Morrow v. Dunlop Tire Corporation

772 So. 2d 1161, 1999 Ala. Civ. App. LEXIS 140, 1999 WL 112517
CourtCourt of Civil Appeals of Alabama
DecidedMarch 5, 1999
Docket2971073
StatusPublished
Cited by1 cases

This text of 772 So. 2d 1161 (Morrow v. Dunlop Tire Corporation) 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
Morrow v. Dunlop Tire Corporation, 772 So. 2d 1161, 1999 Ala. Civ. App. LEXIS 140, 1999 WL 112517 (Ala. Ct. App. 1999).

Opinions

CRAWLEY, Judge.

Kelly M. Morrow (the “worker”), an employee of Dunlop Tire Corporation (the “company”), was injured on March 16, 1996, when her right arm was drawn into a tire-building machine. The injury resulted in a displaced fracture of her right forearm. Because the injury was a crushing injury, the fracture was not simply a clean break in the bones of her forearm, but instead was a break in those bones with accompanying smaller fragments. The worker saw Dr. Louis G. Horn and underwent surgery to repair the arm, which resulted in the reattachment of the bone fragments with plates and screws.

The worker returned to work the first time on April 17, 1996. She attempted to resume her work as a master tire builder, but she could not make the production quota because she had difficulty cutting the rubber. She was later reassigned to a light-duty clerical position.

On April 14, 1997, Dr. Horn performed a second surgery to remove the plates and screws in the worker’s arm. The doctor testified that the areas under the plates and around the screw holes would be weak for approximately six weeks and that the worker was advised to increase the use of her arm gradually over this period of time. According to Dr. Horn, the worker appeared to be making regular progress after the second surgery. She returned to work after this second surgery, on May 12, 1997.

On May 14, the worker tripped and fell while carrying a basket of laundry at her home. She again fractured her right arm. According to Dr. Horn, the fracture was a nondisplaced fracture through one of the screw holes remaining from the prior injury. Dr. Horn placed the worker’s arm in a cast for several weeks, and she returned to work on August 11, 1997. The worker again attempted to resume her work as a master tire builder, but she was again unable to meet production quotas because of the difficulty she had cutting rubber.

The worker testified at trial about the difficulty she had when she attempted to return to work after both the first and the second injury. She testified that her arm would begin hurting and that her wrist would give out when she attempted to cut rubber as part of her duties as a master tire builder. She described the sensations in her arm as numbness and tingling in the top of her hand and on the top of her forearm, stiffness in her wrist, and numbness and stiffness up into her shoulder and neck. The worker also described the effect that the injuries to her arm have had on her everyday activities. She testified that she has tingling pain in her wrist and up her forearm to her elbow when she lifts objects like a gallon of milk or a pot on the stove. She further described the sensation as a pulling or pressure through her arm. She explained that, when lifting items like a pot on the stove, she would have to compensate for the loss of grip strength in her right hand by using her left hand as well.

The worker also explained that her right hand “feels like it’s got extra skin, which I can feel hot and cold, it’s just not as sensitive, I guess, as my left hand. And it’s like your foot being asleep, you know, if you hit it, it’s uncomfortable.” She testified that she could not apply steady pressure with her right hand, like the pressure one would use when using a hand to wash the car or to do gardening. She further said that, whenever she was able to complete a task requiring the application of [1163]*1163pressure with her right hand, her right hand and wrist would be stiff and painful the next day.

The trial court, after hearing the worker’s testimony and then considering the deposition testimony of Dr. Horn, concluded that the worker had suffered a compen-sable injury to her right arm; it awarded the worker benefits according to the schedule in Ala.Code 1975, § 25-5-57(a)(3). The trial court also determined that the worker’s second injury to her arm was not a compensable injury. The worker appeals, arguing that the effects of her injury extend beyond her arm, thus permitting an award in excess of the statutorily prescribed amount for an injury to the arm. See Bell v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968). She also argues that her second injury was indeed a compensa-ble injury because her first injury “contribute[d] to [her second] ... injury.” See Erwin v. Harris, 474 So.2d 1125, 1127 (Ala.Civ.App.1985).

The review of this case is governed by the new Worker’s Compensation Act, which states in pertinent part: “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)(2). Therefore, this court “will view 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 Industries, Inc., 680 So.2d 262, 269 (Ala.1996). Further, the trial court’s finding of fact is supported by substantial evidence if it is “supported by ‘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.’ ” Trinity Industries, 680 So.2d at 268-69 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989), and § 12-21-12(d)). Our review of legal issues is without a presumption of correctness. Ala.Code 1975, § 25 — 5—81(e)(1); see also Trinity Industries, 680 So.2d at 268.

Was the Worker’s Injury an Injury to a Scheduled Member?

The standard governing when compensation for an injury to a scheduled member is not limited to the amount specified by the statute was first defined by our supreme court in 1968. Bell v. Driskill, 282 Ala. 640, 646, 213 So.2d 806, 811 (1968). In Bell, the supreme court faced the same dilemma that is presented in this case: whether an injury to a scheduled member could be compensated for by an amount larger than the amount set by statute for that member. 282 Ala. at 645-46, 213 So.2d at 811. The worker in Bell had injured his foot or ankle on the job. 282 Ala. at 643, 213 So.2d at 809. After the injury, the worker continued to work for several months. 282 Ala. at 643, 213 So.2d at 809. He then had an operation on his knee. When he sued for compensation for his injury, the worker testified that he continued to have problems with his knee, from swelling at night to pain during his waking hours. 282 Ala. at 644, 213 Ala. at 809. The testimony also indicated that little improvement was expected. 282 Ala. at 644, 213 So.2d at 809.

The supreme court explained that, although the worker’s injury was to the knee, which would correspond to the leg, a scheduled member, the worker’s testimony and the court’s observation of the worker convinced the trial court that the worker had suffered more than an injury to the leg. 282 Ala. at 645, 213 So.2d at 810. The supreme court explained:

“[Ajlthough the injury itself- is to only one part or member of the body, if the effect of such injury extends to other parts of the body, and produces a greater or more prolonged incapacity than that which naturally results from the specific injury, or the injury causes an abnormal and unusual incapacity with respect to the member, then the employee is not limited in his recovery under [1164]*1164the Workmen’s Compensation Law to the amount allowed under the schedule for injury to the one member.”

282 Ala. at 646, 213 So.2d at 811. The Bell

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Related

Ex Parte Dunlop Tire Corporation
772 So. 2d 1167 (Supreme Court of Alabama, 2000)

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Bluebook (online)
772 So. 2d 1161, 1999 Ala. Civ. App. LEXIS 140, 1999 WL 112517, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morrow-v-dunlop-tire-corporation-alacivapp-1999.