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10/07/94 LEHIGH PORTLAND CEMENT COMPANY v. JOEL

October 7, 1994

LEHIGH PORTLAND CEMENT COMPANY
v.
JOEL YEAGER



Appeal from Jefferson Circuit Court. (CV-93-455). Josh N. Mullins, TRIAL JUDGE.

Released for Publication December 7, 1994.

Robertson, Presiding Judge. Thigpen and Yates, JJ., concur.

The opinion of the court was delivered by: Robertson

ROBERTSON, Presiding Judge

On January 19, 1993, Joel Yeager filed a complaint in the Jefferson County Circuit Court, seeking workmen's compensation benefits for a March 4, 1991, injury to his right foot arising out of and in the course of his employment with Lehigh Portland Cement Company.

Following an ore tenus proceeding on November 12, 1993, the trial court, on December 13, 1993, entered its final judgment finding that Yeager had sustained a permanent partial disability as a result of his on-the-job injury; that the injury was to the body as a whole; and that Yeager had sustained a 15% loss of his earning capacity due to his injury.

On January 12, 1994, Lehigh filed a post-judgment motion seeking a new trial; an amendment of the findings; an amendment of the judgment; or an alteration of the judgment. The trial court denied Lehigh's motion; however, the trial court modified two stipulations, as requested by Lehigh, so that the record would correctly reflect the evidence stipulated to by the parties.

Lehigh appeals, contending (1) that Yeager's workmen's compensation benefits should have been limited in accordance with the "scheduled injury" provisions of § 25-5-57(a)(3)a., Ala. Code 1975; and (2) that Yeager failed to rebut the presumption that he had suffered no loss of earning capacity.

At the outset, we note that in reviewing workmen's compensation cases, this court must first determine whether there exists any legal evidence to support the trial court's findings. Ex parte Veazey, 637 So. 2d 1348 (Ala. 1993). Then, if such evidence is found, this court must determine whether one reasonable view of that evidence supports the trial court's judgment. Id.

Lehigh contends that Yeager's workmen's compensation benefits should have been limited in accordance with the scheduled injury provisions of § 25-5-57(a)(3)a., Ala. Code 1975. Our supreme court stated in Bell v. Driskill, 282 Ala. 640, 646, 213 So. 2d 806, 811 (1968):

"Although 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 the Workmen's Compensation Law to the amount allowed under the schedule for injury to the one member."

At the time of trial, Yeager was a 37-year-old plant engineer with Lehigh and had worked at Lehigh for 11 years, since graduating from Penn State University. Yeager was injured on the job when a forklift struck him from behind, knocking him down and running over his right foot. As a consequence of the accident, he suffered the loss of the fifth toe, the loss of one-half of the third toe, and the removal of the bone in the fourth toe. In addition, the tissue and muscle over the top of Yeager's foot died, requiring a corrective skin graft to that area. At the time of trial, Yeager had returned to full-time employment with Lehigh.

Yeager testified that as a result of his injury his right foot swells; he experiences a significant amount of pain when he stands on the foot for more than an hour or two; his foot has become sensitive to cold weather; and he can no longer participate in recreational activities that involve a significant amount of lateral motion, because of the resulting pain. Yeager also testified that, in order to compensate for the loss of his toes and to maintain his balance, he turns his right foot out, causing a twisting action to the knee that becomes painful by the end of the day.

Dr. Joe Sherrill, Yeager's orthopedic surgeon, testified by deposition that Yeager is able to do "walking-like" activities with minimal pain, but that he is unable to do some of the things that he could do before his injury. Specifically, Dr. Sherrill found that when Yeager does more than "walking-like" activities, he has some pain and some limitation because of the inadequate lateral support from his toes. Dr. Sherrill determined that Yeager had a 7% impairment ...


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