Gold Kist, Inc. v. Smith

116 So. 3d 214, 2012 WL 3241718, 2012 Ala. Civ. App. LEXIS 220
CourtCourt of Civil Appeals of Alabama
DecidedAugust 10, 2012
Docket2110274
StatusPublished

This text of 116 So. 3d 214 (Gold Kist, Inc. v. Smith) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gold Kist, Inc. v. Smith, 116 So. 3d 214, 2012 WL 3241718, 2012 Ala. Civ. App. LEXIS 220 (Ala. Ct. App. 2012).

Opinion

THOMAS, Judge.

Gold Kist, Inc. (“Gold Kist”), appeals from a judgment awarding workers’ compensation benefits to Delores Diane Smith. The Franklin Circuit Court found that Smith was permanently and totally disabled as a result of a work-related injury to her right ankle. We reverse and remand.

On November 22, 2006, Smith filed a complaint seeking workers’ compensation benefits, alleging that she had injured her right ankle in a work-related accident on December 3, 2004, and also asserting a retaliatory-discharge claim. On January 4, 2007, Gold Kist filed a motion to dismiss the complaint or in the alternative to stay the proceedings and compel arbitration. Smith filed a motion opposing Gold Kist’s motion to compel arbitration. On February 7, 2007, the trial court dismissed Smith’s retaliatory-discharge claim with prejudice. Thus, the only claim remaining was the workers’ compensation claim. On October 9, 2007, Smith filed an amended complaint alleging that she was permanently and totally disabled as a result of the December 3, 2004, injury to her ankle. Gold Kist filed an amended answer denying the material allegations of the amended complaint.

On May 10, 2011, the trial court conducted a trial at which it heard ore tenus evidence and numerous exhibits were offered into evidence. The evidence presented at trial indicated the following. The parties stipulated that Smith had fractured her right ankle in a December 3, 2004, injury that had arisen in the line and scope of her employment with Gold Kist. Smith testified that immediately following the injury she had been taken to Gold Kist’s nurse, Debbie Sharp, and that Sharp, without removing her boot or sock, had determined that Smith had pulled ligaments. She further testified that Sharp had sent her home with ice, ibuprofen, and instructions to elevate the ankle. Smith testified that the pain was so intense that she had a family member drive her to the emergency room where a medical professional confirmed that she had fractured the ankle and that the fracture required a surgical procedure. Dr. Edward Fisher performed the surgical procedure on Smith’s ankle, and he placed three screws and a plate in the ankle. Smith testified that, following the surgery, she complained to both Dr. Fisher and to Sharp that her toes, her foot, and her leg were burning and numb.

Following the surgical procedure, she testified that she returned to work at Gold Kist in the “pack out” division lining boxes. Smith testified that she continued to experience pain in her right ankle but that she continued to work. Specifically, she stated that “[she] started having shooting pains on the inside of [her] ankle, [her] toes felt like they were like flopping ... [a]nd [she] had like a blistering feel on the outside bone where the plate was.” Based on those symptoms, she continued to see Dr. Fisher regarding the December 2004 ankle injury.1 The medical records admitted [216]*216into evidence indicate that Smith had complained to Dr. Fisher that she had had trouble walking in February 2006, because, she said, her ankle becomes “aggravated” with excessive walking. Dr. Fisher suggested a second surgery to remove the hardware in order to alleviate some of Smith’s pain, and, on February 24, 2006, Dr. Fisher performed a second surgery in which he removed the hardware from Smith’s right ankle.

On March 16, 2006, Dr. Fisher released Smith back to work without any restrictions. Smith testified that she was returned to work with restrictions limiting her standing and walking and that, initially, Gold Kist provided her with a stool to allow her to rest but that eventually the stool was taken away causing her to have to stand too long on her injured ankle. She testified that she had requested to be transferred to the “tenders” division because, she opined, that work would be more in line with her limitations. However, she stated that her transfer request was never approved. She continued to see Dr. Fisher as a result of the pain associated with her ankle.

Carolyn Simms, Smith’s workers’ compensation case manager, testified that in April 2006 Smith requested a panel of four physicians pursuant to § 25-5-77(a), Ala. Code 1975. Simms testified that Smith informed her that she had determined that she would prefer to remain under Dr. Fisher’s care after having been provided with the panel of four physicians. In contrast, Smith testified that she had attempted to contact a physician on the panel-of-four list but that she had not been able to attain an appointment with that physician and, thus, had continued to see Dr. Fisher.

The medical records indicate that Smith complained to Dr. Fisher that the surgical incisions were tender and that she was experiencing some cramping in her toes on May 80, 2006. The records further indicate that on May 80, 2006, Dr. Fisher placed Smith at maximum medical improvement and sent her to work without any restrictions, noting that there was only minimal tenderness around the scars and that Smith’s range of motion was normal.

The medical records indicate that on October 12, 2006, Smith informed Dr. Fisher that she was having “a lot of trouble with her back” and was complaining “more about her ankle.” Specifically, the October 12, 2006, records indicate that “[Smith] [wa]s complaining of the toes flopping again, numbness on the top of the foot and sharp pain going up the medial side of the ankle.” Smith testified that she continued to experience pain in her ankle but that several physicians refused to see her because the injury was a workers’ compensation claim. She testified that Dr. Jerry Jenkins, her primary physician, referred her to Dr. David R. Long-mire, a physician concentrating in pain management and neurophysiology, to perform testing on the ankle in 2007.

Dr. Longmire’s deposition was admitted into evidence. In his deposition, Dr. Longmire testified that he had examined Smith on two occasions — once on August 14, 2007, for an initial consultation and then again on September 5, 2007, for an EMG, a nerve-conduction study. He testified that Smith complained of tingling on the lateral side of the right foot, shooting pain near her right heel, and that she had trouble with the movement of her toes. Additionally, he testified that Smith had complained of pain with light touching of [217]*217the foot. After conducting the nerve-conduction study and observing Smith, Dr. Longmire opined that she suffered from allodynia, which is the sensitivity to light touch. He stated that, as a result of the allodynia, even a light touch such as a sheet could be extremely painful. He further opined that, based on his observation of her movement, she suffered from mechanical allodynia, a gait disorder, because, he said, he had observed her walking in a way so as to not promote additional pain in her ankle by readjusting her weight. However, Dr. Longmire testified that he was not able to identify just a single nerve injury but that Smith’s pain symptoms related to other tissues. He further opined that one of Smith’s joints in her right foot was not functioning properly, which was causing the pain and abnormal sensations. He testified that, based on his limited testing, he could not determine whether Smith’s abnormality was a result of problems with her back or her right ankle or a combination of problems with her back and her ankle. He further testified that Smith had failed to make any further appointments following the September 5, 2007, appointment.

Smith testified that she had been unable to continue seeing Dr. Longmire due to financial limitations.

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Cite This Page — Counsel Stack

Bluebook (online)
116 So. 3d 214, 2012 WL 3241718, 2012 Ala. Civ. App. LEXIS 220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gold-kist-inc-v-smith-alacivapp-2012.