State News : Alabama

The Alabama Court of Civil Appeals recently affirmed a trial court’s determination of disability which was based on the employee’s subjective complaints of pain and her appearance of physical disability during trial. InStericycle, Inc. v. Sonja Patterson, the trial court assigned a 57% permanent partial disability rating for a back injury sustained while loading a truck. On appeal, Stericycle contended that the trial court’s medical-causation and disability determinations were not supported by substantial evidence.

The Court of Appeals first addressed the issue of medical causation, holding that the parties stipulated that medical causation was not an issue before the trial court. The Appeals Court found the technical wording and structure of the stipulations supported the notion that the parties agreed the employee’s injury was caused by the accident. Furthermore, defense counsel did not challenge the trial court’s Order which clearly stated the parties had stipulated that causation was not an issue. As a result, the Appeals Court found no error in the trial court’s interpretation of the stipulation.

The Appeals Court then addressed the trial court’s assignment of a 57% disability rating. The evidence presented at trial indicated the employee’s treating physicians and physical therapists believed she was displaying symptom magnifications, which they define as reports of pain that exceed the objective medical findings. The medical evidence and thorough diagnostic studies provided little explanation for the employee’s pain, and she was given a full work release, without limitations, and a 0% impairment rating.

However, the employee continued to report severe pain and physical disability. At trial, the court noted the employee walked with a significant limp and moved around the courtroom as though she was much older than 44, her actual age. The trial court found the employee’s subjective complaints to be credible in spite of the significant medical evidence that showed otherwise.

In affirming the trial court’s determination of disability, the Appeals Court recognized its duty to uphold a decision that is supported by consideration of the totality of evidence. Though it was in striking contrast to medical evidence, the Appeals Court held that the employee’s subjective reports of pain and physical presentation of disability were sufficient grounds to support the trial court’s determination of disability.

My Two Cents:

This decision is a testament to the power of perceived credibility in workers’ compensation cases. As evidenced in the opinion, a trial court’s confidence in well-informed scientific and medical evidence can be stifled by an employee with a convincing demeanor. As such, there is significant value in developing credibility, or lack thereof, in the eyes of a court.

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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.

The Supreme Court of Alabama recently addressed preemption of the Alabama Workers’ Compensation Act by the Federal Longshore and Harbors Workers’ Compensation Act (LHWCA) inFernando Rodriguez-Flores v. U.S. Coatings, Inc., where an employee sought Alabama workers’ compensation benefits in state court for alleged injuries he sustained while painting in a dry dock on the coast. The employee also filed tort actions for retaliatory discharge and fraud based on a co-employee’s handling of the claim.

The employee recognized that the LHWCA prohibits tort claims against an employer in state court if the basis of the tort is within the scope of the LHWCA. However, the employee cited a narrow exception that allows such actions in state court when the employer intended to harm the employee. The employee further contended that the LHWCA remedies for retaliatory discharge would be inadequate when compared to state law remedies, which allowed for punitive damages.

The trial court dismissed the fraud and retaliatory discharge claims, agreeing with U.S. Coatings that the tort claims were preempted by the exclusivity provisions of the LHWCA.

On appeal, the Supreme Court recognized that there existed a "twilight zone" of concurrent jurisdiction between the LHWCA and the Alabama Act, wherein the location of a work accident provides the employee the option to pursue benefits under federal or state law. In doing so, the Supreme Court also recognized that state law would be preempted by federal law, if the laws were in conflict.

The Court identified a clear conflict between the LHWCA, which prohibits lawsuits against a co-employee, and Alabama common law, which allows for them. Because of this conflict, the Court held that the state law was preempted by the Federal law. The Court further held that U.S. Coatings did not intend to harm the employee, so the action did not fall within the exception. As a result, the Court affirmed the dismissal of the fraud claim.

As for the retaliatory discharge claim, the Court recognized that both the Alabama Act and the LHWCA provided relief for employees who are fired for claiming workers’ compensation benefits, and therefore, the laws were not in conflict. The Court did note that Alabama provides for punitive damages in retaliatory discharge actions, but that the LHWCA does not. However, this discrepancy in potential remedies did not create a conflict between the substantive causes of action. The Court held that the legislative history and interpretation of the LHWCA supports the notion that the federal law shall supplement state law, if possible, and if no conflict exists between the laws, the employee may pursue the action under state law. As a result, the Court held that the employee’s retaliatory discharge claim brought under state law should not have been dismissed and remanded the case back to the trial court.

My Two Cents:

The Alabama Supreme Court made it clear that a work related accident occurring in the twilight zone of concurrent jurisdiction between the LHWCA and the Alabama Act may be compensated by either set of laws. The restriction that the Court enforced supports the long standing preemptive theory, whereby federal law will trump state law when they are in actual conflict. Interestingly, as held in this case, a significant discrepancy in the potential remedies available to an employee will not result in a conflict between a state law and a federal law which address the same cause of action.

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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.

On July 19, 2013, the Alabama Court of Civil Appeals released its opinion in Gore v. Lafarge North America, Inc. wherein it addressed the trial judge’s ability to assign a disability rating that is lower than the impairment rating issued by the authorized treating physician. In Alabama, a judge is not limited by the impairment rating when assigning a disability rating. Although it is common for trial judges to use the impairment rating assigned by the doctor as a minimum, it is unusual to see a disability rating that is lower than the impairment rating.

In Gore, the plaintiff claimed that he was permanently and totaling disabled as a result of rocks falling on him while at work injuring his neck and other parts of his body. Initial treatment provided by the employer did not reveal any injuries and the plaintiff was returned to work at light duty and given pain medication. The plaintiff then went to see his own doctor but did not indicate he had treated with the employer’s doctor. As a result, the plaintiff secured pain mediation from both doctors which was an obvious credibility issue. Discovery later revealed that, prior to the accident, the plaintiff had been off of work for other injuries, including his neck, and was receiving narcotic pain medication up to 4 days prior to the alleged accident. During that period of time he was also off work as a result of being convicted for doctor shopping to secure multiple prescriptions for Xanax. The evidence at trial also revealed that the plaintiff was not truthful in regards to prior neck problems. The plaintiff testified that he never had prior neck pain but his supervisor testified that the plaintiff had been off work, or unable to perform his work, on numerous occasions complaining about his neck, back, shoulder and foot. Medical records also revealed prior medical treatment for back and neck pain. The plaintiff ultimately underwent surgery performed by the authorized treating physician to remove several disk and bone spurs as a result of arthritis at almost every level and a pinched nerve. The initial fusion was unsuccessful and a revision was performed. He was ultimately placed at MMI with light duty restrictions and given a 20% impairment rating to the body. The authorized treating physician testified that, based on the provided history, the accident did cause the pinched nerve, however, it was very challenging to separate degenerative from acute.

The trial Court found that the plaintiff was suffering from similar symptoms prior to the accident evidenced by short term disability 3 times over a 5 year period and narcotic pain medication as recently as 2 months before the accident. The trial Court also questioned the plaintiff’s credibility based on inconsistent testimony regarding prior injuries and his criminal convictions for DUI in the past and the conviction for doctor shopping. The trial Court found that the plaintiff proved that he had an on the job injury but found that it only resulted in a permanent partial disability. The trial Court opined that the plaintiff’s past medical condition accounted for some of the disability and the degenerative conditions could have resulted in the current injuries and/or need for treatment. As a resulted, the judge reduced the doctor’s 20% impairment rating to a 10% disability rating to account for the preexisting condition causing some of the current disability and not the on the job accident.

On appeal the plaintiff argued that the preexisting condition should not have been considered because he was performing his job normally at the time of the accident. He argued that because the accident was one factor of the disability he met his burden of proof since the accident did not have to be the sole cause of the permanent and total disability. The Alabama Court of Civil Appeals agreed that this met the standard for medical causation but stated that the extent that the accident contributed to the disability was the issue. The Appeals Court stated that the preexisting neck injury was not latent or asymptomatic and, therefore, the preexisting condition was the cause of a portion of the disability and was in fact affecting his ability to work at times prior to the accident. The Court of Appeals ruled that the evidenced supported the Trial Court’s finding that a portion of the 20% disability issued by the doctor was not the result of the accident but was the result of the preexisting degenerative condition.

Of note, the Court of Appeals stated that the evidence was sufficient to deny benefits altogether because of the plaintiff’s inability to work on various occasions leading up to the accident but the employer did not cross appeal that issue.

The Court of Appeals remanded the case to the trial Court for a determination on whether the plaintiff suffered any loss of ability to earn because he had not been able to return to work following his injuries.

My Two Cents

: Just because the preexisting condition does not prevent the employee from performing his job prior to the accident do not ignore it. If the preexisting condition is causing, or partially causing, the disability complained of, the Judge can attribute some of the disability to the preexisting condition, and reduce the disability attributed to the work injury.

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 June 28, 2013, the Supreme Court of Alabama released its opinion in the case ofEx parte Stanford D. Isbell, wherein it reversed the the Court of Civil Appeals which overturned a jury verdict in favor of Isbell in a retaliatory discharge lawsuit against his employer, M & J Materials, Inc. In February 2007, Isbell sued M & J for workers’ compensation benefits. His Complaint contained a claim for retaliatory discharge. The underlying worker’s compensation claim settled prior to trial, but the retaliatory discharge claim went to trial before a jury in Jefferson County, Alabama.

At trial, Isbell presented evidence that he had suffered an employment related injury to his right wrist on June 15, 2006 and promptly reported his injury. Isbell then underwent surgery and was placed at MMI in late November of 2006. On September 18, 2006, Isbell was terminated by M & J, allegedly for bringing a loaded firearm into M & J’s facility. There was no dispute as to whether Isbell actually brought the firearm into M & J’s facility, but the exact timing of that incident was disputed. Isbell claimed it happened in April before his workers’ compensation claim ever arose, while M & J alleged that it happened in late June 2006. it was Isbell’s position that his alleged violation of M & J’s firearm’s policy was pretextual and that the real reason he was terminated was because he had pursued a workers’ compensation claim. Isbell claimed that other employees had brought weapons into the facility on other occasions and had not been terminated, and that his termination for a violation of the firearms policy was discriminatory.

M & J moved for judgment as a matter of law at the close of evidence, but the trial court denied that motion. The trial court instructed the jury on the applicable law, and specifically instructed the jury that in order to award Isbell punitive damages, they must first award compensatory damages or nominal damages. The case then went to the jury, and they returned a verdict in favor of Isbell, awarding $0.00 in compensatory damages and $75,000 in punitive damages. The attorneys for both parties and the Judge noted that the verdict was inconsistent. Before the jury was discharged, the judge recalled the jury and reminded it of its earlier instructions. The Jury then went back to deliberate and ultimately returned a verdict awarding Isbell $5,000.00 in compensatory damages and $70,000.00 in punitive damages. The trial court then entered judgment on that verdict, over M & J’s objection. M & J then appealed to the Supreme Court of Alabama. The Court transferred the appeal to the Court of Civil Appeals. On appeal, M & J argued that Isbell had failed to meet his prima facie burden for a retaliatory discharge claim; that the trial court erred in rejecting the jury’s first verdict; and that the trial court should have concluded that the punitive damages award was excessive.

The Court of Civil Appeals agreed with M & J that Isbell failed to present substantial evidence of termination of his employment based solely on his filing of a workers’ compensation claim. In regard to Isbell’s argument that the reason for his termination was pretextual, the Court of Appeals found that Isbell failed to show that M & J applied any policy against the possession of weapons in the work place in a discriminatory manner only to employees who have filed workers’ compensation claims, acted outside of company policy, or disavowed the reason given for Isbell’s discharge. The Court of Appeals then reversed the judgment entered on the jury verdict in favor of Isbell, and Isbell filed a Petition for Writ of Certiorari asking the Supreme Court to review whether the Court of Appeals failed to view the evidence in light most favorable to Isbell and whether the Court of Appeals misconstrued and misapplied applicable law in the course of reaching its conclusion.

In its review of the case, the Supreme Court noted that the case of Alabama Power v. Aldridge, 854 So. 2d 554 (Ala. 2002) was controlling on the issue of what an employee must prove to establish a prima facie case of retaliatory discharge. The Court in Aldridge held that the employee must show the existence of an employment relationship, an on the job injury, knowledge of the injury on the part of the employer, and subsequent termination of employment based solely upon the employee’s on-the-job injury and the filing of a worker’s compensation claim. The Supreme Court noted that an employee may provide circumstantial evidence of a causal connection between his filing of a workers’ compensation claim and his termination by showing: (1) knowledge of the claim by those making the decision to terminate; (2) expression of a negative attitude toward the employee’s injured condition; (3) failure to adhere to an established company policy; (4) discriminatory treatment in comparison to similarly situated employees; (5) sudden changes in the employee’s work performance evaluations following a workers’ compensation claim; and (6) evidence that the stated reason for the termination was false.

The Supreme Court found that Isbell presented evidence of several of those factors, thus establishing a prima facie case of retaliatory discharge. The Supreme Court noted that once Isbell established a prima facie case, the burden then shifted to M & J to come forward with evidence that Isbell was terminated for a legitimate reason, which they did. At that point, the burden shifted back to Isbell to prove that the reason given by M & J was not true, but was a pretext for an otherwise impermissible termination. The Supreme Court ruled that Isbell had in fact presented sufficient evidence to show that the violation of M & J’s firearm’s policy was pretextual by showing that several other employees who had brought firearms into the M & J plant on other occasions without being terminated. Additionally, other employees testified that they were not aware that M & J even had a specific policy prohibiting firearms in the plant. Finally, M & J failed to prove that Isbell was ever told that he could be fired for bringing a firearm into the plant. As such, the Supreme Court reversed the Court of Appeals decision and remanded the case to the Court of Appeals to address whether the trial court erred when it re-instructed the jury after it returned an inconsistent verdict, and whether the punitive damages verdict was excessive.

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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 June 21, 2013, the Alabama Court of Civil Appeals released its decision in the case ofSamuel Roblero v. Cox Pools of the Southeast, Inc. In that case, the Court of Appeals upheld the trial court’s ruling that uninsured motorist settlement proceeds that Roblero received after a work related motor vehicle accident were subject to the employer’s subrogation rights. The facts of the case before the court were that on May 10, 2010, the employee, Samuel Roblero, had been involved in a motor vehicle accident occurring in and arising out of his employment with Cox Pools. The driver of the other vehicle involved in the accident was at fault, but he was uninsured. The vehicle Roblero was driving was owned by Cox Pools, and the employer had a policy of uninsured motorist insurance covering that vehicle with policy limits of $3,000,000. Cox Pools had paid Roblero over $20,000.00 in TTD benefits and had expended more than $47,000.00 for Roblero’s medical treatment. Roblero settled his claim for uninsured motorist benefits with the UM carrier for $30,000.00. Then, Roblero filed a Complaint seeking workers’ compensation benefits from Cox Pools, alleging that he had suffered a permanent disability as a result of the accident. Cox Pools then filed a Motion for Summary Judgment seeking dismissal of Roblero’s workers’ compensation claim on the basis that he was estopped from recovering workers’ compensation benefits because it would result in an impermissible "double recovery" for the same injury. Cox Pools also asserted subrogation rights to the $30,000.00 that Roblero had received in uninsured motorist insurance benefits. The trial Court conducted a hearing on Cox Pools’ Motion for Summary Judgment and ruled that Cox Pools had a right to subrogate against the $30,000.00 Roblero received from the uninsured motorist settlement. Additionally, the trial court dismissed Roblero’s workers’ compensation claim because it found that Cox Pools was not allowed the opportunity to participate in the settlement with the uninsured motorist insurer.

Roblero appealed, but he failed to assert that the trial Court erred in determining that the uninsured motorist insurance settlement was subject to Cox Pools subrogation rights. Instead, he argued that the court "improperly grouped" the credit for compensation benefits with the subrogation allowed against medical expenses, and that the court improperly dismissed his claim for workers’ compensation benefits. In its decision, the Court of Appeals noted that § 25-5-11 of The Alabama Workers’ Compensation Act clearly allows an injured employee to maintain a third party action and an action for workers’ compensation benefits at the same time, and that dismissal of Roblero’s claim was therefore improper. The Court of Appeals reversed the portion of the trial Court’s order dismissing Roblero’s workers’ compensation claim, but upheld the portion of the judgment determining that the uninsured motorist benefits were subject to Cox Pools’ subrogation rights since Roblero failed to argue that issue on appeal.

My Two Cents:

The trial court’s ruling on Cox Pools’ subrogation rights would have most likely been reversed as well if Roblero had argued that issue on appeal. The Court noted the case ofBunkley v. Bunkley Air Conditioning, Inc., 688 So.2d 827 (Ala. Civ. App. 1996) was controlling on the issue, and that case held that uninsured motorist benefits were not subject to an employer’s subrogation rights. The Court of Appeals went to great lengths to point out that Roblero failed to make this argument on appeal, thus waiving that argument.

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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 at cdrummond@fishnelson.com or (205) 332-3414.

Office Max, Inc. v. Academy, Ltd. - Released May 17, 2013

This case stems from a workers’ compensation case involving an employee of Office Max. The employee claimed that in 2002 and 2005 she injured her knees and shoulders, respectively, while working in the line and scope of her employment with Office Max. On three occasions, June 2008, March 2010 and July 2010 the employee sought orders compelling Office Max to provide medical treatment, which were granted. Office Max responded to the second motion arguing that the employee suffered a new injury, or aggravation of a preexisting injury, to her knees and shoulders while working for her new employer, Academy, Ltd. Pursuant to the Last Injurious Exposure Rule, Office Max argued that Academy was responsible for the medical treatment and any disability benefits related to the current treatment and injury. Office Max brought Academy into the action and Academy responded with a motion for summary judgment. Academy argued that the employee suffered a recurrence of the injuries she originally incurred while employed by Office Max. At the same time the employee filed a fourth motion to compel Office Max to provide further surgery on the left knee. The trial court granted the Motion for Summary Judgment and the Motion to Compel.

Under the Last Injurious Exposure Rule liability falls on the employer or carrier covering the risk at the time of the most recent injury with a casual connection to the disability. In order to determine this, the court must decide if the second injury is a new injury, an aggravation of a prior injury, or a recurrence of an old injury. If deemed a recurrence, then the first employer/carrier is responsible. However, if the second injury is a new injury or aggravation of the first injury, the second employer/carrier is responsible. A recurrence is found to have occurred when the second injury does not even slightly contribute to the disability. This is supported when the employee suffers injury, followed by a period of work with continued symptoms and then suffers a second event causing a second period of disability. An aggravation is deemed to have occurred when the second injury contributed independently to the final disability.

In regards to the shoulders, prior to starting employment with Academy in 2007, the employee suffered from tendinitis in both shoulder that lead to a diagnoses of a rotator cuff tear in the right shoulder. This lead to surgery in January 2007 and a determination that the plaintiff suffered from a 8% impairment rating in October 2007. In November of 2008, over one year after starting her job with Academy, the employee reported increased symptoms in her right shoulder which was ultimately determined to be another rotator cuff tear requiring surgery. After that surgery it was determined that the employee had a 9% impairment. The authorized treating physician testified that this would certainly be an aggravation. The Alabama Court of Civil Appeals found that the doctor’s testimony, coupled with the increased impairment would amount to substantial evidence supporting a finding that the employee suffered an aggravation and that Academy was responsible for the medical bills and indemnity benefits.

As to the knee, the evidence showed that, prior to her employment with Academy, the employee had no significant abnormalities. However, after her employment with Academy an MRI revealed a medial meniscal tear. The employee also testified that during her employment with Academy her job duties aggravated her knee condition. Given the new damage and the employee’s testimony, the Court of Civil Appeals again found that there was substantial evidence supporting a finding that the employee suffered an aggravation and Academy was responsible for the medical bills and indemnity benefits.

The Court of Civil Appeals found that the trial court erred in granting the motion for summary judgment in favor of Academy noting that the trial court must decide which employer is responsible given that the facts support that the employee suffered a compensable injury.

The Court of Civil Appeals also found that the order compelling Office Max to pay for medical treatment was premature and reversed it as well.

Of note the Presiding Judge, J. Thomas and Judge P.J. Thompson, wrote specially to highlight the problem created by these situations and called for a legislative amendment to address the issue.

My Two Cents

: Depending on the facts and circumstances of a particular case, it may be advisable to consider paying for medical treatment pending a judicial determination of responsibility so that you do not lose control of the medical treatment (SeeFlour Enterprises, Inc v. Lawshe blog posting, February 6, 2009). In the event that the judge eventually agrees that the other employer is responsible, then full reimbursement will also likely be ordered. However, if you are not successful, then you will have maintained control of the medical treatment.

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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 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.

Reps. Dave Reichert (R-WA) and Mike Thompson (D-CA) introduced the Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act (H.R. 1982) into the House of Representatives May 15, 2013.

The bill establishes clear and consistent standards for the administrative process which provides for reasonable protection of the injured worker and Medicare. Supporters indicate that it will benefit injured workers, employers and insurers by creating certainty as well as allowing the settlement process to move forward without the delays that parties are currently presented with.

The legislation is supported by the American Insurance Association, the American Bar Association, the National Council of Self-Insurers, Property Casualty, Insurers Association of America, UWC- Strategic Services and the Workers Injury Law and Advocacy Group (WILG).

The bill will likely be referred to the Ways & Means Committee for consideration.

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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 is 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 April 19, 2013, the Alabama Court of Civil Appeals released its opinion in McAbee Construction, Inc. v. Elvin Allday. At trial, the employee presented evidence that he had worked as a boilermaker since 1986. During that time, he had sustained multiple work related injuries to his back and shoulders. However, the evidence revealed that the employee had fully recovered from those injuries and was working without restriction. During a temporary shutdown of the mill operated by his regular employer, the employee took a job with McAbee Construction and claimed a work accident resulting in injury after only 5 days with his new employer. Initially, the employee claimed only arm and shoulder problems but, a few days later, also claimed back pain. Eventually, the employee underwent a two-level lumbar fusion and a decompressive laminectomy. At trial, the judge considered medical testimony stating that the employee could have experienced the same problems even without a new accident based on his medical history. There was also evidence that the FCE was rendered invalid by symptom magnification. Ultimately, the judge determined that the back injury was compensable and awarded permanent and total benefits for the lifetime of the employee.

On appeal, the Court of Civil Appeals determined that there existed substantial evidence to support the permanent and total verdict and, therefore, affirmed that aspect of the judgment. In doing so, it addressed a few issues of interest.

Notice

On appeal, the employer asserted that the employee did not provide proper notice of his back injury. The Court of Civil Appeals noted that only notice of the accident is required and that notice of the exact nature of the injury that flows from the accident is not required.

Depression

the employer also asserted that the judge improperly related the employee’s claims of depression to the accident because the employee had failed to allege depression in his complaint. The Court of Civil Appeals noted that, while the judge’s order made reference to the testimony of a psychologist, it was for the purpose of explaining the symptom magnification referenced in the FCE. Specifically, it was the opinion of the psychologist that depression can cause or contribute to symptom magnification.

AWW

At trial, the employee testified that he chose to work only 40 weeks a year in order to spend more time with his family. As a result, the judge elected not to use one of the three predesignated methods set forth in the Alabama Workers’ Compensation Act for computing AWW. Rather, the judge took the amount earned by the employee in the one week he worked for his employer, multiplied it times 40 weeks, and then divided it by 52 weeks. The Court of Civil Appeals agreed that judge’s method was equitable to both parties and was an acceptable deviation from the standard three methods.

Lifetime Benefits

The employer asserted and the employee conceded that it was improper for the order to state that benefits were owed for the employee’s lifetime. Therefore, the case was remanded to the judge to revise the order to state that benefits were only owed for the duration of the employee’s permanent disability.

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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 March 1, 2013, the Alabama Court of Civil Appeals released its opinion in Ex Parte Russell Threadgill wherein it denied in part and granted in part the employee’s petition for mandamus relief.

At trial, the employee claimed that he had two accidents. His first accident allegedly resulted in injuries to his back, left leg, right arm, and right shoulder. His second accident allegedly resulted in injuries to his left ankle and right shoulder. The employee testified that his second accident was the direct and natural consequence of injuries resulting from the first accident. Specifically, he claimed that the tingling and numbness in his left leg from the first accident caused him to fall. The employer presented medical evidence that rebutted the employee’s claims by demonstrating that the employee had not been experiencing those problems prior to the second accident. The judge ultimately held that the employee’s second accident was not a direct and natural consequence of his previous injuries. Additionally, the judge found that the second accident was not compensable because the employee could not show that his employment caused him to roll his ankle and fall.

The Court of Civil Appeals agreed that substantial evidence supported the trial judge’s finding that the employee’s job did not cause the second accident and that the second accident was not a direct and natural consequence of his previous injuries.  However, the Court found that the trial judge erred  in denying benefits for the right shoulder injury solely on the grounds that the second accident was not compensable. The Court stated that evidence indicated the shoulder injury may have been the result of the first accident and that the trial judge failed to resolve that dispute. The trial judge was therefore directed to determine whether or not the right shoulder injury was the result of the first accident.

My Two Cents:

Because the Court granted the employee’s petition in part, the trial judge will likely do one of two things: Either find the shoulder injury was the result of the first accident and award benefits or find that the shoulder injury was not the result of the first accident and deny benefits.

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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.

On February 15, 2013, the Alabama Court of Civil Appeals released its opinion in CVS/Caremark Corp. v. Gloria Washington wherein it addressed  the affirmative defense of judicial estoppel in the workers’ compensation context. Specifically, the Court noted the availability of the defense but only when properly pled. 

The Court of Appeals had previously addressed the issue in White Tiger, Inc. v. Paul Clemons (released January 13, 2012).  In that case, the Court ruled that a claimant’s assertion that he was available and able to do some work at his unemployment hearing, did not prevent him from being awarded permanent and total disability benefits in his workers’ compensation case.  The Court noted that being willing and able to do some work does not necessarily mean that you are able to secure employment that you are physically able and qualified to do. In the workers’ compensation case the plaintiff testified that he could not secure work because of his disability but he would give it a shot if someone hired him for a job he was qualified to do. For this reason the Court held that the two statements, in separate judicial proceedings, did not contradict one another in order to satisfy the necessary criteria for judicial estoppel to apply. 

In the more recently decided Washington case, the Court held that the employer waived its right to assert judicial estoppel as a defense by not affirmatively asserting or pleading it.  The Court further noted that the employee would have been judicially estopped from prevailing on a claim for permanent and total disability benefits based on the Court’s rationale in Clemons.  The Court distinguished the two cases because the employee in Washington testified in her workers’ compensation case that she could not work at all because of her pain and she had not sought employment.  The employee further admitted that she misrepresented her condition and ability to work in her claim for unemployment benefits. Unlike the Clemons case, in which the plaintiff testified he would give it a shot if he was hired in a position he was qualified for in the workers’ compensation case, the employee in Washington testified that she could not work and had not sought work because her injury/pain prevented her from working at all. Therefore, the two statements were in direct conflict of one another.  

Practice Pointer: Judicial estoppel is a viable defense in workers’ compensation cases but only if it is affirmatively pled.   

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ABOUT THE AUTHOR 

The article was written by Joshua G. Holden, 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 Defense Network (NWCDN). If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at jholden@fishnelson.com, 205-332-1428 or any firm member at 205-332-3430.