745 So. 2d 877 | Ala. Civ. App. | 1999
Amy White, as mother and next friend of minor children Christopher White and Carl White, filed a complaint against Riley Construction, Inc., seeking workers' compensation benefits for the children pursuant to §
The facts of this case are essentially undisputed. On March 24, 1993, Larry White was injured during the course of his employment with Riley Construction. On June 7, 1996, White sued Riley Construction, seeking workers' compensation benefits. On February 10, 1997, while his workers' compensation action was pending, White died.
On July 8, 1997, the children's mother sued on their behalf, alleging that Larry White's death was a proximate result of an on-the-job injury and that, pursuant to §
Section
"In case of death, all claims for compensation shall be forever barred unless within two years after death, when the death results proximately from the accident within three years, the parties shall have agreed upon the compensation under this article or unless within two years after the death one of the parties shall have filed a verified complaint as provided in Section
25-5-88 ."
(Emphasis added.)
Because the facts in this case are undisputed, no presumption of correctness attaches to the trial court's judgment. Tierce v.Gilliam,
The children cite only Bowen v. Bickerstaff Clay Products,Inc.,
Section
However, the children made no argument before the trial court regarding the tolling of the three-year limitations period. It is well settled that an issue not raised before the trial court may not be considered for the first time on appeal. Andrews v.Merritt Oil Co.,
Further, although the children allege in their brief on appeal that their father received workers' compensation benefits, no evidence in the record indicates that White received workers' compensation benefits after the date of his injury. Thus, the record on appeal contains no evidence from which this court could determine whether, and, if so, from what date, the plaintiffs' claim for benefits might be tolled past three years from the date of Larry White's injury. "`This court cannot assume error, nor can it presume the existence of facts [as] to which the record is silent.' The appellant has the burden of ensuring that the record contains sufficient evidence to warrant reversal." Alfa Mut. Gen.Ins. Co. v. Oglesby,
We affirm the judgment of the trial court.
AFFIRMED. *880
Crawley, J., concurs.
Robertson, P.J., and Yates and Monroe, JJ., concur in the result.