had worked for Wal-Mart solely as a forklift operator.

The employee agreed that, in 2022, after being transferred to a Wal-Mart

store in Cullman, he had signed a document indicating that, as a forklift

operator, he could lift long, heavy items onto pallets and that he could

work in tandem with other employees to lift heavy items. The employee

testified that he had taken the job at Wal-Mart because it required him

to work only three days a week and he needed to take care of his ailing

mother.

Following his job at Wal-Mart, in June 2023, the employee resumed

working as a brick mason. He remains a member of the brick mason's

union and has been assigned mainly to work for Norris & Son. The

employee testified that he works for Norris & Son because the company

works in power plants "[a]nd that's about the easiest work you can get."

The employee said that he had declined other assignments because he

12
CL-2025-0645

can work only three or four days at a time. At the time of the trial, the

employee, who was 58 years old, had not worked in 2 months.

At the time of his work-related accident, the employee was earning

an average weekly wage of $1,176.15. In 2019, the employee earned

approximately $35,000. In 2020, he earned approximately $29,600. In

2021, the employee earned approximately $16,049. In 2022, the

employee earned approximately $39,606. Since 2022, the employee had

not earned as much annually as he did before his injury.

The employee testified at trial that he initially had experienced

some relief from his injuries, but, he said, his pain progressively

worsened. He testified that, at the time of the trial, his left ankle felt

tight and that he felt unsteady walking downhill, so he used a cane. He

also experienced constant throbbing pain radiating from his back down

through his left lower extremity. He testified that he leans on furniture

to help him walk to the bathroom in the morning "just to get moving,"

and, he said, the pain "don't ever stop" and "hurts all the way up my leg

to my back." He attributed that pain to his altered gait. The employee

said that, at the time of the trial, he could work only part-time because

he "can't hold out that long."

13
CL-2025-0645

The Findings of Fact

In the final judgment, the trial court determined that the employee

was permanently and totally disabled. The judgment provides, in

pertinent part:

"9. Based on [the employee]'s testimony at trial and
evidence presented, [the employee] was employed as a brick
mason with [the employer] where his duties included working
on an average of twelve hours per day, where he laid brick,
shotcrete, and gunite.

"10. Based on the testimony of David Bledsoe and
testimony provided in open court, [the employee]'s job with
[the employer] required the performance of medium to heavy
duty work as [c]lassified by the [DOT].

"11. Following his injury, [the employee] has
experienced low back pain that radiates into his left leg as
well as being diagnosed with chronic plantar enthesopathy
and posterior tibialis tendonits.

"12. Since his injury with [the employer], [the
employee]'s gait has been altered, causing him to limp at
times, and experience pain in his back and left leg.

"13. The [c]ourt finds that [the employee] sustained a
seven (7) percent physical impairment rating to the body as a
whole and is limited to the full scope of 'light duty' category
work in accordance with the [DOT]. According to the evidence,
[the employee] underwent a functional capacity evaluation
('FCE') with David Bledsoe, occupational therapist, and on
September 24, 2019. According to Mr. Bledsoe's testimony,
the results from the FCE indicated that while [the employee]
can [perform] some medium duty work, [he] cannot
completely perform at that work level. He additionally stated

14
CL-2025-0645

that an eight hour work day requiring constant walking is
outside of the recommended FCE limitations. Mr. Bledsoe
compared the [DOT] listings for both 'brick layer refractory
tile' and 'brick layer construction' and opined that [the
employee] could not fully perform either. As such, Mr. Bledsoe
recommended that [the employee] be restricted to the full
light duty work category job classification.

"14. The [c]ourt also finds that in addition to physical
restrictions, [the employee] also suffers from continuing and
constant pain relating to his injury in his left ankle, back, hip
and left knee.

"15. Further, based on evidence presented at trial and
this [c]ourt's observations, as a result of the injury to [the
employee]'s back and left leg, he now suffers from increased
lifting restrictions and an inability to stand, lift, and/or sit for
long periods of time without facultative breaks. This injury
has interfered with the efficiency of other body parts and
affected his body as a whole.

"16. Based on the testimony presented at trial, [the
employee] graduated from [h]igh [s]chool, served in the
United States Army, and then went through a journeyman
program with the Alabama Home Builder's Association. Since
that time, and up until the time of his injury, he worked as a
brick mason with the union. Most, if not all, of [the
employee]'s work was in the 'medium' to 'heavy' duty job
classification.

"17. Following his injury, [the employee] has worked in
a limited and inconsistent capacity in various jobs. He has not
been able to earn wages similar to or even close to the wages
he was earning prior to his injury, and has been unable to
return to work in a permanent capacity as a brick mason.

"18. Based on [the employee]'s age, prior work history,
experience, and education, as a result of [the employee]'s on

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CL-2025-0645

the job injury, he is unable to continue his trade as a brick
mason and is unable to find gainful employment in another
trade.

"....

"After viewing [the employee] first-hand in [c]ourt,
reviewing the evidence presented, together with [the
employee]'s sworn testimony and the testimony of
occupational therapist David Bledsoe, the [c]ourt is of the
opinion that [the employee] has suffered a permanent and
total loss of earning capacity, and is no longer capable of
gainful employment. With the evidence presented at trial,
including [the employee]'s testimony regarding his injured leg
and back, as well as the continuing and resulting pain in his
left leg, hip, and lower back area, [the employee]'s credible
subjective complaints of pain and difficulty walking for
extended periods of time, [the employee] has suffered a
permanent loss of his ability to earn. The [c]ourt specifically
concludes, in light of [the employee]'s education, training, and
work history and the substantial lack of manual labor for
which he is now suited as a result of his workplace injury, that
[the employee]'s on the job injury with [the employer], made
basis of this suit, has caused him to suffer a 100% loss of his
ability to earn and find gainful employment."

The trial court awarded the employee $226,717.61, "representing the

accrued and unpaid compensation for permanent total disability in the

amount of $784.49 per week from May 29, 2019 through December 17,

2024," and "the sum of $666.82" weekly so long as his permanent-total

disability continues.

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CL-2025-0645

Analysis

Section 25-5-57(a)(4)d., Ala. Code 1975, provides, in pertinent part:

"[A]ny 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, shall constitute prima facie
evidence of permanent total disability but shall not constitute
the sole basis on which an award of permanent total disability
may be based."

Permanent total disability refers to the inability to perform one's trade

and the inability to find or be retrained for gainful employment. See

Mead Paper Co. v. Brizendine, 575 So. 2d 571, 574 (Ala. Civ. App. 1990).

"The question of whether an employee can return to his
former trade is basically a threshold issue; if the employee can
resume his trade then it is obvious that he is not permanently,
totally disabled, and the court need inquire no further. If he
is unable to return to his trade, then § 25-5-57[, Ala. Code
1975,] requires the court to find that other employment is
unavailable and retraining is not feasible."

Id. In Brizendine, this court explained that the test for permanent total

disability is applied conjunctively so that the trial court must determine

that an employee meets all the statutory criteria to be found permanently

and totally disabled. 575 So. 2d at 574. Thus, even if an employee cannot

return to his or her former trade, if the employee can secure and perform

other gainful employment -- the second component of the statutory

17
CL-2025-0645

formula -- the employee cannot be deemed permanently and totally

disabled.

In its findings, the trial court expressly determined that the

employee was "unable to continue his trade as a brick mason and is

unable to find gainful employment in another trade." (Emphasis added.)

The employer argues, among other things, that the undisputed evidence

showed that the employee could physically work within the limitations

established in his FCE and that he, in fact, had consistently worked since

his work-related accident, except for the periods when he was collecting

unemployment-compensation benefits.

Bledsoe testified that, based on the FCE, the employee displayed

the ability to perform the full range of the physical demands of light-duty

jobs and a partial range of the physical demands of medium-duty jobs.

The employee testified that his altered gait and lower-back and left-hip

pain had progressively worsened since his work-related accident, but he

did not present any evidence indicating that his physical abilities had

deteriorated to the point that he could no longer perform work within the

limitations established by the FCE. Bledsoe testified that, after

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conversing with the employee regarding his current condition, his

opinion regarding the employee's functional capacity remained the same.

The employee testified that, when he resumed working as a brick

mason in 2019 and 2020, he did not perform the full range of his previous

duties and worked shorter hours, but the evidence in the record shows

that he was able to earn significant wages even in his diminished

capacity. During layoffs, the employee applied for unemployment-

compensation benefits, and, in each application, he represented that he

was ready, willing, and able to work. The employee admitted at trial that

he had meant that he could work in some capacity. See CVS/Caremark

Corp. v. Washington, 121 So. 3d 391, 402-03 (Ala. Civ. App. 2013) (Moore,

J., concurring in the rationale in part and concurring in the result) ("A

statement made by a worker in an application for unemployment-

compensation benefits is an extrajudicial admission .... That statement is

'in the nature of an admission on the part of the plaintiff which bore

heavily against him in weighing the conflict in the evidence ....' " (quoting

Bell v. Tennessee Coal, Iron & R.R. Co., 247 Ala. 394, 396, 24 So. 2d 443,

444 (1946))).

19
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In 2021, the employee applied for a job as an order filler at a Wal-

Mart store in Jefferson County, certifying that he was able to perform the

essential functions of that job, which exceeded his FCE limitations. The

employee testified, however, that he was hired as a forklift operator

instead. In 2022, when he was transferred to a Wal-Mart store in

Cullman, he signed a document stating that he could perform the

essential functions of a forklift operator, which also exceeded his FCE

limitations. However, the employee testified that he performed the

heavy-lifting aspects of his job with help from other employees. The

record contains no evidence indicating that the employee was unable to

perform the job, that he missed work due to his injuries, or that he quit

that employment due to his pain or physical limitations. The employee

earned almost $40,000 in 2022 as a forklift operator. In 2023, the

employee resumed working as a brick mason on a part-time basis, taking

temporary assignments that he could physically perform. The employee

remained a member of the brick mason's union at the time of the trial.

The employee is not necessarily disqualified from being awarded

permanent-total-disability benefits simply because he worked for a

substantial period after reaching maximum medical improvement. See

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Waters Bros. Contractors v. Wimberley, 20 So. 3d 125, 135 (Ala. Civ. App.

2009). If an employee returns to work and experiences a worsening of his

or her work-related injuries that eventually prevent the employee from

maintaining employment, the period of employment does not preclude a

trial court from finding that the injury has gradually resulted in a

permanent total disability. See, e.g., Hudson Indus. v. Harrell, 484 So.

2d 1099 (Ala. Civ. App. 1986) (holding that truck driver who returned to

work at same wages for a period, but who subsequently underwent spinal

surgery, could recover permanent-disability benefits). However, in this

case, the evidence in the record does not support the finding that the

employee is unable to secure and perform gainful employment.

Although the employee testified that his pain had progressively

worsened over the years after his injury, the record contains no evidence

indicating that the employee lost the ability to work due to a

deterioration in his condition. The employee admitted that, in 2019 and

2020, he was able to work as a brick mason in a limited capacity. The

employee conceded that, in 2019 and 2020, he could also work in other

employment within his capacity, as he represented when applying for

unemployment-compensation benefits. The employee acknowledged that

21
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he earned substantial wages in 2021 and 2022 while performing his part-

time job as a forklift operator for Wal-Mart. Since 2023, he has been able

to work part-time for Norris & Son as a brick mason. That evidence

shows that, despite his testimony that his pain had progressively

worsened, the employee had been able to find and maintain gainful

employment in the years since his work-related accident.

The record contains no evidence indicating that the employee was

working in sheltered employment between 2019 and 2024. The employee

did testify that he could work only three or four days at a time, indicating

that he could work only part-time. However, the employee, who bore the

burden of proof, see Fort James Operating Co. v. Kirklewski, 893 So. 2d

434, 441 (Ala. Civ. App. 2004), failed to present any evidence indicating

that he could not find part-time gainful employment within the

limitations established in his FCE. The employee had previously worked

at two different Wal-Mart stores as a part-time forklift operator. The

record contains no evidence indicating that the employee could not find

stable and dependable work commensurate with his skills and physical

limitations.

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Conclusion

The evidence in the record shows that the employee's injuries and

impairments did not permanently and totally incapacitate him from

finding gainful employment. The trial court misapplied the law to the

undisputed facts when it found that the employee was permanently and

totally disabled. We, therefore, reverse the judgment and remand the

case for the trial court to enter a judgment consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Edwards, Hanson, Fridy, and Bowden, JJ., concur.

23