State News : Alabama

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Alabama

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On December 14, 2012, the Alabama Court of Civil Appeals released its opinion in Goodyear Tire & Rubber Company v. Marvin Wilson. On appeal, was the trial court’s holding that the employee’s current complaints of back pain were caused, at least in part, by a 1986 lumbar back strain. The 1986 claim resulted in a 1987 lawsuit which was subsequently settled with future medical benefits remaining open. Per the authorized treating physician, he had been treating the employee from time to time from 1987 until the present. However, it was his opinion that the employee’s current complaints were likely due to his degenerative arthritis rather than the original compensable lumbar strain. In holding the employer to be responsible for the current care, the trial judge noted that the physician could not rule out with certainty that the lumbar strain did not, at least, contribute to the employee’s degenerative arthritis. In reversing the trial court, the Court of Appeals noted that the physician’s testimony only provided a mere possibility that the current back pain and the 1986 injury were related. As such, the trial judge’s holding was not considered to be supported by substantial evidence.

My Two Cents: At the trial of this case, it was assumed that the burden of proof was on the employer to prove that the current complaints of pain were not related to the previously accepted and compensable injury. However, it should be noted that it is always the burden of the employee to prove, by a preponderance of the evidence, that the complaint for which he or she seeks medical treatment arose out of and in the course of his or her employment.

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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 at mfish@fishnelson.com or any firm member at 205-332-3430.

Beginning July 1, 2012, the maximum worker’s compensation payable will be $771 per week and the minimum will be $212 per week. This change is based on the Director of Industrial Relations’ determination that the State’s average weekly wage was $770.80, and the change is effective for any injury occurring on or after July 1, 2012.

On May 4, 2012, the Alabama Court of Civil Appeals released its decision in the case of Denmark v. Industrial Manufacturing Specialists, Inc. In that case, the Court addressed whether a 16 year old boy who suffered an ankle injury was entitled to double compensation, and whether he was entitled to be compensated according to the schedule for his leg or only for his foot. Lucas Denmark worked part time for IMS, cutting metal-bar stock using a band saw. In March 2006, he and another employee were loading bar stock onto a table, when some of it fell on his left ankle. Denmark had surgery and a metal plate was inserted in his ankle. Although he was eventually released to return to work without any restrictions, Denmark continued to complain of pain that radiated both down to his foot and up his leg. A Circuit Court Judge in Morgan County found that Denmark suffered a 10% partial loss of use of his left foot, and that since IMS had already paid TTD benefits in excess of the value of the 10% PPD, Denmark was not entitled to any additional compensation for his injuries. The trial Court also found that IMS had violated child labor laws by employing Denmark to operate a band saw, but found that he has not entitled to double compensation because there was no nexus between operating the saw and the injury.

Denmark appealed, asserting that the trial Court erred in failing to award him compensation for the partial loss of use of his leg as opposed to just his foot, and that it further erred in failing to award double compensation pursuant to § 25-5-34 after finding that IMS employed him in violation of child labor laws. Denmark argued that since his ankle is above his foot and the pain extended to his leg, he should be compensated for the partial loss of use of his leg. Denmark argued that the Court’s holdings in Boise Cascade Corp. v. Jackson, 997 So.2d 1026, 1032 n. 8 (Ala.Civ.App. 2000), Wolfe v. Dunlop Tire Corp., 660 So.2d 1345 (Ala.Civ.App. 2005), and Simpson v. Dallas Selma Cmty. Action Agency, 637 So.2d 1360 (1994) dictated that an injury extending from a larger scheduled member into a smaller scheduled member must be compensated as an injury to the larger member. However, the Court noted that according to § 25-5-57(a)(3)a.15 of the Act, the amputation of a leg between then knee and ankle shall be considered the equivalent of the loss of the foot. Since there was no evidence that Denmark’s pain extended up his leg beyond his knee, and based on the logic of § 25-5-57(a)(3)a.15, the trial Court properly found that Denmark’s injury was one limited to the foot, and not the leg.

However, the appellate Court reversed the trial Court’s decision regarding double compensation. There was no dispute that minors are prohibited from operating saws, and there was no dispute that moving large pieces of bar stock to put them into the saw was part of Denmark’s job. As such, the Court found that although Denmark was not actually operating the band saw at the time of the accident, Denmark was entitled to double compensation because he was working at a job that he was prohibited from doing due to his age.

An employee had an injury while working for Tyson Poultry in Arkansas. He was placed under light-duty restrictions by his physician, and Tyson accommodated those restrictions. While on light duty assignment, he got into an argument with his female supervisor and called her a pretty harsh explicative (in cartoon language: f@#* you b&!%#) . The employee was suspended for a few days and, when he returned, he was fired for insubordination and gross misconduct. Tyson cut off the employee’s TTD benefits when he was fired citing Arkansas law which allows an employer to suspend benefits if the worker refuses suitable work that accommodates his injuries. An administrative law judge denied the employee’s claim for further benefits. The Workers’ Compensation Commission reversed the ALJ’s decision, ruling that the employee was entitled to benefits. An appellate court then reversed the Commission, again, denying benefits. The case eventually went to the Arkansas Supreme Court, which held that the employee’s misconduct was just that, and did not constitute a refusal of suitable work. The Court found that after committing the misconduct, the employee returned to work, and it was Tyson’s option to fire him or allow him to continue the light duty assignment, so the employee was entitled to continue receiving TTD benefits for the remainder of the period of disability.

MY TWO CENTS

Although this is an Arkansas case, the applicable law is similar to the law that would be applied in Alabama. As was demonstrated in this case, a good faith argument can certainly be made that TTD should be cut off when an employee is basically trying to get fired. Of course you will need a good set of facts in order to be able to satisfy an Alabama Circuit Court Judge that the employee’s misconduct/insubordination was intentional.

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