State News : Alabama

Ex parte Southern Erectors, Inc.

Petition for Writ of Mandamus

On February 21, 2014, the Alabama Court of Civil Appeals granted Southern Erectors, Inc.’s (SEI) Petition for Writ of Mandamus. The trial court had denied SEI’s summary judgment motion that was based on the Alabama court not have subject matter jurisdiction over the on the job injury that occurred in Kansas. The Alabama Court Civil of Appeals agreed with SEI and remanded the case with an order to dismiss the workers’ compensation case based on lack of subject matter jurisdiction.

The employee lived in Alabama and learned of a job opening in 2010 with SEI in Wyoming. He left Alabama and traveled to Wyoming for the job. The plaintiff worked on several different job sites in various states over the year for SEI. In February of 2011, the employee, while in Alabama, learned of another job with SEI in Kansas. Once he was told the date he should arrive he left and, upon arrival, completed a new application, Kansas Employee’s Withholding Certificate and stayed in a Kansas Hotel while performing the job. On March 14, 2011 the employee was injured while performing his job in Kansas. He was provided benefits under Kansas Workers’ Compensation and even completed a Kansas Workers’ Compensation form.

On March 13, 2013, the employee file suit for workers’ compensation benefits under the Alabama Act. In agreeing with SEI and ordering that the workers’ compensation claim be dismissed, the Alabama Court of Civil Appeals stated that the trial court did not have subject matter jurisdiction over the claim. The Court of Civil Appeals pointed out that in order for an out of state injury to be compensable under the Alabama Workers’ Compensation Act the requirements of §25-5-35(d) must be met. Subsection (2) and (3) of this section applicable to this case state that benefits are owed for an injury that occurs out side of this state if benefits would have been owed had the injury occurred in Alabama, provided that at the time of injury (2) he was working under contract for hire made in this state in employment not principally localized in any state, and (3) he was working under a contract of hire made in this state in employment principally localized in another state whose workers’ compensation law was not applicable to his employer. The Court of Civil Appeals found that the employee impliedly accepted the job offer by traveling to Kansas.See Ex parte Robinson, 598 So. 2d 901, 904 (Ala. 1991). Therefore, the employee was under a contract for hired entered into in Alabama. However, the Court of Civil Appeals stated that this conclusion does not automatically mean that the Alabama Workers’ Compensation Act applies. See Ex parte Fluor Corp., 960 So. 2d 701 (Ala. Civ. App. 2006). §25-5-35(d)(2)&(3) requires that the court also consider the principal location of the employment as defined in §25-5-35(b). The Supreme Court stated inEx parte Flour Corp. that principally localized pursuant to §25-5-35(b) merely means the employee worked for the employer at a designated place within a state.

The Court of Civil Appeals considered the following factors to determine the principal location of employment in the present case: (1) the application was completed in Kansas, (2) work was being performed in Kansas at the time of injury, (3) he was living in a Kansas hotel at the time of the accident, (4) he completed Kansas tax withholding forms and (5) SEI was operating out of Kansas for that job creating a place of business there. For these reasons, the Court of Civil Appeals found that the employee’s employment was principally localized in Kansas. Therefore, §25-5-35(d)(2) would not apply because SEI was principally localized in Kansas and §25-5-35(d)(3) would not apply because there was no evidence that Kansas workers’ compensation laws were not applicable to SEI.

The Court of Civil Appeals rejected the employee’s argument that the employer had to have a permanent and continuous presence in the state to establish a principal location in the state (the employee had cited an Alabama Federal case that used this language but that case applied to venue and not §25-5-35(d)).

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ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish Nelson, 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. He has been selected as a "Rising Star" by Super Lawyers. He is the past Chair of the ABA/ TIPS Workers’ Compensation and Employers’ Liability Committee. Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atjholden@fishnelson.com or 205-332-1428.

The Annual Midwinter Conference will be held this year in Chicago from March 13 until March 15 at the Conrad Chicago Hotel. It is a jointly sponsored by the ABA Tort Trial & Insurance Practice Section and the Section of Labor an Employment Law.

The Seminar begins on Thursday afternoon to allow for morning travel and will finish up at mid-day on Saturday with a presentation on mediation and negotiation techniques presented by the National Association of Workers’ Compensation Judges and the College of Workers’ Compensation Lawyers.

New this year will be several sessions specifically designed for the Medical community such as back-to-back sessions on Thursday,The Litigators Guide to Understanding Medicine and Evaluating & Treating Back Painand Healthcare Reform’s Impact Nationally and on Workers Compensation, and a presentation on Friday,CMS Regulations and Medicare Legislation.

This not to be missed program is open to all. The stellar speakers will discuss rainmaking, social media and ethical considerations, MSAs, healthcare reform’s impact on workers’ compensation, insurance premium fraud, opioid use and abuse, best practices, negotiation and mediation techniques, and diagnostic medicine.

Following this blockbuster program, the College of Workers’ Compensation Lawyers

will hold their annual dinner on Saturday evening. This is an invitation only event and

tickets are required.

For more information, please feel free to contact Mike Fish or Josh Holden. Both are former ABA TIPS Committee Chairs and would be happy to assist you. Contact information below.

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Mike Fish and Josh Holden are both members of Fish Nelson 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 post, please feel free to contact Mike atmfish@fishnelson.com or 205-332-1448 or Josh atjholden@fishnelson.com or 205-332-1428.

On January 24, 2014, the Supreme Court of Alabama affirmed the Circuit Court of Shelby County Alabama’s decision, without opinion, in the case ofVinson v. G & R Mineral Services, Inc. However, Chief Justice Roy Moore pinned an interesting dissent. The employee, David Vinson, Jr., sought employment with G & R, a contractor that provided services to Chemical Line Company of Alabama in Calera. G & R then directed Vinson to a temporary employment agency, Diversified Sourcing Solutions (DSS), to apply for the job. Vinson was then hired by DSS to work for G & R at the Chemical Lime baghouse, where his job involved changing out lime filters. On his second day of employment, Vinson allegedly inhaled lime dust, had to be hospitalized, and never returned to work. Vinson sought workers’ compensation benefits from DSS. However DSS’s workers’ compensation carrier later became insolvent, so the Alabama Insurance Guarantee Association (AIGA) assumed responsibility for paying for Vinson’s care. AIGA eventually discontinued the payment of benefits, and Vinson then filed a lawsuit against G & R seeking workers’ compensation benefits. However, G & R’s workers’ compensation carrier convinced Vinson to dismiss the action on the grounds that DSS, and not G & R, was Vinson’s employer.

Vinson then filed an action for negligence against G & R. G & R moved for summary judgment, asserting that it was a "special employer" of Vinson, and was therefore immune from tort liability. Vinson moved to strike G & R’s special employer defense. The trial court found that DSS was merely a temporary employment agency and that Vinson had an implied contract of special employment with G & R. Based on these findings, the trial Court entered summary judgment in favor of G & R. On appeal, Vinson argued that G & R’s insistence in the workers’ compensation case that it was not his employer, created a genuine issue of fact as to whether it should be considered Vinson’s employer in the negligence case. In support of that position, Vinson produced a letter to the Mine Safety and Health Administration (MSHA) from G & R’s safety officer stating that Vinson was an employee of DSS and not G & R, and that DSS was paying Vinson’s workers’ compensation benefits. Despite this evidence, the Supreme Court upheld the trial Court’s ruling.

In his dissent, Judge Moore stated that G & R’s opportunistic switch from non-employer to employer was sufficient to raise a factual question as to whether G & R was a special employer immune from tort liability under the exclusivity provisions of the Act. Judge Moore stated that since that question was not one purely of law, but of fact, reasonable persons might draw different conclusions as to whether G & R was a special employer. Based on that, Judge Moore stated that the issue of whether G&R was a special employer should have been one decided by the jury.

MY TWO CENTS

Although Judge Moore was the only judge that dissented, I believe that the principals of judicial estoppel support his opinion. A party is generally precluded from taking a position in a case which is contrary to a position they have taken in earlier legal proceedings. Employers need to be aware that if they deny that they are the employer, they may be estopped from seeking protection under the exclusivity provisions of The Alabama Workers’ Compensation Act in the event a tort claim is later brought by the employee. Therefore, it is critical that employers and their attorneys consider the pros and cons of pleading tort immunity at the outset of any case.

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ABOUT THE AUTHOR

This article was written by Charley M. Drummond, Esq. of Fish Nelson, LLC. Fish Nelson 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.

Now that I have your attention, let me elaborate. An Australian federal employee was on a business trip when she met up with a man and had sex with him in her hotel room. While engaged in the act of intercourse, a light fixture above the bed fell onto her face causing injury to her nose and mouth. In addition to her claim for physical injuries, the claimant alleged depression.

The administrative tribunal denied benefits because it determined that sex is not an ordinary incident of an overnight stay such as showering, sleeping, or eating.

A Federal Court Judge overturned the decision analogizing the sex act to playing a game of cards. In his opinion, if she had been injured while playing cards in her room it would be compensable and, therefore, she should also be compensated for her sex injuries. There was no comment on how a light fixture might come loose while playing cards but, then again, there was also no comment on how the light fixture came loose during the sex act.

Fortunately for the employer, the High Court agreed with the rational of the administrative tribunal and ruled that benefits were not owed. The Australian Employment Minister hailed the ruling as a victory for common sense.

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About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson 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 atmfish@fishnelson.com or any firm member at 205-332-3430.

On September 27, 2013, the Alabama Supreme Court released its opinion in Ex parte Schnitzer Steel Industries, Inc. wherein it addressed the discoverability of post-accident investigation reports.　　 The subject report was prepared following a workplace accident resulting in an amputation.　The trial court initially ruled that the report was privileged and not discoverable.　The judge later reversed that ruling and ordered that the report be produced.　The employer then petitioned the Alabama Supreme Court for a writ of mandamus directing the judge to vacate the order.

On appeal, the employer argued that the report was prepared in anticipation of litigation and, thus, protected as work product.　 On the flip side, the employee argued that the employer conducted post-accident investigations and prepared reports containing the findings of the investigation for all accidents regardless of whether or not there was any anticipation of litigation.

In this case, the employer’s workers’ compensation manager testified that there was no written policy that a post-accident investigation be undertaken and that such a report　is only prepared when litigation is anticipated.　The employer’s safety director, however, testified that the report was prepared in the normal course of business and to address safety concerns and not in anticipation of litigation.　The Court resolved the inconsistencies between the two deponents by pointing out that, while it is necessary for the report to be prepared in anticipation in order to be afforded the protection of the work product doctrine, it does not have to be the sole reason.　　 Since it was reasonable under the circumstances for the employer to assume that litigation could be expected, the Court granted the petition　 and issued the writ directing the trial court to vacate its order granting the motion to compel the discovery of the report.

My Two Cents:

This opinion makes it very clear that employers must reasonably expect future litigation when preparing investigative reports in order to enjoy the protections of the work product doctrine.　 A standard post-accident investigation report may end up being discoverable unless it can be shown that there was some perceived threat of a lawsuit at the time the report was created.　 For this reason, it is advisable to do something different than your standard operating procedure when you do expect litigation such as involve an attorney in the investigation phase of a claim.

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About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson 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 atmfish@fishnelson.com　or any firm member at 205-332-3430.

On September 20, 2013, the Alabama Court of Civil Appeals released its opinion in the case of Malone v. Steelcase, Inc., dealing with the applicability of § 25-5-57(c)(3) of The Alabama Workers’ Compensation Act. § 25-5-57(c)(3), known as the set-off statute, provides that an employer is allowed a set-off against compensation benefits owed to an injured employee when the employer continues the salary of the employee during the period in which benefits are owed. Malone suffered an injury to her lower back occurring in and arising out of her employment with Steelcase, but she was able to return to her job earning wages equal to those she was earning prior to the injury. The trial court awarded permanent partial disability benefits for a 25% disability to Malone’s body as a whole, in the amount of $81.54 per week. However, the trial court also awarded Steelcase an offset in the amount of $67.30 per week for wages Steelcase paid to Malone after she was placed at maximum medical improvement, pursuant to § 25-5-57(c)(3). Malone appealed, and the Court of Appeals reversed the trial court’s decision.

Malone argued that § 25-5-57(a)(3)i, which is often referred to as the "return to work statute" was controlling, and that under that statute, her compensation for her injury was to be based on her physical disability rating, without consideration for loss of earnings capacity. Malone argued that under that statute, Steelcase was not entitled to a set-off, because § 25-5-57(c)(3) did not apply to her situation. In reaching its decision, the Court of Appeals stated that it agreed with Malone, because when two statutes conflict, the "more specific" statute is controlling, and § 25-5-57(a)(3)i is the more specific statute. The Court further stated that § 25-5-57(a)(3)i would be rendered meaningless under the interpretation of the set-off statute advocated by Steelcase. The Court of Appeals noted that benefits awarded in cases where the return to work statute applies, like scheduled benefits, should be awarded regardless of whether an employee is receiving full wages.

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MY TWO CENTS:

The Court of Appeals’ analysis begs the question: So exactly when does the set-off statute apply? The Court of Appeals’ ruling is interesting in that it found that § 25-5-57(a)(3)i would be rendered meaningless if the employer was allowed an offset against an award for wages paid in situations where the employee is earning wages equal to her pre-injury wage. The decision further implies that the set-off statute does not apply in scheduled member injury cases either, for the same reason. The only other statute that applies to permanent partial disability awards is § 25-5-57(a)(3)g, which provides that an employee’s compensation for injury is equal to 66 2/3% of the difference between her average weekly earnings at the time of the injury and the average weekly earnings she is able to earn in her partially disabled condition. It certainly seems that if the legislature intended that the set-off statute only apply to awards made under § 25-5-57(a)(3)g that the statute would clearly and unambiguously state as much. However, the answer is contained in the statutory language concerning the employer continuing the salary of the employee. It appears that the Court of Appeals’ interpreted it to mean when the employer continues thefull salary of the employee. In other words, when the employer is paying the employee herfull wages for either performing less work, or for performing a less demanding job, the employer is entitled to a set-off, but when the employee is performing her regular job for her regular wages, the employer is not entitled to a set-off.

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ABOUT THE AUTHOR

This article was written by Charley M. Drummond, Esq. of Fish Nelson, LLC. Fish Nelson 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 September 9, 2013, the Alabama Court of Civil Appeals released its opinion inSouthernCare, Inc v. Margaret Cowart wherein it reaffirmed that a mere possibility does not establish medical causation. Although it affirmed the trial court’s finding of medical causation, it reversed the permanent and total disability award and remanded it for the trial court to determine the level of disability.

The facts before the Court involved a preexisting back injury and then 4 separate accidents injuring the lower back over a 3 year period with SouthernCare, Inc. Prior to a 2004 fall on the job, Cowart had a preexisting back injury but she had been working without restriction. After the 2004 fall and injury, Cowart had periods of disability but returned to full duty. She then had 2 incidents in 2005 and 2 in 2007 where she felt pain in the same region and of the same nature as she did after the 2004 fall. After the 2007 injury was determined not to be work related by the employer, Cowart returned to work but testified that she worked in constant pain. Cowart suffered another accident on the job injuring the same area of the back but testified that the pain was even more excruciating this time.

Cowart was seen by several different doctors and all the medical records indicated that the tests were unremarkable and that Cowart’s symptoms were degenerative or related to fibromamyalgia and not work related. After the June 2007 injury Cowart was treat by Dr. James White. Dr. White opined that without further testing he could not say if stenosis was causing the symptoms or if there was a herniated disk below the stenosis. Dr. White also testified that without further testing he could not say if the injury was work related. He did testify that the back pain could be due to fibromyalgia but the fact that Cowart did not have radiating pain prior to the first fall in 2004 indicated that fibromyalgia was not causing the current symptoms.

The trial court considered the medical records, Dr. White’s testimony and heard the plaintiff’s testimony in a compensability hearing and found the injury compensable and ordered the tests requested by Dr. White. The trial court later held a disability hearing with the only testimony being the employer’s vocational expert, which resulted in a permanent and total disability award. The employer then appealed the compensability decision and the permanent and total disability award.

The Court of Civil Appeals reviewed the testimony but did not re-weigh the evidence as it related to the decision on medical causation and permanent and total disability. The Court noted that the applicable standard for medical causation set forth by the Alabama Supreme Court was the evidence must establish more than a mere possibility that the injury was caused by the work place accident.Ex parte Southern Energy Homes, 873 So. 2d 1116, 1121-22 (Ala. 2003). The court also stated the "expert medical testimony is not always required to establish medical causation; however, an employee’s testimony, while not always insufficient alone to establish medical causation, cannot establish medical causation when ‘the evidence as a whole weighs heavily against finding the [employee’s] testimony alone to be substantial evidence of medical causation.’"Id at 1122. In the instant case the Court of Appeals noted that the only record that specifically said the injury was not related was from a doctor that reviewed the wrong MRI after the first 2007 incident. In addition, Cowart’s doctors stated that her symptoms were related to degenerative problem and/or fibromylgia. The Court then turned to the only detailed opinion on the subject of medical causation, Dr. White’s deposition testimony. This testimony stated that without further testing he could not say if the symptoms were related to the falls at work or not but that it was not until after the fall that Cowart reported radiating pain. The Court of Appeals then turned to Cowart’s testimony to determine if, when viewed with all the evidence, it could provide substantial evidence as to medical causation. Cowart’s testimony was that prior to the 2004 fall her fibromylgia had seldom caused her to miss work. She also testified that after the first fall she had returned to work at full duty with several subsequent incidents causing severe pain in the same region of her back. Cowart further testified that after the first incident in 2007 she returned to work but was in constant pain. The Court of Appeals pointed out that the trial court may infer medical causation from circumstantial evidence that indicates the employee was working normally before the incident, but afterwards the symptoms appeared and continued. Based on this, the Court of Appeals found that substantial evidence was present for the trial court to find medical causation.

The Court of Appeals did find that there was not sufficient evidence to support the permanent and total disability award. They pointed to Cowart’s testimony that she had been able to perform her duties despite her pain, her testimony that she desired to return to work and the employers vocational expert stating she had transferable skills and no loss of earnings capacity. Based on this, the Court of Appeals found there was not sufficient evidence to support a permanent and total disability award and the trial court should review the evidence again to determine the level of disability.

Of Note:

It has long been the position of the Alabama Appellate Courts that they are not to re-weigh the evidence in a workers’ compensation appeal. However, Judge Moore, in his concurring opinion, stated that when the legislature eliminated the certiorari review of workers’ compensation case in 1992 and created the substantial evidence standard, the standard of review for an appeal also changed. Judge Moore stated that the prior standard of review applicable to certiorari review only required support by any evidence, not substantial evidence. Therefore, by changing to the substantial evidence standard the legislature intended to change the standard of review and allow the Court of Appeals to re-weigh the evidence. Judge Moore also asserted that, under the current ruling by the Alabama Supreme Court, the Court of Appeals cannot re-weigh the evidence and must leave the trial court’s ruling alone if there is any evidence that supports the trial court’s ruling, which is the same as the certiorari review pre 1992 amendment. With the legislature creating the substantial evidence standard, Judge Moore opined that the Court of Appeals should be allowed to re-weigh the evidence to establish if there is substantial evidence and not just any evidence to support the decision.

ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish Nelson, 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. He is the current Chair of the ABA/ TIPS Workers’ Compensation and Employers’ Liability Committee. He is also on the Board of the Alabama Workers Compensation Organization and a member of numerous other associations and organizations. Holden has been selected as a "Rising Star" by Super Lawyers.

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.

If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atjholden@fishnelson.com or 205-332-1428.

On August 16, 2013, The Alabama Court of Civil Appeals released its opinion in the matter ofDuBose Construction Company, LLC v. James Simmon. This was the third time this case had come before the Court. The subject injury was to the employee’s right knee which occurred as the result of a fall at work. At trial, the judge found the matter compensable and assessed a 15 percent permanent partial loss of the employee’s ability to earn. The employer appealed on the grounds that the judge should not have considered evidence of vocational loss or assessed a whole body impairment where the injury was to a scheduled member. The Court of Civil Appeals agreed and reversed the judgment. Four months later, the trial court dismissed the case in its entirety. After a failed attempt at mediation, the employee filed a petition for writ of mandamus asking the Court to order the trial court to vacate its dismissal. The Court granted the petition. The employer then filed a petition for a writ of mandamus to the Alabama Supreme Court in an effort to have the Court of Civil Appeals’ mandamus order vacated. That petition was denied.

The evidence at trial revealed that the employee had a torn medial meniscus in his right knee. While performing an arthroscopy, the treating physician discovered that the employee also had chondromalacia which was described as a wear and tear, arthritic issue. Upon reaching maximum medical improvement, the employee was released to return to work at full duty with zero restrictions and no medical impairment. In his trial deposition, the treating physician testified that any complaints of pain would be due to the arthritic issue.

At trial, the employee testified that his knee injury caused him to walk with a limp and that his back was off balance. On remand, the trial judge relied on this testimony to remove the knee injury from the schedule and consider evidence of vocational disability. The employer then appealed on the grounds that the employee’s testimony failed to prove that his knee injury had any effect on other parts of his body.

The Court of Civil Appeals agreed with the employer. In reversing and remanding the matter, the Court relied on theDrummond test. In Ex parte Drummond, the Court adopted the following test: If the effects of the loss of the member extend to other parts of the body and interfere with their efficiency, the schedule allowance for the lost member is not exclusive. In applying this test, the Court noted that the employee never actually testified that he was having lower back problems. The evidence further revealed that the employee never received any medical treatment for any other body parts. In fact, his treating physician testified that the employee never complained about any body part other than his knee.

In reversing and remanding the matter, the Court instructed the trial court to determine what, if any, disability the employee had to his right leg.

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About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson 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 atmfish@fishnelson.com or any firm member at 205-332-3430.

On August 9, 2013, the Alabama Court of Civil Appeals released its decision inDevero v. North American Bus Industries, in which it upheld summary judgment in favor of North American Bus Industries (NABI) for various tort claims Devero alleged arose out of his employment with NABI.

In February of 2005, Devero and seven other employees of NABI filed a lawsuit in the Circuit Court of Calhoun County, Alabama against NABI and two other defendants, PPG Industries and E.I. DuPont de Nemours, asserting claims of fraud, negligence, wantonness, failure to warn, civil conspiracy, and infliction of emotional distress stemming from alleged exposure to hazardous chemicals in the workplace at NABI. In January of 2006, the trial court entered an Order stating that all of the plaintiff’s claims against NABI were governed by the exclusivity provisions of the Alabama Workers’ Compensation Act. The trial court ordered Devero to restructure his Complaint to state claims under the Act. Devero then filed a new Complaint for workers’ compensation benefits, asserting that he had been exposed to toxic chemicals, deadly solvents, and spray paint particles that had damaged his internal organs and caused him to develop peneumoconiosis. NABI filed an Answer denying all of Devero’s allegations and then moved for summary judgment, asserting that there was no evidence that Devero had been exposed to any toxic substances at work, and that there was no evidence to indicate that Devero suffered from any illness or occupational disease related to his employment. In support of its Motion for Summary Judgment, NABI submitted Devero’s deposition testimony, the medical records of Devero’s personal physician, and hospital records pertaining to Devero’s treatment for his alleged peneumoconiosis.

After consideration of all the evidence, the trial Court granted NABI’s Motion for Summary Judgment, finding that Devero had not presented any evidence of legal or medical causation for his alleged injuries and/or occupational disease. However, the trial Court’s Order did not contain specific findings of fact and conclusions of law addressing whether Devero was suffering from an injury or disease that occurred in and arose out of his employment with NABI.

Devero appealed. On appeal, the Court of Civil Appeals held that an Order granting a Motion for Summary Judgment in a workers’ compensation case need not contain findings of fact and conclusions of law, thus overturning a prior case ofFarris v. St. Vincent’s Hospital, 624 So. 2d 183 (Ala. Civ. App. 1993). Devero also continued that the trial Court erred in failing to allow him to proceed with his tort claims, which he alleged were outside the scope of the Alabama Workers’ Compensation Act. However, the Court of Appeals held that although Devero’s claims against NABI involved allegations of intentional or reckless conduct, those claims dealt with workplace conditions "within the bounds of an employer’s proper role", and therefore, those claims were precluded by the exclusivity provisions of the Alabama Workers’ Compensation Act.

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ABOUT THE AUTHOR

The article was written by Charley M. Drummond, Esq. of Fish Nelson, LLC. Fish Nelson 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 atcdrummond@fishnelson.com or (205) 332-3414.

The EEOC filed lawsuits this past May, claiming that employers had violated the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act (ADA) when they required applicants to submit to post-job-offer medical exams. Though GINA and ADA do not bear directly on workers’ compensation issues, they do affect post-job-offer medical examinations which are often important aspects of workers’ compensation claims.

In EEOC v. Fabricut, Inc. and EEOC v. Founders Pavilion, Inc., the employers allegedly required applicants to undergo medical examinations, which included questions about family medical histories. In both cases, the employers may have withdrawn job offers based on the applicants’ answers to these questions. In doing so, the EEOC claimed the employers violated GINA, which prohibits an employer from requesting, requiring or purchasing genetic information from applicants, including family medical histories.

Notably, the ADA and GINA do not prevent employers from requiring applicants to undergo any medical examinations, but they do limit the scope of such exams. Employers may require a medical examination that is designed to detect disabilities that would directly affect an applicant’s ability to perform the physical duties of a job. Based on the results of this type of limited medical exam, the applicant may be found physically incapable of safely performing the duties of the job, and unless a reasonable accommodation can be made, the employer may withdraw a job offer.

Practice Pointer:

Employers and their counselors should review post-offer medical examinations, if any, and make sure the exam is limited to gathering information that is relevant to the physical requirements of the job. If the post-offer exam asks about family medical history or conditions that would not affect an applicant’s ability to perform the job, then the exam may result in violations of the ADA and GINA. If testing is done by a private doctor or clinic, then employers should verify that prohibited information is not being requested on their behalf.

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About the Author

This blog post was written by Trey Cotney, Esq. of Fish Nelson 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.