Smith v. Michelin North America, Inc.

785 So. 2d 1155, 2000 Ala. Civ. App. LEXIS 755, 2000 WL 1839518
CourtCourt of Civil Appeals of Alabama
DecidedDecember 15, 2000
Docket2990861
StatusPublished
Cited by10 cases

This text of 785 So. 2d 1155 (Smith v. Michelin North America, 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
Smith v. Michelin North America, Inc., 785 So. 2d 1155, 2000 Ala. Civ. App. LEXIS 755, 2000 WL 1839518 (Ala. Ct. App. 2000).

Opinion

785 So.2d 1155 (2000)

Phleshana Edrice SMITH
v.
MICHELIN NORTH AMERICA, INC.

2990861.

Court of Civil Appeals of Alabama.

December 15, 2000.

*1156 Penny D. Hays of Alabama Injury Lawyers, P.C., Birmingham, for appellant.

W.F. Horsley of Samford, Denson, Horsley, Pettey & Bridges, Opelika, for appellee.

ROBERTSON, Presiding Judge.

On October 7, 1999, Phleshana Edrice Smith sued her employer, Michelin North America, Inc. ("Michelin"), alleging that she had injured her knee in the line and scope of her employment and seeking benefits under the Alabama Workers' Compensation Act, § 25-5-1 et seq., Ala.Code 1975. Smith alleged that her injury occurred on September 16, 1998, and that she was disabled as a result. The case was tried before the trial court on March 20, 2000; the trial court entered its judgment on March 27, 2000.

In pertinent part, the judgment stated:

"FINDINGS OF FACT
"1. [Smith] and [Michelin] were both subject to the Alabama Workers' Compensation Law on September 16, 1998.
"2. [Smith] was involved in a work related accident on September 16, 1998, when she injured her right knee while picking up some material. When [Smith] picked up the material she turned, heard a pop in her knee, and felt excruciating pain in her knee. This accident arose out of [Smith's] employment, and [Smith] was acting within the line and scope of her employment when the accident occurred.
"3. Michelin received notice of [Smith's] accident as required by the Alabama Workers' Compensation Law.
"4. As of September 16, 1998, [Smith] was making an average weekly wage of $774.00 per week.
"5. The effect of the injury to [Smith's] right knee did not extend to any other parts of her body, and was exclusively confined to her right knee.
"6. Dr. Kurt Jacobsen, an orthopaedic surgeon in Columbus, Georgia, did arthroscopic surgery on [Smith's] right knee on October 30, 1998.
"7. [Smith's] right knee was injured in 1985 and 1997, but [Smith] had recovered from these injuries by the time she had the work related injury on September 16, 1998.
"8. As a result of the September 16, 1998, accident, Dr. Jacobsen awarded [Smith] a 5 percent permanent partial impairment to her right leg, and the Court finds that [Smith's] right leg is permanently impaired to the extent of 5 percent, and [Smith] has sustained a 5 percent loss of use of her right leg, as a result of the accident made the basis of this suit.
"9. [Smith] reached maximum medical improvement by November 1, 1999, at which time Dr. Jacobson was of the opinion that [Smith] could return to work with certain restrictions.
"CONCLUSIONS OF LAW
"1. The attorney for [Smith] argued, at the hearing of this case, that this Court should consider evidence of vocational disability because of Section 25-5-57(a)(3)i., *1157 Code of Alabama 1975. The Court has determined that this Code Section is inapplicable to this case, since the Code section specifically excepts scheduled injuries, and the Court has concluded that this case does involve a scheduled injury as provided in Section 25-5-57(a)(3)a.
"2. The attorney for [Smith] offered an affidavit and a report of a vocational expert (Plaintiffs Exhibit 10). The attorney for [Michelin] objected to the report, and the Court has sustained the objection. The Court concludes that the evidence was properly excluded because the Court has concluded that this case involves a scheduled injury, and the affidavit and report are not exceptions to the hearsay rule (see Rules of Evidence, Rule 803(6)).
"3. The Court has found, as a matter of fact, that the effect of [Smith's] injury to her right knee did not extend to other parts of her body, and was exclusively confined to her right knee. As a result of this finding of fact the Court concludes that [Smith's] recovery should be limited to the amount allowed under the schedule for injury to the leg. See the following cases: Bell v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968); Whitehead v. International Paper Co., 610 So.2d 400 (Ala.Civ.App.1992); E.C. Corp. v. Kent, 618 So.2d 1357 (Ala.Civ.App.1992); Sullivan, Long & Hagerty, Inc. v. Goodwin, 658 So.2d 493 (Ala.Civ.App.1994); Wolfe v. Dunlop Tire Corp., 660 So.2d 1345 (Ala.Civ.App.1995); and Patrick v. FEMCO Southeast, 565 So.2d 644 (Ala. Civ.App.1990).
"4. The Court concludes that since it has found, as a matter of fact, that [Smith] has sustained a 5 percent loss of use of her right leg she is entitled to be paid permanent partial disability benefits for 5 percent of 200 weeks, or a total of 10 weeks, and based on her average weekly wage, she is entitled to the maximum of $220.00 per week as provided in Code of Alabama 1975, Section 25-5-68(a).
"DECREE OF THE COURT
"It is ORDERED, ADJUDGED AND DECREED by the Court as follows:
"1. [Smith] shall have and recover of [Michelin] workers' compensation benefits in the amount of $220.00 per week to be paid to [Smith] by [Michelin] for a total of 10 weeks.
"2. Costs of Court are taxed against [Michelin].
"3. The Court makes no award of attorney fees, as attorney fees were not requested in the Complaint, and [Smith's] attorney did not request attorney fees at the hearing. In the event [Smith's] attorney wants to ask for an award of attorney fees, the Court will consider amending this order on proper motion."

Smith did not file a postjudgment motion, and she appealed to this court. She argues (1) that the trial court erred in finding that her knee injury was a scheduled injury, (2) that the trial court erred in determining that Smith's proffered evidence concerning Smith's vocational disability was inadmissible, and (3) that the trial court erred in not awarding her attorney a fee based on the compensation awarded.

In addition to the facts set out in the judgment, the record indicates that Smith began working for Michelin in May 1988. At the time or her injury, Smith was working as a tire builder. Her duties required moving product and tire racks weighing approximately 900 pounds, lifting 40-pound sidewall rolls to a height of six feet and removing 50-pound "green" tires from the manufacturing machines approximately *1158 175 times each day. Her injury occurred when she was lifting a roll of material to place on her machine.

The medical treatment performed on Smith was an arthroscopic repair of the medial meniscus ligament in her right knee. After Dr. Jacobsen performed this surgery, Smith received additional treatment for rehabilitation and pain management at the Hughston Clinic in Columbus, Georgia. After Smith reached maximum medical improvement, Dr. Jacobsen rated her disability as 5% of the right leg and 2% of the whole person. Dr. Jacobsen also noted that Smith reported no further trouble with her knee and that the joint recovery was progressing well. He recommended that Smith be released to work, subject to restrictions on her ability to bend, squat, or climb ladders. The medical evidence discloses no indication of an injury to any other part of Smith's body.

At the outset, we note that the evidence in this case is essentially undisputed.

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Bluebook (online)
785 So. 2d 1155, 2000 Ala. Civ. App. LEXIS 755, 2000 WL 1839518, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-michelin-north-america-inc-alacivapp-2000.