Lanthrip v. Wal-Mart Stores, Inc.

864 So. 2d 1079, 2002 Ala. Civ. App. LEXIS 744, 2002 WL 31133373
CourtCourt of Civil Appeals of Alabama
DecidedSeptember 27, 2002
Docket2000276
StatusPublished
Cited by4 cases

This text of 864 So. 2d 1079 (Lanthrip v. Wal-Mart Stores, Inc.) 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
Lanthrip v. Wal-Mart Stores, Inc., 864 So. 2d 1079, 2002 Ala. Civ. App. LEXIS 744, 2002 WL 31133373 (Ala. Ct. App. 2002).

Opinions

THOMPSON, Judge.1

Ruth Lanthrip sued her employer, Wal-Mart Stores, Inc., seeking to recover workers’ compensation benefits for an on-the-job injury to her left foot. After conducting an ore tenus hearing, the trial court, on July 31, 2000, entered a judgment in which it, among other things, found that Lan-thrip had suffered no loss of earning capacity and determined that Lanthrip had suffered a 2% permanent partial disability to the body as a whole. Lanthrip filed a postjudgment motion; the trial court denied that motion. Lanthrip appealed.

The Workers’ Compensation Act, § 25-5-1 et seq., Ala. Code 1975, provides that this court may not reverse a trial court’s findings of fact if those findings are supported by substantial evidence. § 25-5-81(e)(2), Ala.Code 1975. “[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.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). Further, this court reviews the facts “in the light most favorable to the findings of the trial court.” Whitsett v. BAMSI, Inc., 652 So.2d 287, 290 (Ala.Civ.App.1994), overruled on other grounds, Ex parte Trinity Indus., Inc., 680 So.2d 262 (Ala.1996).

The trial court’s judgment sets forth the relevant facts of this case as follows:

“[Lanthrip] is a 42-year-old female who was injured on the job while working for Wal-Mart on September 19, 1997. She was treated initially by the Coosa Valley Baptist Emergency Room and then released. Although [Lanthrip] complains that her pain worsened throughout the year following the accident, she managed to work 35 hours a week as a bus driver for Talladega County and 20 hours a week as a security guard for Security Engineers, all in addition to working full-time at Wal-Mart. At every job, she was able to perform all of the duties she had prior to the injury except she was unable to patrol the lake on foot, but [Security Engineers] allowed her to patrol in her vehicle.
“Dr. Alan Sather diagnosed the Plaintiff with Morton’s neuroma on August [1081]*108119, 1998, and took her off work at Wal-Mart until October 17, 1998. [Lanthrip] ultimately did not return to work at Wal-Mart even though she was released to return to light duty on October 17[, 1998]. She continued to work 55 hours a week for her other two employers during this time, however. [Lanthrip] then chose Dr. Victoria Masear from a panel of four physicians; Dr. Masear performed surgery on her foot on November 20, 1998. Dr. Masear subsequently excused [Lanthrip] from all of her jobs until December 7, 1998, when she was allowed to return to work with a 100% sitting restriction. She immediately began working her other two jobs, but chose not to return to work at Wal-Mart until January 6, 1999. She began working for Wal-Mart as a switchboard operator and is currently employed full-time as a door greeter, both of which fall within her [work] restrictions.
“On May 13, 1999, Dr. Masear placed [Lanthrip] at maximum medical improvement and assigned a physical/medical impairment rating of 8% to the left foot, 6% to the left lower extremity, and 2% to the body as a whole. [Lanthrip] currently wears orthotics in her athletic shoes along with support stockings. She is able to drive her personal automobile without problems, but is unable to perform certain physical activities such as hiking and dirt biking. [Lan-thrip] manages her pain with over-the-counter pain medications.
“[Lanthrip] testified that she is able to perform her current job at Wal-Mart because it is within her restrictions. Although she appears to be a very hard worker, she was able to return to work there earning more money than she received prior to her injury, thus establishing the presumption that she suffered no loss of earning capacity. [Lanthrip] failed to present substantial evidence to rebut this presumption. This court finds that she has suffered no loss of earning capacity and awards permanent partial disability benefits based on her medical impairment rating alone.”

At the hearing on this matter, Lanthrip testified that she had recently stopped working for Security Engineers; she asserted that, because of her injury, she was unable to perform the requirements of that job. Lanthrip also testified that after her injury, she worked fewer hours at Wal-Mart than she had before her injury. However, Lanthrip testified that, because her hourly wage at Wal-Mart was higher after her injury than it was before the injury, her post-injury earnings at Wal-Mart were as much or more than her pre-injury earnings at Wal-Mart. In its judgment, the trial court determined that Lan-thrip had suffered a permanent partial disability, but it also determined that because Lanthrip had returned to work at Wal-Mart at a wage higher than her preinjury wage at Wal-Mart, it could not, pursuant to § 25 — 5—57(a)(3), Ala.Code 1975, consider evidence of vocational disability.

When an injured worker returns to work at a higher wage than he or she earned before his or her injury, the determination of any permanent partial disability benefits to which the worker is entitled is governed by § 25-5-57(a)(3)i., Ala.Code 1975. That section provides, in part:

“If, on or after the date of maximum medical improvement, ... an injured worker returns to work at a wage equal to or greater than the worker’s pre-injury wage, the worker’s permanent partial disability rating shall be equal to his or her physical impairment and the court shall not consider any evidence of vocational disability.”

[1082]*1082In interpreting § 25-5-57(a)(3)i., this court has stated:

“Under the Workers’ Compensation Act, compensation due an employee for an injury to a nonscheduled member is governed by § 25-5-57(a)(3)g., Ala.Code 1975. According to that section, a permanent, partial disability is compensable according to the claimant’s loss of earning capacity.
“ ‘For a permanent partial injury, the measure of workmen’s compensation is loss of earning capacity. If an employee’s post-injury wages are the same or higher than his pre-injury wages, a presumption arises that no loss of earning capacity has occurred. The presumption may be rebutted by evidence which demonstrates incapacity or which explains why the higher wages are an unreliable basis for determining the employee’s earning capacity.’
“Johnson v. Alabama Power Co., 670 So.2d 39, 41-42 (Ala.Civ.App.1993) (citations omitted); see, e.g., Bolding v. Fluorocarbon Co., Reeves Rubber Div., 660 So.2d 1308, 1310 (Ala.Civ.App.1995) (holding that claimant’s loss of earning ability is the determining factor); and Smither v. International Paper Co., 540 So.2d 760, 762 (Ala.Civ.App.1989) (stating that the amount of compensation due an employee is governed by § 25-5-57(a)(3)g. and that loss of earning ability is the determining factor).”

Discovery Zone v. Waters, 753 So.2d 515, 517 (Ala.Civ.App.1999).

Thus, if the injured worker receives higher earnings after returning to work than the worker received before the injury, there is a presumption that the worker’s earning capacity is greater than his or her earning capacity before the injury. Marley Erectors, Inc. v. Rice, 585 So.2d 1379 (Ala.Civ.App.1991).

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Bluebook (online)
864 So. 2d 1079, 2002 Ala. Civ. App. LEXIS 744, 2002 WL 31133373, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lanthrip-v-wal-mart-stores-inc-alacivapp-2002.