State News : Alabama

Imperial Aluminum-Scottsboro, LLC v. Taylor

Released July 24, 2015

The employee filed suit against the employer asserting a workers’ compensation claim, retaliatory discharge and the tort of outrage. Upon the case being filed the employer filed a Rule 21 Motion to Sever the workers’ compensation claim from the retaliatory discharge claim and outrage claim. This included a request that a new case number be assigned to the discharge and outrage claims. However, the trial court entered an order under Rule 42(b) bifurcating the issues and calling for separate trials only. A new case number was ever issued. The discharge and outrage claims were tried before a jury prior to the workers’ compensation case being heard. The outrage case was dismissed but the jury awarded compensatory and punitive damages to the employee based on the discharge claim.

The employer appealed the jury verdict awarding the employee compensatory and punitive damages as a result of his retaliatory discharge claim. The Alabama Court of Civil Appeals ruled that the retaliatory discharge verdict was not a final order and could not be appealed because the Court had not ruled on the workers’ compensation claim that was still pending under the same case number.

My Two Cents

Based on this ruling, we must assume that the opposite would apply and a ruling in a workers’ compensation case would not be final and appealable while related tort claims are still pending. This creates an issue for employers and employees in cases where the employer or employee wants to appeal an adverse verdict in a workers’ compensation case that also had a related tort claim still pending under the same case number. In cases were the employer is ordered to pay benefits, would the employer have to go ahead and pay the worker’s compensation benefits ordered despite it’s desire to appeal the decision or would the pending tort claim stay the workers’ compensation order and prevent the employee from recovering until the tort claim was decided and the deadline to appeal had run. In cases where the employee wanted to appeal and adverse verdict they would not be able to have their appeal on the workers’ compensation case heard until the tort claims were decided. In cases where this may present an issue, it may be advisable for the parties to request a Rule 21 Severance with a new case number instead of Rule 42(b) Separate Trial order where the tort and workers’ compensation claims remain under the same case number.

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ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish, Nelson & Holden, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.

The Alabama Court of Civil Appeals recently reversed an order based on a trial court’s decision which only found the employee suffered a physical impairment to her shoulder and did not explicitly address loss of earning ability. InBillingsley v. City of Gadsden, the employee made a claim for workers’ compensation benefits for an injury to her shoulder, and other parts of her body, following an on-the-job automobile accident. Notably, the employee stopped working for the employer a few months after her accident, but prior to reaching maximum medical improvement. As a result, upon reaching MMI, she was not earning the same or greater wages than that which she was earning prior to the accident.

The court determined that the employee’s shoulder injury was compensable, but found that the other conditions had either resolved or were preexisting. In its order, the trial court determined the employee had sustained a 25% physical impairment to her shoulder, and awarded permanent partial disability benefits based on this finding of physical impairment. The decision was appealed.

The Appeals Court agreed that the body parts other than the shoulder were not compensable, but it disagreed with the trial court’s award of benefits based on a finding of physical disability, alone. The Appeals Court noted that an injury to an employee’s shoulder is not included in the Act’s schedule, and therefore, an award for a shoulder injury can only be upheld when the court makes an express finding regarding an employee’s loss of ability to earn. Although physical disability may be a preliminary foundation for finding loss of earning ability, the court must also explicitly address loss of earning ability when the employee has not returned to work earning the same or greater wages. By failing to address the employee’s loss of earning ability, the trial court’s decision provided no basis for an award. The case was therefore remanded with instructions for the trial court to determine the extent, if any, to which the employee’s injury affected her ability to earn income, and to award the employee benefits accordingly.

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About the Author

This post was written by Trey Cotney, Esq., of Fish Nelson & Holden LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of the National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at tcotney@fishnelson.com or any firm member at 205-332-3430.

On June 26, 2015, the Alabama Court of Civil Appeals released its decision in Pat Tate as Administrator of the Estate of Michael Traffanstedt v. Liberty Mutual Insurance Company and Dover Corporation. In 2006, Traffanstedt entered into an agreement to settle his workers’ compensation claim against his employer, Dover Corporation. That settlement left future medical benefits open. In 2011, Traffanstedt and Dover entered into a second settlement agreement regarding his future medical benefits, but the trial court rejected the settlement. In 2013, Traffanstedt and Dover again entered into an agreement for the settlement of his future medical benefits, and scheduled a hearing before the trial court for approval. Dover’s insurance carrier, Liberty Mutual, issued a check in the amount of $70,000 for the settlement, contingent upon court approval. However, Traffanstedt died before the settlement hearing, and Liberty Mutual refused to honor the check. Tate, the Administrator of Traffanstedt’s estate, sued Liberty Mutual and Dover, alleging breach of contract. Liberty Mutual and Dover took the position that they were not bound by the settlement agreement because it had not yet been court-approved prior to Traffanstedt’s death. They also asserted that the exclusivity provisions of The Alabama Workers’ Compensation Act barred Tate’s claims for breach of contract. The Trial Court entered Summary Judgment in favor of Liberty Mutual and Dover, and Tate appealed.

In its analysis, the Court of Appeals noted that workers’ compensation settlements, including the one at issue, are handled differently under the law than other settlements, such as those involving tort claims. The Court also stated that workers’ compensation settlements were different even than settlements involving a minor, in that a settlement contract between a minor and insurer is voidable at the election of the minor, whereas workers’ compensation settlements for less than the amount of compensation provided for in the Act are contingent upon Court approval. Therefore, the Court held that workers’ compensation settlements are not valid for any purpose until approved by the Court.

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ABOUT THE AUTHOR

This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.

On June 26, 2015, the Alabama Court of Civil Appeals released its opinion in Todd Entrekin, Etowah County Sheriff v. Jerry Frederic Lasseter.  At the trial court level, the employee petitioned the court for an order compelling the employer to provide medical treatment for his lower back.  Treatment for the lower back had been provided by the employer prior to the settlement.  When the parties settled, however, the settlement agreement specified that future medical was to remain available for T-11 and T-8 levels of his back.  Despite this language, the trial court granted the petition and issued an order compelling the treatment.  On appeal, the Court of Appeals reversed the trial judge because the language in the settlement agreement specifically limited the employee’s right to future medical benefits to the two specified levels of his spine.

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About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish, Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him atmfish@fishnelson.com or by calling him directly at 205-332-1448.

On June 19, 2014, the Alabama Court of Civil Appeals released its second opinion inGoodyear Tire & Rubber Co. v. Bush (). The first time around the Court of Appeals addressed several issues. On appeal the first time the Court of Appeals remanded the case to the trial court since it had not issued findings of fact and conclusions of law to support it’s finding that the employee’s knee injury affected the use and efficiency of other parts of his body. On appeal the second time, the only issue was whether or not the trial court’s ruling that the employee’s knee injury should be removed from the schedule, allowing for a permanent and total disability finding, was supported by substantial evidence.

At trial testimony from the authorized treating physician was presented that established the employee would ultimately need a knee replacement and would have continued discomfort. The doctor also testified that the knee injury resulted in the following restrictions: 1) no lifting, pushing or pulling over 20 pounds; 2) no bending at the waist, crouching, kneeling, stooping, or squatting; 3) no climbing stairs, ladders, or poles: and 4) avoid navigating unprotected heights since the right knee had reduced balance and stability. The doctor at no point testified that the right knee affected any other body parts. The doctor also did not testify that the restrictions issued arose from problems the employee was having with other body parts. The medicals records presented at trial also indicated that the employee complained solely of right knee pain and dysfunction during each medical visit. The physical therapy records noted hip flexion and extension of 4/5 and 4+/5 but did not state this was an abnormality nor did it state it was due to the right knee injury. The employee testified that he injured his back in 1978 and would still occasionally experience flare-ups and have to take nonprescription pain medication. He testified that the preexisting condition also caused him to limp prior to the on the job injury. In fact, evidence revealed that the employee told his vocational expert that his occasional lower back pain was not related to the right knee. The employee did testify that he now takes Lortab for pain but only for his knee pain. At no time did the employee testify that the right knee injury affected other parts of his body and, in fact, testified to the contrary. Finally, the evidence was undisputed that the employee could not return to his former occupation due to the permanent light duty restrictions placed on him by his doctor.

Based, on the above testimony the trial court found the employee had a preexisting back condition but now, as a result of the knee injury, he could no longer perform his duties. They also found that the doctor stated the knee injury affected his body as a whole. As such, the trial court found medial testimony sufficiently connected dysfunction to other body parts as a result of the knee injury. The trial court stated that the doctor had no reason to issues restrictions related to the other body parts because the restrictions issued for the knee would encompass the restrictions to the other body parts. Finally, the court supported its decision based on its observation of the employee limping and using furniture to steady himself as he walked around the courtroom.

The Alabama Court of Appeals disagreed with the trial court and found there was not sufficient evidence to remove the knee injury from the schedule. The Court of Appeals stated that the decision comes down to a question of medical causation: Is there substantial evidence that the effects of the injury to the scheduled member extends to other body parts and that those effects cause or contribute to pain, limitations, or other symptoms in those body parts.Boise Cascade Corp. v. Jackson. The Court of Appeals acknowledged that medical testimony was not required to prove medical causation on the issue of the injury affecting or extending to non-scheduled body parts. The Court of Appeals also pointed out that medical causation could be established on this issue based lay testimony and/or observations of the trial court. However, in this case the Court of Appeals found that the medical testimony established that the knee injury did not extend into other body parts and the fact that the doctor gave a rating to the body as a whole did not mean the schedule could be avoided.Ex parte Drummond Co. (Alabama Supreme Court specifically stated an impairment rating to the body as a whole does not remove an injury from the schedule). The Court of Appeals noted that the doctor testified that the restrictions issued were for the right knee only.

Since the medical testimony did not support removing the injury from the schedule the Court of Appeals next examined the lay testimony. The Court of Appeals pointed out that the trial court can find medical causation without direct expert medical testimony, so long the other evidence, lay and circumstantial, is sufficient to support that finding. The Court of Appeals stated that this is to be determined on a case-by-case basis. The Court of Appeals ruled that, in this case, the lay testimony actually established that the knee injury did not affect other parts of the employee’s body and that the knee injury had not worsened the preexisting back injury. The employee himself testified that the knee injury did not affect other body parts or worsen his back condition.

The Court of Appeals next addressed the trial court’s observations, which it used to support its decision. The Court of Appeals pointed out that case law does allow a trial court to consider its own observations when determining extent of disability, to include how the employee ambulates during trial. However, the Court of Appeals stated that nothing in the case law allows the trial court to make a finding of medical causation solely on its own observations without any other supporting evidence, much less when the finding is disputed by other evidence as it was in this case. The Court of Appeals stated "a trial court may not rest a finding on speculation or conjecture, even if arising from its observations, that contradicts the positive evidence in the record."

Finally, the employee argued the Court of Appeals should reconsider its holding that vocational evidence cannot be used to circumvent the schedule. The Court of Appeals stated that this court has applied in past case the rule, which was issued by the Supreme Court in Ex parte Drummond Co., that a trial court cannot consider vocational disability as a factor in determining the exclusivity of the schedule. Therefore, the trial court’s ruling that the employee is permanently and totally disabled cannot be supported by the employee’s inability to return to his former job as a result of the scheduled knee injury.

My Two Cents

The Court of Appeals again established that this is not a chicken or egg situation, since you must first establish that an injury is removed from the schedule before evidence of vocational loss can be considered. As a result, simply not being able to return to work is not an exception to the list of scheduled injuries.

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ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish, Nelson & Holden, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.

On April 2, 2015, Alabama Republican State Senators Del Marsh and Cam Ward submitted Senate Bill 330, which proposes drastic reforms to The Alabama Workers’ Compensation Act. If the legislature passes SB-330 and Governor Bentley signs it into law, it would be the biggest change to the Act since the 1992 Amendments. A full text of the proposed bill can be found , but the major proposed changes are outlined below.

MY TWO CENTS:

The last time we saw this many proposed changes to the Alabama Workers’ Compensation Act was on December 9, 2011, when State Senator Arthur Orr (R-Decatur) pre-filed a bill (SB77) for the 2012 legislative session. That bill never made it out of the Senate Business and Labor Committee. I would not expect this bill to make it out of committee either. There are simply too many controversial suggested revisions lumped together into one bill for there to be any chance of success. In order for such broad sweeping change to take place, it will be necessary to form a committee where all interested parties are represented and then hammer out a bill that is mutually acceptable before it is filed. That is the process that allowed the 1992 amendments to become law.

If SB-330 becomes law, § 25-5-11.1 of the Act would be amended to make it illegal for an employer to terminate an employee where the "substantial motivating factor" for the termination is that the employee instituted or maintained a workers’ compensation claim. Under the current law, the employee must prove that filing a workers’ compensation claim is the sole reason for the termination.

MY TWO CENTS:

Alabama is an employment at will state. This means you can fire someone for a good reason, a bad reason, or no reason at all. We currently have an exception to that rule in § 25-5-11.1 when the employee can prove that he or she was terminated solely for filing a workers’ compensation claim or filing a written notice of a safety rule. This means that if the employer had another valid reason for terminating the employee, then it is not considered to be a wrongful termination. If the employee can demonstrate that the other reason is a mere pretext, then it does not qualify as another valid reason and it would still be considered wrongful termination. To allow the new standard proposed above would have the effect of forcing employers to retain bad employees. It would also likely encourage more misconduct on the part of injured employees because of their new termination proof status.

§ 25-5-56 would be amended to provide a presumption that any settlement would be in the best interest of the employee, so long as the employee is represented by a licensed Alabama attorney. Additionally, any proposed settlement rejected by the Court would be reassigned to another judge and any statements or arguments made by the parties, witnesses or judge at the settlement hearing where the settlement was not approved would not be admissible in subsequent proceedings. Additionally, §25-5-56 would provide that advanced payments or payments of medical benefits of any kind shall not be considered an admission against interest or admission of liability.

MY TWO CENTS:

This is a good idea and would likely have unanimous support. The judge reassignment and confidentiality aspect of the bill was actually addressed by a committee appointed by then presiding judge of Jefferson County, Scott Vowell over 10 years ago. Both employee and employer interests agreed that it was a good idea and Judge Vowell adopted it as a local rule. The advanced payments aspect of the bill is already addressed by the Alabama Rules of Evidence. Evidence of such payments is already not admissible.

§ 25-5-57 would be substantially amended by increasing the number of weeks for permanent partial disability (PPD) benefits from 300 to 400 weeks. Additionally, permanent total disability (PTD) benefits would be cut off either after 500 weeks or after the employee attains 75 years of age – whichever is longer. §25-5-68 would be amended to completely remove the $220.00 per week statutory PPD cap, replacing it with a cap equal to 80% of the state’s average weekly wage or 100% of the employee’s pre-injury average weekly wage – whichever is less. To put that in perspective, an employee earning $1,000 per week who suffers a back injury resulting in a 50% permanent partial disability would be entitled to as much as $150,000. Under the current law, the employee would be limited to a maximum of $66,000.

MY TWO CENTS:

The $220 cap is low and probably needs to be bumped up at least to some degree. However, there needs to be a conversation between employee and employer interests on how best to effectuate such change. Simply introducing a bill proposing such drastic change does nothing more than make such change impossible during this legislative session. The proposed caps on PTD are a good start on how to negotiate such change but there needs to be more discussion.

§ 25-5-77 would be amended to provide that if an employee is dissatisfied with the initial treating physician selected by the employer and further treatment is required, the employee may select a new physician from a panel ofsix physicians selected by the employer (currently it is four). Additionally, § 25-5-77 would be amended to provide that if five years pass during which time an injured employee receives no medical treatment by his or her authorized treating physician for the injury, there would be a rebuttable presumption that any subsequent medical treatment would be unrelated to the injury. Additionally, after seven years without such treatment, there would be a conclusive presumption that the employee would not be entitled to any further medical treatment – with previously implanted medical or prosthetic devices being the sole exception. There would also be new provisions providing for pain management treatment and requirements that an injured worker receiving controlled substances sign a formal written agreement with the pain management physician. Under the proposed law, if the employee violates the agreement, her or she may lose his or her right to further pain management treatment. Another new provision would allow employers to select the pharmacy where injured workers’ get there prescriptions filled.

MY TWO CENTS:

It is hard enough to populate a panel of four in some of the more rural areas of Alabama. Requiring a panel of six could become impossible in some situations. Especially when you have an employee that gets kicked out of pain management or dismissed from the care of a treating physician for bad or inappropriate behavior. The five and seven year cut off periods sound nice but the reality is that we will see requests to return to the doctor every 4 years even when treatment is not needed. The pain management cut off aspect of the bill sounds nice except that it says may rather than shall. This means that it has absolutely no meat to it and renders the employer powerless to cut benefits when the employee is getting kicked out of pain management.

§ 25-5-88 would be amended to provide that the Courts must enter judgment within ninety (90) days of any workers’ compensation trial. Additionally, the bill would increase the maximum amount of attorney’s fees an injured worker’s attorney can charge, from 15% to 25%. It would also provide that a court can award up to 25% of the reasonable value of medical services, if the legal services provided for the injured worker are for the procurement of medical treatment previously denied.

MY TWO CENTS:

I have never understood why attorneys are limited to 15% on the award of indemnity benefits. I think that raising it is probably a good idea. However allowing a fee representing 25% of the reasonable value of denied medical services is a bad idea. If an employer exercised its right to deny a back injury claim and the judge subsequently ordered that it was compensable, the fee on the medical alone could end up being higher that the contingency fee on the indemnity award. Such an award would be more in the nature of a penalty and have the effect of scaring employers into paying for treatment that may not be owed.

§ 25-5-110 would provide compensation for psychological conditions which result from the hazards of the employment in excess of those ordinarily incident to employment in general, even if the psychological condition was not precipitated by a physical injury to the body.

MY TWO CENTS:

Alabama is a physical-mental state. This means you have to have a physical injury before you can successfully claim any type of psych condition. You do not have to have a significant physical injury but you have to have been physically injured at least to some degree. To allow employees to claim psych without the physical injury requirement would open the flood gates of psych claims.

§ 25-5-293 would be amended to require that utilization reviews be conducted by a board certified physician of the same specialty, licensed in Alabama.

MY TWO CENTS:

This would not be a terrible idea if it also included a presumption that such an opinion by a UR doctor would be considered to carry the same weight as the authorized treating physician. As it stands now, Alabama judges almost always side with the treating physician so it is unclear what this part of the bill is trying to accomplish.

Changes to § 25-5-311 would amend the composition of the Workers’ Compensation Medical Services Board. Instead of five licensed Alabama physicians, the Board would be comprised of two claims professionals chosen by the Alabama Workers’ Compensation Organization (AWCO), two employer representatives chosen by the Alabama Counsel of Association of Workers’ Compensation Self-Insureds’ Fund, two physicians and two provider practice managers chosen by the Medical Association of the State of Alabama, four hospital representatives chosen by the Alabama Hospital Association, a physical therapist chosen by the Physical Therapist Association of Alabama, two "employee representatives", chosen by the Alabama Association for Justice (the trial lawyers), and one judge chosen by the Alabama State Bar. Medical providers, other than hospitals, would be reimbursed at a rate equal to an amount 7.5 % greater than the rate customarily paid by the largest health care service plan in the state. Hospitals would be entitled to a maximum reimbursement rate of 1.2 times the Medicare National Base Rate multiplied by the Diagnosis-Related Group Weight Value as published by Medicare. Brand name drugs would be reimbursed at a rate equal to the average wholesale price, plus $5.00. Generic drugs would be reimbursed at 30% less than the wholesale price, plus $5.00. Additionally, injured workers not be allowed to have the medication prescriptions filled in any facility or business establishment in which the prescribing physician has a financial interest.

MY TWO CENTS:

This probably gives us a good road map on how to form a committee that can actually effectuate change that is mutually acceptable to all. Without all interested parties at the table negotiating a true compromise, nothing is likely to ever be accomplished. For an example of how it was done in 1992, I suggest that you read the first four paragraphs of Tuscaloosa attorney Steve Ford’s articleNew Alabama Workers’ Compensation Act published in The Alabama Lawyer in September of 1992. If you would like a copy, please shoot me an e-mail and I would be more than happy to send you one.

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ABOUT THE AUTHORS

The summary of SB-330 was written by Charley Drummond and the My Two Cents portion was written by Mike Fish. Both are attorneys at Fish Nelson & Holden, LLC, a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. The firm is a member of The National Workers’ Compensation Defense Network (NWCDN), which is a national network of reputable law firms organized to provide employers and insurers access to quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the authors atmfish@fishnelson.com, cdrummond@fishnelson.com, or (205) 332-3430.

On March 20, 2015, the Alabama Court of Civil Appeals released its opinion in Good Hope Contracting Company, Inc. v. McCall wherein it upheld an order compelling medical treatment but reversed an award of attorney’s fees. At the trial court level, evidence was presented that the authorized pain management doctor recommended a steroid injection. The request was sent to utilization review (UR) and it was determined not to be medically necessary by an orthopedic surgeon with a subspecialty in pain management. Based on the UR doctor’s opinion, the procedure was denied. The employee then filed a motion to compel the procedure and a motion for contempt alleging that proper UR protocol was not followed. Specifically, it was alleged that the orthopedic surgeon was not a peer of the authorized pain management doctor because managing pain was not is specialty. The trial court granted the motion to compel the injection but declined to grant to the motion for contempt. Despite this fact, the Court still awarded $18,375.00 in attorney’s fees.

On appeal, the Alabama Court of Civil Appeals upheld everything but the award of attorney’s fees. In order for such fees to be awards, the employee would have needed to be successful on his motion for contempt.

My Two Cents:

In the Unites States, attorney’s fees are not typically awarded to the prevailing party absence absent a contractual obligation or unless the prevailing party can demonstrate willful and contumacious behavior on the part of the opposing party. This is known as the American Rule. In this case, the Court of Civil Appeals determined that, because proper UR procedures were followed, the employer had a legitimate, debatable and arguable basis for its denial and, therefore, could not be held in contempt of court. Had the Court of Civil Appeals allowed the award of attorney’s fees to stand in this case, it would have resulted in similar motions being filed every time employers exercised their lawful right to deny medically unnecessary treatment in a permissible manner.

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About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish, Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers' compensation. Fish Nelson & Holden is a member of the National Workers' Compensation Defense Network. If you have any questions about this submission or Alabama workers' compensation in general, please contact Fish by e-mailing him atmfish@fishnelson.com or by calling him directly at 205-332-1448.

On February 27, 2015, the Alabama Court of Appeals released its decision in Ex parte Fairhope Health & Rehab, LLC. The facts of the case were as follows: The plaintiff, Lula Durgin worked as a nursing home activities director for Fairhope Health & Rehab. One day, while preparing to take a group of nursing home residents to the local Wal-Mart, she climbed into the driver’s seat of her employer’s van. Durgin alleged that in February 2012, she felt pain in her right knee as she went to sit down in the seat of the van. Durgin was sent to a local orthopaedist, who diagnosed her with a torn meniscus and pre-existing arthritis. The orthopaedist performed surgery to repair the torn meniscus, and released Durgin to return to work without restrictions. Durgin returned to work, but several months after surgery she continued to have pain in her right knee. Durgin’s orthopedist related the continued pain to pre-existing arthritis. Durgin also contended that her knee caused her to fall several times, and on one occasion, she had sustained a back injury due to a fall at home. Another physician determined that Durgin needed to undergo a right knee total replacement surgery. Durgin contended that Fairhope Health & Rehab was responsible for the total knee replacement surgery, and that her alleged back injury was also compensable as the direct and natural result of her on-the-job-knee injury. Fairhope Health & Rehab asserted that Durgin’s alleged injuries did not occur in or arise out of her employment, and that Durgin’s need for a right knee replacement was not related to the alleged accident. Fairhope Health & Rehab also denied that Durgin had any compensable back injury and further asserted that her alleged back problems were the result of a prior accident that had occurred several years before she was hired.

Durgin filed suit, and the parties took the deposition of the orthopedist who had performed the meniscus repair. During his deposition, Durgin’s orthopedist reviewed medical records and MRIs taken of both Durgin’s knees in 2007, five years prior to the February 2012 incident. Those MRIs showed that the menisci in both of Durgin’s knees were shredded and severely torn. At that time, her doctor had recommended that she undergo knee replacement procedures of both knees. While Durgin elected to undergo a total knee replacement in her left knee, she had never had surgery to repair the torn meniscus or to replace the right knee joint. Despite this, she had been able to perform all of the regular duties of her job at Fairhope Health & Rehab prior to her alleged accident. Durgin’s orthopedist stated that while the alleged incident in February 2012 may have exacerbated her already torn meniscus, the surgery he had performed restored her knee to a condition that was even better than it had been prior to the February 2012 incident. The orthopedist also testified that while Durgin continued to complain of pain in her knee, it was solely the result of the pre-existing arthritis in her "terrible looking knee", and not the February 2012 incident. Following the orthopedist’s deposition, the case went to trial on three issues: (1) whether Durgin’s alleged meniscus tear occurred in and arose out of her employment; (2) whether Durgin’s need for a knee replacement surgery was related to the February 2012 incident; and (3) whether Durgin’s alleged back injury was compensable.

Durgin testified on her own behalf at trial, and also called one of her co-workers as a witness to testify that she had been able to perform her regular job duties prior to the February 2012 incident. The deposition and medical records of Durgin’s treating physician were entered into evidence, as were medical records from the doctor who had performed the left knee replacement surgery in 2008. Despite the fact that no other evidence was presented at trial, the trial court found that the February 2012 incident exacerbated or aggravated Durgin’s pre-existing meniscus tear, and that Fairhope Health & Rehab was responsible for Durgin’s right knee replacement procedure. The trial court found that Durgin’s alleged back injury was not compensable. Fairhope Health & Rehab appealed the findings that the torn meniscus and need for the knee replacement were related to Durgin’s February 2012 incident.

The Alabama Court of Appeals held that since the trial court did not determine the specific amount of temporary total or permanent partial disability benefits to which Durgin was entitled, it was not a final appealable Order. However, the Court of Appeals evaluated the employer’s appeal as a Petition for Writ of Mandamus instead. The Court of Appeals held that the Trial Court’s finding that Durgin sustained an accident occurring in and arising out of her employment that aggravated her already torn meniscus was supported by substantial evidence. However, since the only evidence presented on the issue of medical causation (the treating physician’s deposition testimony and medical records) established that Durgin’s need for a knee replacement was not related to her alleged accident, the Court of Appeals held that Durgin had failed to meet her burden of proof. As a result, it issued a Writ of Mandamus to the Trial Court, directing it to set aside the portion of the Order requiring Fairhope Health & Rehab to pay for the prescribed right knee replacement surgery.

Two Judges dissented, stating that the Trial Court’s Order was final for purposes of Appeal, since all of the issues submitted to the trial court had been decided. Despite their dissent on the procedural aspects of the case, those two judges concurred with the end result.

MY TWO CENTS:

If allowed to stand, the trial court’s ruling would have required the employer to provide medical treatment that, according to Durgin’s treating physicians, was unrelated to the alleged accident. In his dissent, Judge Moore stated, "the trial court could have reached its conclusion only by impermissibly deciding matters lying exclusively within the peculiar knowledge of medical experts." This was the same position taken by Fairhope Health & Rehab. While Alabama law has long held that expert medical testimony is not necessary to establish medical causation in a workers’ compensation case, there was expert medical testimony in this case, and it firmly supported Fairhope Health & Rehab’s position.

Also important to note is that the Court of Appeals cited the case of Alamo v. PCH Hotels & Resorts, in finding that Fairhope Health & Rehab was not responsible for Durgin’s knee replacement surgery because the alleged accident only temporarily aggravated her underlying arthritis. In doing so, I believe the Court of Appeals differentiated this situation from the one presented inMadison Academy v. Hanvey, reiterating that the employer is not liable for any continuing symptoms that result solely from a pre-existing condition.

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ABOUT THE AUTHOR:

This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.

On February 27, 2015, the Alabama Court of Civil Appeals released its opinion inDana Louise Pollock v. Girl Scouts of Southern Alabama, Inc. wherein it considered a claimed injury arising out of a horse riding accident. At the trial court level, the judge was presented with evidence that the injured employee, the business manager of a 6 week summer camp, voluntarily participated in a horseback ride at the end of the camp. The ride was for staff members only and participation was not required or encouraged. In fact, when the employee asked her supervisor for permission to participate, she was actually discouraged because of the existence of prior back injuries. During the ride, the horse bolted unexpectedly causing injury to the employee’s back. The employee contended that the injury was work related because it happened during work hours, during an event that occurs every year at the end of the summer session, it was on her employer’s property, and she had her supervisor’s permission. The employer file a motion for summary judgment asserting that the accident did not arise out of or in the course of her employment. The trial court granted the motion and the employee appealed.

The Court of Civil Appeals agreed with the trial court noting that the horseback ride was voluntary and the employer did not derive any benefit from the activity.

My Two Cents:

Whether or not an employer derives a benefit from a particular activity is an important, and sometimes overlooked, consideration when looking at the "arising out of" portion of the two part causation test. Just because you are at work when an accident occurs does not mean that the accident is work related. Simply being at work might satisfy the "in the course of" portion of the test but not both parts. In this case, it was determined that there was not substantial evidence that either part of the two part test could be proven.

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About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish, Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers' compensation. Fish Nelson & Holden is a member of the National Workers' Compensation Defense Network. If you have any questions about this submission or Alabama workers' compensation in general, please contact Fish by e-mailing him atmfish@fishnelson.com or by calling him directly at 205-332-1448.

On January 30, 2015, the Supreme Court of Alabama reversed the Alabama Court of Appeals’ ruling inMadison Academy, Inc. v. Hanvey. The Supreme Court granted the employee’s Petition for Writ of Certiorari to review whether the Court of Civil Appeals erred in reversing the trial court’s judgment awarding the employe permanent and total disability benefits.

The trial court had found that in the absence of the exposure to chemical fumes at work, the employee would not have suffered the disability at the time, in the manner, or to degree that she did. The trial court had also found that the employee’s pre-existing myasthenia gravis was worsened by her exposure to chemicals at work, and that as a result of that exposure, she was permanently and totally disabled. The Supreme Court noted that a trial court’s findings of fact must be affirmed on appeal if they are supported by substantial evidence. The Supreme Court also noted that the appellate courts will not overturn the trial court’s findings in regard to the extent of disability if those findings are supported by substantial evidence. The Supreme Court held that the trial court’s findings were supported, and therefore could not be overturned.

MY TWO CENTS

Although the Supreme Court’s ruling reversed the Court of Appeals and upheld the trial court’s findings, it did not explicitly overrule the Court of Appeals’ rejection of the notion that "no pre-existing condition is deemed to exist if the employee was able to perform the work of an uninjured person at the time of the injury." Instead, the Supreme Court held that the Court of Appeals cannot re-weigh the evidence, and that the factual findings of the trial court must be upheld on appeal if there is substantial evidence to support those findings, even when there is also substantial evidence that support contrary findings.

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ABOUT THE AUTHOR

This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.