
    Ruth LANTHRIP v. WAL-MART STORES, INC.
    2000276.
    Court of Civil Appeals of Alabama.
    Sept. 27, 2002.
    Certiorari Denied May 16, 2003 Alabama Supreme Court 1020118.
    
      Robert W. Lee, Jr., and Wendy N. Thornton of Lee & Thornton, P.C., Birmingham, for appellant.
    Thomas L. Oliver II and Joseph H. Driver of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellee.
   THOMPSON, Judge.

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 19, 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.”

In 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). That presumption may be rebutted by evidence of the worker’s inability to work or by evidence indicating that the worker’s postin-jury earnings are not a reliable indicator of the worker’s true earning capacity. In this case, the trial court specifically found that Lanthrip had failed to present evidence indicating that her postinjury earnings were an unreliable indicator of her earning capacity.

On appeal, Lanthrip argues that § 25-5-57(a)(3)i., Ala.Code 1975, required the trial court, in determining whether she had suffered a loss of earning capacity, to consider her wages from all sources of employment she maintained before and after her on-the-job injury. In her brief on appeal, Lanthrip contends that because she left her job with Security Engineers, her total postinjury earnings are now lower than her total preinjury earnings. However, as the trial court noted in its judgment, nothing in § 25-5-57(a)(3)i., Ala.Code 1975, requires that a trial court consider the earnings from employments other than the one in which the worker was injured in determining whether the worker suffered a loss of earning capacity.

Further, Lanthrip acknowledges that under another subsection of § 25-5-57, Ala.Code 1975, which governs the determination of her “average weekly earnings” for the purpose of calculating the amount of workers’ compensation benefits due, the trial court could consider only the wages Lanthrip earned from Wal-Mart. § 25-5-57(b), Ala.Code 1975. That section provides that “[a]verage weekly earnings shall be based on the wages, as defined in Section 25-5-l(6)[, Ala.Code 1975,] of the injured employee in the employment in which he or she was working at the time of the injury .... ” (Emphasis added.) Our supreme court rejected an argument that § 25-5-57(b) required that an injured worker’s wages from a second job be in-eluded in determining her average weekly wage for the purpose of calculating the workers’ compensation benefits for which her primary employer was liable. Ex parte Fryfogle, 742 So.2d 1258 (Ala.1999). The court concluded: “The plain meaning of the various pertinent provisions of the Workers’ Compensation Act is that the injured employee’s ‘average weekly wage’ is calculated by using the wages earned from the employer that directed the injured employee at the time of the injury.” Ex parte Fryfogle, 742 So.2d at 1261.

It would be inconsistent to conclude that wages from other employers may not be considered in calculating a worker’s average weekly earnings under § 25-5-57(b), Ala. Code 1975, but that those same wages from other employers may be used in determining whether the worker has suffered a loss of earning capacity under § 25-5-57(a)(3)i., Ala.Code 1975.

Subsections of a statute are to be construed in para materia in order to determine their meanings and intents. McCausland v. Tide-Mayflower Moving & Storage, 499 So.2d 1378 (Ala.1986).

In American Cast Iron Pipe Co. v. Uptain, 680 So.2d 378 (Ala.Civ.App.1996), overruled on other grounds, Ex parte Drummond Co., 837 So.2d 831 (Ala.2002), this court affirmed the trial court’s judgment, which was based on its consideration of evidence pertaining to the injured worker’s vocational disability. In that case, the injured worker returned to work at a higher hourly wage. The injured worker also operated a lawn-care business from which he earned more money than he could earn by working overtime for the employer. However, the injured worker presented evidence indicating that he was not physically capable of performing the work required for overtime with the employer, and that, because he could not work overtime, his average weekly earnings had declined. In affirming the trial court’s decision to consider vocational evidence, this court disregarded the income the injured worker received from his lawn-care business and determined that his postinjury earnings were lower than his preinjury earnings. American Cast Iron Pipe Co. v. Uptain, supra.

In Discovery Zone v. Waters, supra, during the course of his treatment for a back injury, the injured worker, Waters, lost his job with the employer. Waters then obtained employment at a higher salary with a different employer. This court concluded that because Waters’s postinju-ry earnings were higher than his preinjury earnings, he had suffered no loss of earning capacity. Discovery Zone v. Waters, supra. Lanthrip argues that this court should construe Discovery Zone v. Waters, 753 So.2d 515 (Ala.Civ.App.1999), as holding that earnings from all sources of employment should be included in determining whether a worker has suffered a loss of earning capacity. However, the facts of Discovery Zone v. Waters are distinguishable from the facts of this case. Also, nothing in the language of Discovery Zone v. Waters indicates that this court intended to provide such a broad construction of § 25-5-57(a)(3)i., Ala.Code 1975.

Nothing in the Workers’ Compensation Act or our caselaw provides or indicates that earnings from multiple employers should be considered in determining whether an injured worker has suffered a loss of earning capacity under § 25-5-57(a)(3)i., Ala.Code 1975. That subsection must be construed together with other provisions of the Workers’ Compensation Act, one of which provides that only the earnings derived from the employment in which the worker was injured are to be considered in determining a workers’ average weekly earnings. See § 25-5-57(b), Ala.Code 1975; Ex parte Fryfogle, supra. We conclude that the trial court correctly considered only Lanthrip’s earnings from Wal-Mart, the employer for whom she was working at the time of her on-the-job injury, in determining that Lanthrip had not suffered a loss of earning capacity. Therefore, we affirm.

AFFIRMED.

CRAWLEY and PITTMAN, JJ., concur.

MURDOCK, J., concurs in the result.

YATES, P.J., dissents.

MURDOCK, Judge,

concurring in the result.

This case presents a question of statutory construction as to which our Legislature has provided little guidance: whether an injured employee’s return to work in the same employment in which she was injured, when her postinjury wages from that employment are equal to or greater than the preinjury wages she earned from that employment, triggers the provisions of § 25 — 5—57(a)(3)i., Ala.Code 1975, even if the employee’s total postinjury wages are less than her total preinjury wages because she is unable to return to work for all of the employers for which she worked at the time of her injury. One can envision various policy concerns that would lend support to both the employer’s position and the employee’s position on this question. However, because this court is not a policy-making body, we are left in this case to reach a conclusion based on what little evidence of legislative intent can, with the aid of one decision by our Supreme Court on a related issue, be discerned from the statutory language and scheme of the Workers’ Compensation Act.

Upon my initial review of this case, it appeared to me that a holding in favor of the employer in regard to the question presented would be at odds with this court’s opinion in Discovery Zone v. Waters, 753 So.2d 515 (Ala.Civ.App.1999) (holding in favor of an employer based on § 25-5-57(a)(3)i., where an employee’s postinjury earnings in a job other than the job in which the employee was injured were higher than his preinjury earnings). Yet, in order to hold for the employee, it appeared that this court would have to reject the analysis implicit in American Cast Iron Pipe Co. v. Uptain, 680 So.2d 378 (Ala.Civ.App.1996) (declining to extend the benefit of § 25-5-57(a)(3)i. to an employer, apparently concluding that the employee’s ability to “return” to an employment other than that in which he was injured was not relevant for purposes of § 25-5-57(a)(3)i.). Upon further review of the question presented, I conclude that the employer should prevail in the present case.

Section 25-5-57(a)(3)g., Ala.Code 1975, provides that, except as otherwise “enumerated” in § 25-5-57(a)(3), compensation is to be a percentage of the difference between “the average weekly earnings of the worker at the time of the injury” and “the average weekly earnings he or she is able to earn” after the injury. Obviously, in order for such a formula to make sense, it must contemplate a comparison of like things. Clearly, therefore, when an employee holds more than one job at the time of a work-related injury, the formula was not intended to require a comparison of the employee’s postinjury earning capacity from all of the jobs in which the employee continues to work, on the one hand, with his or her preinjury earnings from only the one job in which the injury occurred, on the other hand. Nor can a meaningful computation be made based upon a comparison of an employee’s postinjury earning capacity from only the one job in which the employee was injured, with the employee’s total preinjury earnings from all of the jobs he or she held before the injury occurred. Logically, we must compute either the difference in the employee’s pre-injury earnings from the one job in which the employee was injured and his or her postinjury earning capacity in that same job, or we must compute the difference in the total preinjury earnings from all of the jobs held by the employee prior to the injury with the employee’s total postinjury earning capacity from all of those same jobs.

Neither of the above approaches is necessarily dictated by the Legislature’s references in § 25-5-57(a)(3)g. to “average weekly earnings.” Likewise, the provision in the first sentence of § 25-5-57(b), Ala. Code 1975, for compensation to be computed “on the basis of average weekly earnings” could be consistent with either approach. We are provided guidance, however, by our Supreme Court’s interpretation of the next sentence in § 25-5-57(b), which states that “[ajverage weekly earnings shall be based on the wages ... of the injured employee in the employment in ivhich he or she was working at the time of the injury.” (Emphasis added.) As the majority opinion correctly notes, uncertainty over the meaning of the emphasized clause was resolved by our Supreme Court in Ex parte Fryfogle, 742 So.2d 1258 (Ala.1999), when it held that this clause referred only to the particular employment in which the injury occurred, not all of the “employments” in which the employee was working at the time of the injury. Accordingly, I conclude that, in a case in which an employee returns to work in the particular job in which he or she was injured and earns wages in that job equal to or greater than those he or she earned in that job prior to the injury, it would be inconsistent with the method of calculating compensation benefits described in § 25-5-57(a)(3)g., as dictated by § 25-5-57(b) and the Supreme Court’s interpretation of that provision in Fryfogle, not to apply § 25-5-57(a)(3)i.’s return-to-work provision when the employee’s total post-injury wages are less than his or her total preinjury wages because the employee is unable to return to work at all of the jobs he or she held at the time of injury.

With respect to this court’s decision in Discovery Zone v. Waters, it appears from a closer examination of that case that, in fact, after his injury, the employee in that case did return for a period of time to the same employment in which he was injured. See 753 So.2d at 516-17. I therefore believe that the result in Discovery Zone can be reconciled with the result reached in the present case.

Citing Discovery Zone and Perneo Aeroplex, Inc. v. Moore, 775 So.2d 215 (Ala.Civ.App.1999), the employee in the present case also argues that her postinjury wages from the one job in which she was injured are not a reliable indicator of her postinju-ry earning capacity. Her brief to this court offers little discussion on this issue. Moreover, notwithstanding this court’s analysis in Discovery Zone and Perneo, I question whether such an argument, even if supported by the facts in a given case, can be made after the adoption of § 25-5-57(a)(3)i.

Prior to 1992, the Workmen’s Compensation Act merely provided that, in all cases not otherwise enumerated in § 25-5-57(a), an employee’s permanent partial disability was a function of the difference in the employee’s actual earnings before the injury and his or her capacity to earn after recovering from the injury. This court adopted a presumption that postin-jury earning capacity corresponded to actual postinjury earnings — whether equal to, greater than, or less than pre-injury earnings — but allowed this presumption to be rebutted by evidence indicating that the employee’s postinjury earnings were not a reliable indicator of his or her post-injury earning capacity. See Brown v. Champion Int’l Corp., 693 So.2d 24 (Ala.Civ.App.1996); Jim Walter Resources, Inc. v. Hall, 516 So.2d 690 (Ala.Civ.App.1987) (citing 2 A. Larson, The Law of Workmen’s Compensation § 57.21(d) (1987)). This approach helped prevent employers from simply paying full wages to an employee until the statute of limitations expired on the employee’s claim for permanent disability benefits. The Legislature, however, evidently perceived this judicial approach as providing significant compensation in many cases to undeserving employees, i.e., those who had lost little or no wages due to a work-related injury.

The legislative solution adopted in 1992 was a compromise that limited the amount of benefits available to employees who return to work making wages equal to or higher than those they made before their injury. With the adoption of § 25-5-57(a)(3)i., such employees are entitled to benefits based only on their degree of physical impairment; evidence of vocational impairment may not be introduced. To protect the employee, however, the statute allows a right of action beyond the general statute of limitations if the employee is subsequently terminated under certain circumstances. In reading § 25-5-57(a)(3)i., I see a straightforward rule that is not couched in terms of a presumption such as that which was employed by the courts prior to that statute’s adoption; nor do I see any language allowing an employee to rebut any such presumption.

While it is true that the Workers’ Compensation Act is to be construed so as to effect its beneficent purposes, we may not give the Act a construction not fairly and reasonably supported by its language. Ex parte Beaver Valley Corp., 477 So.2d 408 (Ala.1985).

Based on the foregoing, I concur in the result reached by the majority opinion.

YATES, Presiding Judge,

dissenting.

Because I believe that Lanthrip suffered a loss of earning capacity, I must respectfully dissent from the main opinion.

At the time of her injury, Lanthrip was working three jobs: she worked as a deli stocker at Wal-Mart, as a school bus driver, and as a security guard at Raytheon for Security Engineers. Following surgery on her left foot, Lanthrip returned to work at all three jobs. However, she was forced to leave her security-guard position because the injury to her foot prevented her from fulfilling the requirements of that job.

Lanthrip’s post-injury work at Wal-Mart was in a different position than her pre-injury job — one that required the performance of duties that were within her permanent restrictions. At the time of her injury, and when she initially returned to work at Wal-Mart, Lanthrip earned $6.00 per hour. At the time of trial, Lanr thrip was working as a greeter at Wal-Mart earning $8.30 per hour. Although Lanthrip was unable because of her injury to work as many hours each week at Wal-Mart as she did before her injury, because she received a higher hourly wage, her earnings from Wal-Mart after she reached maximum medical improvement were greater than her earnings from Wal-Mart before her injury.

After her injury, Lanthrip also returned to work as a school bus driver at her pre-injury hours and hourly wage. The evidence tended to indicate, however, that because Lanthrip ultimately was unable to continue her employment as a security guard, her total earnings from all her jobs at the time of trial were less than her total earnings from all her jobs before her injury.

Lanthrip argues that, although only her wages at Wal-Mart could properly be considered in determining the “average weekly wage” upon which Wal-Mart must base its workers’ compensation payments to her (see § 25-5-57(b), Ala.Code 1975), all of her employment should be considered in determining whether she suffered a loss of earning capacity. The trial court rejected this argument. Because Lanthrip’s post-injury earnings at Wal-Mart, alone, were equal to or greater than her earnings at Wal-Mart before her injury, the trial court concluded that Lanthrip met the “return-to-work” provisions of § 25-5-57(a)(3)i., and was presumed to have no loss of earning capacity.

When an injury to an employee covered under the Workers’ Compensation Act results in permanent-partial disability, § 25-5-57(a)(3)a., Ala.Code 1975, provides, in part, that the employee’s compensation under the Act shall be based upon “the extent of the disability.” When the injury is not to a scheduled member under § 25-5-57(a)(3)a., compensation is further governed by § 25-5-57(a)(3)g., which provides, in pertinent part, that

“compensation shall be 66 2/3 percent of the difference between the average weekly earnings of the worker at the time of the injury and the average weekly earnings he or she is able to earn in his or her partially disabled condition, subject to the same maximum weekly compensation as stated in Section 25-5-68.”

As this court held in Discovery Zone v. Waters, 753 So.2d 515 (Ala.Civ.App.1999):

“According to [§ 25-5-57(a)(3)g., Ala. Code 1975], 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).
“Section 25-5-57(a)(3)i., Ala.Code 1975, governs the award of permanent partial-disability benefits when a claimant returns to work at a wage higher than the wage he was earning at the time of his injury. That section provides in pertinent part that if
“ ‘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.’
“ § 25 — 5—57(a)(3)i.”

753 So.2d at 517.

The strictures of § 25-5-57(a)(3)i. apply when an injured worker returns to work at a wage equal to or greater than his or her pre-injury wage. No reference is made in § 25-5-57(a)(3)i. to a return to work in the same employment in which the worker was injured. Thus, in Discovery Zone, this court applied the above presumption of no loss of earning capacity when the employee returned to work for a different employer than that for which he was working at the time of his injury, because he earned higher wages than he had earned before his injury. 753 So.2d 515.

In fairness and logic, if returning to work in a different employment (indeed, with a different employer) than that in which the employee was injured is to be considered for purposes of determining whether the return-to-work requirement of § 25-5-57(a)(3)i. is satisfied, it stands to reason that the inability to return to work in a different employment than that in which the employee was injured (but at which the employee actually was employed at the time of the injury) must be considered for the same purpose. In this case, because she was unable to return to one of the three employers with whom she was working at the time of her injury, Lan-thrip’s total earnings after her injury were less than her total earnings before the injury. Therefore, § 25-5-57(a)(3)i. and the presumption that an employee has suffered no loss of earning capacity when her post-injury wages are the same or higher than her pre-injury wages, are not applicable.

The employer notes that the calculation of average weekly wages under the Workers’ Compensation Act is based upon wages earned in the employment in which the employee was injured, and that this court ought to apply this same standard to the term “wage” in § 25-5-57(a)(3)i. The statutes governing these two determinations are different, however. The calculation of the average weekly wage is governed by § 25-5-57(b), which specifically provides for a calculation based on the “wages ... of the injured employee in the employment in which he or she was working at the time of the injury.” See Ex parte Fryfogle, 742 So.2d 1258 (Ala.1999). In contrast, the restrictions of § 25-5-57(a)(3)i. apply merely when an injured worker returns to work under the specified conditions. The latter statute does not, by its terms, limit itself to a return by an employee to “the employment in which [the injured employee] was working at the time of the injury.”

The employer also argues that, because a second job taken by the employee in American Cast Iron Pipe Co. v. Uptain, 680 So.2d 378 (Ala.Civ.App.1996), was not considered by this court for purposes of calculating the employee’s wages under § 25-5-57(a)(3)i., the employee’s inability in the present case to perform a “second job” should not be considered for that purpose. There is a tension between the holding in Uptain and the more recent holding of this court in Discovery Zone. I note that the Uptain court did not expressly analyze the proper manner in which § 25 — 5—57(a)(3)i. should be construed. I believe that the analysis set forth above is the better-reasoned approach to the issue presented; therefore, I must respectfully dissent. 
      
      . This case was originally assigned to another judge on this court. This case was reassigned to Judge Thompson on July 29, 2002.
     
      
      . Furthermore, the employee's job with Discovery Zone (the employment in which he was injured) was simply eliminated by the employer some time after the employee returned to that job, and the job that the employee then took with the City of Homewood merely took the place of the Discovery Zone job. 753 So.2d at 516. It appears from this court's discussion that the City of Homewood job was equally or more demanding on the employee than the job in which the employee was injured; there was no indication in Discovery Zone, as there was in American Cast Iron Pipe Co. v. Uptain, that the employee failed to earn equal or higher post-injury wages from the same employment in which he was injured because he was unable to do so. Compare Discovery Zone, 753 So.2d at 517-18, with Uptain, 680 So.2d at 379-80. See also 1 Terry A. Moore, Alabama Workers’ Compensation § 13:52 (1998).
     
      
      . When she initially returned to work at Wal-Mart following her injury, Lanthrip's limitation was that she was required to sit 100 percent of the time; eventually, this was changed to require her to sit 80 percent of the time.
     