McGhee v. International Paper Co.

• Decision Date: 26 February 1999
• Docket Number: No. 2971185.,2971185.
• Parties: Andrew McGHEE v. INTERNATIONAL PAPER COMPANY d/b/a Maplesville Mill.
• Court: Alabama Court of Civil Appeals

729 So.2d 880

Andrew McGHEE v. INTERNATIONAL PAPER COMPANY d/b/a Maplesville Mill.

No. 2971185.

Court of Civil Appeals of Alabama.

February 26, 1999.

Tom L. Larkin of Tipler Law Offices, Birmingham, for appellant.

Roy W. Scholl III, Birmingham, for appellee.

THOMPSON, Judge.

In April 1995, Andrew McGhee, an employee of International Paper Company, suffered an injury to his left hand while feeding lumber into a feeder machine. He ultimately underwent surgery to that hand on September 14, 1995, to repair the damage caused by the accident. He sued for workers' compensation benefits that he claimed the company owed him as a result of that accident. During a bench trial, the parties made a number of stipulations, which the court incorporated into its final judgment. The sole issue that remained for the trial court to decide was the amount of temporary total disability benefits owed to McGhee.

Following a hearing during which the trial court heard oral arguments from the attorneys and considered stipulations, depositions and exhibits, but took no testimony, the trial court entered a judgment that provided in pertinent part:

"The court finds that [McGhee] was released to work as tolerated by his treating physician, on October 17, 1995, and that subsequently [McGhee] sought treatment from Dr. Victoria Masear on November 16, 1995. The Court finds that Dr. Victoria Masear removed the plaintiff from work on November 16, 1995 until May 2, 1996, when she released [McGhee] to work without restrictions. The Court also finds that [McGhee] was due to receive 24 weeks of back temporary total disability benefits for the period of November 16, 1995, through May 2, 1996...."

McGhee appealed, challenging the trial court's award of temporary total disability benefits. He contends that the trial court erred in determining that his temporary total disability benefits terminated as of the date on which Dr. Masear approved his return to work with no restrictions. He argues that he should have been awarded temporary total disability benefits through the date on which he reached maximum medical improvement. We agree.

The evidence presented to the trial court consisted of stipulations, depositions, and exhibits. The trial court heard no oral testimony; therefore, the ore tenus principle does not apply. Whitehead v. Hester, 512 So.2d 1297, 1299 (Ala.1987). Accordingly, this court must review this issue de novo, by applying established legal principles to the evidence contained in the record on appeal. Id. Further, appellate review of pure legal issues in a workers' compensation case is without a presumption of correctness. Ala. Code 1975, § 25-5-81; Flesher v. Saginaw Div., General Motors Corp., 689 So.2d 113 (Ala.Civ.App.1996).

"Temporary total disability refers to `the healing period during which an employee is recovering and unable to work.'" Ex parte Moncrief, 627 So.2d 385, 387 (Ala.1993)(quoting Haywood v. Russell Corp., 611 So.2d 365, 367 (Ala.Civ.App.1992)). "A determination of when maximum medical improvement is reached depends on the circumstances of each case." Pemco Aeroplex, Inc. v. Johnson, 634 So.2d 1018, 1020 (Ala.Civ. App.1994).

The medical records submitted to the trial court reflect that Dr. Andrew Hilliard performed surgery on McGhee's hand on September 14, 1995, and released him to work "as tolerated" on October 17, 1995. McGhee testified in his deposition that he returned to work on October 18, 1995, and was assigned to his former job, operating the drop sorter. McGhee explained in his deposition that this job involved shifting heavy metal levers to stop the assembly line in the event of an obstruction. McGhee explained in his deposition that he performed this job for approximately four hours, until he realized that his hand was extremely swollen; that when he showed his swollen hand to his supervisors, they sent him home and referred him to a local clinic for treatment; that the doctor who treated McGhee at the clinic advised him to avoid putting any weight at all on his hand; that the doctor advised him to remain off work for a couple of days; and that after October 18, 1995, he never returned to work for International Paper. It is unclear from his testimony whether he was terminated by International Paper or whether he voluntarily resigned. McGhee testified that he worked for a soft drink company for approximately three months, from August 1996 until November 1996, earning a weekly wage of $312. His job with the soft drink company involved driving a truck and stocking vending machines at various stores and schools. McGhee explained that he resigned that job because his hand swelled when he lifted the boxes of drinks.

McGhee explained in his deposition testimony that in November 1995, he sought treatment of his hand from Dr. Victoria Masear, an orthopedic surgeon. Dr. Masear stated in her deposition that upon her initial examination of McGhee, she noted that he was suffering from pain in his hand and numbness in his thumb as a result of nerve. damage. Dr. Masear concluded that these symptoms were secondary to the "crush injury" he had suffered in April 1995. She described McGhee as a "compliant patient" with an above-average tolerance for pain. She explained that she treated McGhee with a regimen of splints, therapy, and a TENS unit. Describing the circumstances under which she released McGhee on May 2, 1996, to return to work, Dr. Masear testified in her deposition as follows:

"Well, I told him that he would not have any dexterity in the hand. I didn't actually place any restrictions on him. Andrew told me that he needed to go back to work financially and asked me to release him. So I told him I would release him without restrictions but that he would not be able to do heavy lifting; that he wouldn't do any harm to his hand but it just might make it hurt. But he also did not have the dexterity in the hand and he needed to find a job that would fit within those limitations."

Further, in a letter Dr. Masear wrote to McGhee's attorney on June 21, 1996, she stated:

"I did not release him to work until May 2, 1996. I released him at that time because Andrew informed me that he had to work. I have instructed him that he is unable to do any lifting with his left hand because he does

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