State News

On August, 8, 2014, the Alabama Court of Civil Appeals released its opinion inFab Arc Steel Supply, Inc. v. Timothy Dodd wherein it reversed a permanent and total disability award. Among the several issues on appeal, the Court considered whether there was enough evidence to support a finding that an L-1 herniation that was asymptomatic for more than a year following the accident was causally related to the accident. The Court also considered whether a determination of permanent disability could be made when the employee was not yet at maximum medical improvement (MMI). In addition, the Court considered whether a termination for misconduct could be considered a constructive refusal of suitable employment for purposes of denying temporary total disability (TTD) benefits.

L-1 Herniation

On appeal, the employer relied on the testimony of neurosurgeon, Dr. James White. At his deposition, Dr. White testified that he could not connect the herniation to the accident since the symptoms of lower back pain radiating into the lower extremities did not begin for over a year following the accident. In affirming the Trial Court on this issue, the Court of Appeals acknowledged that such a delay in symptoms certainly weakens the inference that a post-accident appearance of an injury is related to an accident. However, the Court relied on the fact that a herniation is the type of injury that results from trauma, that late symptoms did not rule out the accident as the cause, and that no doctor attributed the herniation to any other cause such as a degenerative condition.

MMI

Since the employer denied that the L-1 herniation was related to the accident, it refused to provide any of the recommended treatment associated with the injury. Dr. White testified that he recommended surgery and/or injections. At trial, the employee testified that he wanted to have the surgery. On appeal, the employer asserted that, if the herniation was determined to be related, then the employee could not be considered to be at MMI and, thus, any determination of permanent disability was premature. The Court of Appeals agreed and reversed the permanent and total disability award. The Court further ordered that the recommended treatment be provided and that the issue of permanent disability be readdressed once the employee was placed at MMI.

Constructive Refusal of Suitable Employment

At trial, the employer presented evidence that the employee was terminated due to insubordination and argued that his conduct amounted to a constructive refusal of suitable employment. The employer took the position that it should not be responsible for paying TTD benefits when it made a job available that fell within the physical limitations assigned by the treating physician but then the employee basically got himself fired. The Trial Court determined that the employer’s reasons for terminating the employee were without merit. The Court of Civil Appeals declined to reverse the Trial Court on that determination and, therefore, could not reverse the determination that TTD was owed.

My Two Cents:

Although the Court of Appeals refused to reverse the Trial Court on the TTD issue, it did not assert that the "constructive refusal of suitable employment" argument was improper. This leaves the door open in the future for this argument to be made whenever an employee is fired due to misconduct.

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About the Author

This article was written by Michael I. Fish, 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 & Holden 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 205-332-1448.

Interim Commissioner Named
The Governor has named the senior Deputy, Michelle (Miki) McGovern, as the new acting Workers’ Compensation Commissioner effective immediately.  She will remain in this capacity until the Governor formally appoints a new Workers' Compensation Commissioner subject to confirmation by the Senate.

This should immediately address the backlog of decisions that has accrued over the several weeks since Commissioner Godfrey resigned.  During that time, Deputy Commissioners have not issued arbitration decisions based upon a concern that there would be no certainty as to whether or not those decisions would have reflected final agency action in the absence of a Commissioner, thereby causing problems with the handling of appeals.  Going forward, Acting Commissioner McGovern will handle or direct all inter-agency appeals, and it is anticipated that arbitration decisions will start issuing immediately.


Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

Hooks v. Coastal Stone Works, Inc.

Released September 5, 2014

The Alabama Court of Civil Appeals ruled that an officer of a corporation must take action to revoke previous certification of exemption from workers’ compensation coverage pursuant to § 25-5-50(b).

On May 24, 2006, Hooks, along with two other officers of Coastal Stone Works, Inc., signed a certificate of exemption to be exempted from coverage under the Alabama Workers’ Compensation Act pursuant to § 25-5-60(b). On November 23, 2011, Hooks was injured and sought benefits under the Alabama Workers’ Compensation Act and filed suit. Coastal Stone Works, Inc. file a motion for summary judgment, which was ultimately granted the second time it was filed. It’s position was Hooks exempted himself in 2006 and never revoked the exemption. Hooks asserted that, if he did not file a certification of exemption each year, the exemption automatically revoked itself. There was no dispute that Hooks did not sign or file anything other than the certification of exemption submitted in May of 2006.

Hooks argued that § 25-5-60(b) states an officer of a corporation may elect annually to be exempt from coverage on the workers’ compensation act. Hooks interpreted this section to require him to annually elect to be exempted from coverage and if he did not the exemption was automatically revoked. Coast Stone Works, Inc. argued that this the provision goes on to state that the exemption may be revoked upon an officer filing a written certification electing to be covered. Coastal Stone Works, Inc. argued that this showed that the legislature intended the requested exemption to remain in effect until the officer revoked the exemption in writing.

The Court of Civil Appeals agreed with Coastal Stone Works, Inc. and stated that if the legislature had intended the exemption to revoke each year unless the officer requested the exemption again it would not have provided the method for revoking the exemption. The Court of Civil Appeals opined that § 25-5-60(b) required an officer to take action to revoke the previous certification of exemption as opposed to the revocation being automatic unless they file another certification of exemption.

MY TWO CENTS:

Any time you are dealing with an injury involving an officer of a corporation make sure to verify that they never submitted a written certification of exemption to the carrier and the Alabama Department of Labor.

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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.

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.

In an effort to reduce painkiller abuse and misuse, the Drug Enforcement Agency (DEA) announced last week that it is reclassifying hydrocodone as a Schedule II Controlled Substance. Under the new regulation, which will go into effect on October 5, 2014, doctors will no longer be able to call in prescriptions for drugs like Lortab and Vicodin. Additionally, patients will only be allowed one 90-day prescription per doctor visit, and will have to actually see their doctor in person before obtaining a refill. According to DEA Administrator Michele Leonhart, "Almost seven million Americans abuse controlled-substance prescription medications, including opioid painkillers, resulting in more deaths from prescription drug overdoses than auto accidents." The official DEA release can be found here.

My Two Cents

The effects of the new regulation on employers could be two-fold. Employers can most likely expect an increase in claims management costs associated with more frequent doctor visits for injured workers who are in long-term opiate therapy. However, the new regulation could also greatly reduce the financial burden placed on employers by "pill mills" that dole out drugs like candy after seeing a patient only once or twice. In either case, employers and claims managers need to be aware of the new regulation to ensure that the medical providers they select to care for injured workers comply with these guidelines.

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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.

Kevin Durnien worked as a tractor-trailer driver for United Parcel Service (UPS) from 1996 to 2008.  He was diagnosed with Parkinson’s disease in 2003 but continued to drive for UPS for several years. 

            On October 25, 2007, Durnien was injured when he fell on his elbow while making a warehouse pickup.  He injured his rotator cuff and underwent arthroscopic surgery on his shoulder.  The case was accepted and benefits were paid.

            Several weeks after his surgery, Durnien noticed that his Parkinson’s disease was getting worse:  he was experiencing tremors and his medication was increased. 

            Durnien filed a claim petition against UPS on December 5, 2007 for his shoulder injury.  On April 6, 2009, he applied for Second Injury Fund benefits claiming he was totally disabled as a result of a combination of a work injury and a preexisting Parkinson’s condition.  Durnien was separated from his employment in October 2008.

            The matter was tried before the Chief Judge of Compensation, the Honorable Peter J. Calderone.  Four experts testified in the case, two for each side.  The Chief Judge found that the work injury did not materially worsen petitioner’s Parkinson’s disease, nor was petitioner entitled to Second Injury Fund benefits.  However, he did award petitioner 20% permanent partial disability for the shoulder.  Petitioner appealed.

            The Appellate Division first focused on the issue of whether the work accident materially worsened petitioner’s Parkinson’s disease.  The Court noted that Judge Calderone rejected the testimony of petitioner’s neurologist, Dr. Bereanu, because she was “not a credible witness [and was] ill prepared for her testimony which was essentially a repetitive without foundation assertion that the work accident somehow aggravated petitioner’s Parkinson’s Disease in some non-measurable way.” 

            In respect to respondent’s neurologist, Dr. Steven Mandel, the Court observed that the Chief Judge found his testimony to be sound in stating that the Parkinson’s condition was not aggravated by the work accident.  The Chief Judge was impressed as well that Dr. Mandel actively treats patients with Parkinson’s disease.

            In regard to the entitlement to Second Injury Fund benefits, the Court again affirmed the Chief Judge because the claimant, following his separation from employment in 2008, actually applied for unemployment benefits.  As the Court said, one must be able to work and be available for work to obtain unemployment benefits underN.J.S.A. 43:21-4 (c) (1).  In essence, the petitioner’s application for unemployment benefits was inconsistent with his contention that he was totally disabled, which is a requirement for Second Injury Fund eligibility.

            The Court also agreed with the Chief Judge that an independent reason to reject the Second Injury Fund claim was that petitioner’s Parkinsons’s condition progressed AFTER the work injury.  The statute precludes Fund benefits“[i]f a person who is rendered permanently partially disabled by the last compensable injury subsequently becomes permanently totally disabled by reason of progressive physical deterioration or preexisting condition or disease.”  N.J.S.A. 34:15-95 (d).

            While it was true that the Parkinson’s condition preexisted the work injury, petitioner had been able to work and had been certified for a CDL license.  The condition apparently worsened after the work accident for reasons unconnected to the accident.  The Court said, “Although Durnien’s physician would not certify him for a CDL, Durnien testified that he was capable of continuing to work at UPS and sought a position that did not require a CDL.  He failed to obtain a lighter-duty job not because of a disability, but due to his lack of seniority.”

            This case illustrates several important points.  First and foremost, practitioners need to spend time choosing the right expert witness. In this case, UPS made a wise choice in selecting its expert because he was well qualified and treated patients with Parkinson’s disease.  Secondly, Second Injury Fund eligibility depends on preexisting conditions and will not be available to those whose prior condition worsens after the work injury and only then become totally disabled.  Lastly, the case illustrates that an expert’s testimony must contain more than just a bald assertion that a given condition is work related.  The Chief Judge rejected the expert opinion of the petitioner’s neurologist because there was no scientific foundation for it. 

Flanagan Lumbar Co., Inc. v. Tennison

Released August 22, 2014

The Alabama Court of Civil once again ruled that devices to be considered "other apparatus" set out in §25-5-77(a) of the Alabama Workers’ Compensation Act should be decided on a case by case basis. The Court of Civil Appeals pointed out that the Alabama Supreme Court has previously ruled in Ex parte Mitchell, 989 So. 2d 1083, 1092 (Ala. 2008) that the definition of "other apparatus" is an item that is "(a) reasonably necessary and (b) intended to improve the injured employee’s condition, to prevent the further deterioration of the employee’s condition, or to relieve the employee from the effect of his condition by restoring the employee to a basic level of appearance or functioning. The determination of what constitutes a reasonably necessary ‘other apparatus’ should be made on a case-by-case basis."

Tennison had settled his worker’s compensation claim for a back injury with Flanagan Lumbar and medical benefits were to be left open. Tennison’s authorized treating physician was Dr. John Roberts. At some point during treatment Dr. Roberts recommended pool therapy. However, Tennison indicated that this made his condition worse so he stopped going. Some time later Tennison presented to Dr. Robert’s and asked that he prescribe a walk-in bathtub for Tennison’s home. Tennison told Dr. Robert’s he had not had an actual bath in 3 years and was unsteady stepping in and out of the regular tub in his home. He also told Dr. Robert’s the water would benefit him and allow him to do his general strengthening exercises at home rather than go to water therapy. Based on this request Dr. Robert’s recommended that the walk-in tub be approved as reasonably necessary. Dr. Robert’s stated in his letter to the carrier that he felt the walk-in tub would help prevent falls getting in and out of the tub and that because of Tension’s disability and de-conditioned body the walk-in tub was reasonable. Flanagan Lumbar refused to approve the walk-in tub and Tennison sought relief from the Circuit Court of Limestone County. The trial court reviewed deposition testimony from Tennison as well as deposition testimony from Dr. Roberts and found that the walk-in tub met the definition of "other apparatus" and, therefore, should be paid for by Flanagan Lumbar. Flanagan Lumbar appealed the decision which the Alabama Court of Civil Appeals reviewed de novo, having to give no weight or deference to the trial court’s findings of fact based on the only evidence presented being via deposition and not live testimony.

On appeal the Alabama Court of Civil Appeals stated that the walk-in tub in this case did meet the definition of "other apparatus" because Dr. Robert’s testified that the walk-in tub was not solely to allow Tennison a access to the bath, unlike like the scooter lift in Ex parte Mitchell. In this case Dr. Robert’s testified that the walk-in tub was a method to prevent falling and water therapy could assist with back pain. Therefore, a walk-in tub could meet the definition of "other apparatus" and did in this case. However, the Court of Civil Appeals then turned to whether substantial evidence was presented to support that the tub was reasonably necessary to 1)improve Tennison’s condition, 2) to prevent the further deterioration of his condition, or 3) relieve him from the effect of his condition by restoring him to basic level of function and appearance.

The Court of Civil Appeals stated that the walk-in tub would not improve his condition based on Dr. Robert’s testimony that he did not believe anything would improve Tennison’s condition. Dr. Robert’s stated that the tub would be helpful to provide potential and temporary pain relief but the Court of Civil Appeals stated that this does not constitute improving someone’s condition. The Court of Civil Appeals also pointed out that reducing the fall risk would not meet the standard in order to establish improving one’s condition.

They then turned to whether it would prevent Tennison’s condition from deteriorating. Dr. Robert’s testified that if Tennison did not get the tub his condition would probably not deteriorate. While Dr. Robert’s testified that it would help prevent Tennison from falling, there was no evidence to support that presented at trial. In fact, the Court of Civil Appeals pointed out that Flanagan Lumbar had present an alternative transfer bench that costs much less than the $18,500.00 walk-in tub.

The Court of Civil Appeals went on to find that the potential temporary symptom relief would not rise to the level of restoring Tennison to the basic level of function and appearance. While Dr. Robert’s testified that it might be helpful from a hygienic standpoint, there was no testimony that Tennison’s showers were inadequate for this.

As a result, the Alabama Court of Civil Appeals ruled that a walk-in tub can meet the definition of "other apparatus" but in this case the evidence did not establish that the walk-in tub was reasonably necessary.

Judge Terry Moore wrote in concurrence to point out that he questioned whether the case should be reviewed de novo and whether the tub actually met the definition of "other apparatus." Judge Moore pointed out further evidence to support his concurring opinion which included Tennison testifying that pool therapy had made his back worse so he stopped going, as well as Dr. Robert’s testifying that the walk-in tub would not be big enough to perform the strengthening exercises, which Tennison claims was the reason for getting the walk-in tub. Judge Moore also pointed out the Dr. Robert’s recommendation for the walk-in tub was based solely on the employee’s request for the tub as opposed to medical reasons that would meet the requirements set out inEx parte Mitchell. Therefore, Judge Moore did not feel the walk-in tub in this case would meet the definition of "other apparatus" as the majority opinion stated. However, he did agree that if it did meet the definition sufficient evidence was not presented to establish it was reasonably necessary.

MY TWO CENTS:

When dealing with a recommendation for a medical device/aid requested pursuant to the "other apparatus" provision of §25-5-77(a) make sure the authorized treating physician gives a detailed explanation of his reason behind ordering the device and not just that he or she believes it is reasonably necessary.

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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.

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 22, 2014, the Alabama Supreme Court released an opinion wherein it considered whether an adult child can be considered a partial dependent for purposes of receiving death benefits. InDonna Banks v. Premier Service Company, Inc., it was stipulated by the parties that the 22 year old child received regular financial support from her father prior to his death. The Trial Court noted in its final order that the adult child was not working but pursuing a double major at college. Since there was no evidence that the adult child was physically or mentally handicapped, the Court held that she did not qualify as a partial dependent. The Court of Appeals agreed noting that the same would hold true even if the adult child was totally dependent upon a deceased worker for support.

Practice Pointer:

The Court noted that the Alabama Workers’ Compensation Act provides that a child is considered a dependent until the age of 18. This is different that the recognized age of majority in Alabama which is 19. When determining the dependency status of a teen, it is important that you apply the correct cut off age.

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About the Author

This article was written by Michael I. Fish, 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

mfish@fishnelson.com or any firm member at 205-332-1448.

On August 22, 2014, the Alabama Court of Civil Appeals released its opinion inTotal Fire Protection, Inc. v Jonathan Jean, affirming the Trial Court’s order denying Total Fire Protection’s Motion to Terminate Medical Benefits based on the Last Injurious Exposure Rule. Jean injured both of his wrists in April 2005 while working for Total Fire Protection (TFP). Jean’s authorized treating physician performed surgery on both of his wrists, including the placement of hardware in the right wrist. Five months later, the Trial Court approved a settlement of indemnity and vocational benefits, with future medical benefits remaining open. After the settlement, Jean went to work for another employer. In June of 2006, TFP filed a Motion to Terminate Medical Benefits, asserting that Jean had developed carpal tunnel syndrome as a result of his job with his subsequent employer, and that TFP was no longer responsible for Jean’s medical treatment under the Last Injurious Exposure Rule. The Trial Court granted TFP’s motion.

In April of 2008, Jean filed a Motion for Relief from the June 2006 Order terminating his medical benefits, seeking to hold TFP responsible for further treatment. The Trial Court granted Jean’s motion, and entered an order reinstating Jean’s medical benefits, and TFP appealed.

On November 13, 2008, the Court of Appeals dismissed TFP’s appeal because it determined that it had been taken from a non-final judgment, since the Trial Court had not adjudicated TFP’s liability for all of the employee’s medical issues, most specifically his alleged carpal tunnel syndrome, and that the Trial Court had not issued findings of fact and conclusions of law in its June 16, 2008 judgment as required under the Alabama Workers’ Compensation Act. After the appeal was dismissed, TFP moved the Trial Court to include findings of fact and conclusions of law in its judgment, which the Trial Court never ruled on. On May 30, 2012, TFP filed another motion to terminate Jean’s medical benefits, asserting identical grounds set out in the 2006 Motion. The parties then deposed the authorized treating physician and submitted his deposition transcript to the Trial Court. On August 9, 2013, the Trial Court entered a judgment finding that there was no conclusive evidence that Jean ever developed carpal tunnel syndrome and that the pain in his right wrist was directly related to the original injury with TFP. The Trial Court Ordered TFP to pay for Jean’s surgery to remove the hardware in his wrist and other treatment related to the original injury. TFP then appealed again, asserting that the Trial Court exceeded its discretion in granting Jean’s Motion for Relief from the June 2006 Order, and the Trial Court had no basis for setting aside that Order.

In its recent opinion, the Court of Appeals affirmed the Trial Court’s decision, stating that the September 2005 settlement became a binding judgment with the same affect as any other final judgment, and that the settlement preserved Jean’s right to future treatment for any injuries sustained in the April 2005 accident. The Court of Appeals further pointed out that those rights could only be extinguished through the procedures set out in the Alabama Workers’ Compensation Act. §25-5-56 of the Act allows a party to have a settlement vacated within six months after settlement only for fraud, undue influence, or coercion. A settlement may also be set aside on other grounds, as provided in the Alabama Rules of Civil Procedure. However, the Court of Appeals pointed out that TFP did not assert any of the procedural grounds outlined in the Rules of Civil Procedure nor did they assert fraud, undue influence or coercion. The Court noted that this case is the first attempt by an employer to use the Last Injurious Exposure Rule to terminate its agreed liability for future medical expenses via post judgment practice, and that TFP had not been able to cite any case in which such a procedure had been followed or approved. While the 2006 settlement explicitly left the issue of future medical benefits open so that the Court retained jurisdiction over any controversy that might arise as to further treatment, the Alabama Workers’ Compensation Act requires that an employer disputing its liability for an injury must file a Complaint so that the issue can be resolved by trial in which both parties have a chance to present evidence. Citing the holding inEx parte Publix Supermarkets, Inc., the Court noted that just as a trial court may not award an employee medical benefits based on an allegation and a motion, a trial court cannot terminate an employee’s right to medical benefits based on allegations in a motion. The Court of Appeals therefore held that the June 2006 Order terminating Jean’s medical benefits violated Jean’s due process, and was therefore, void.

Turning to TFP’s substantive argument that the Trial Court misapplied the Last Injurious Exposure Rule, the Court held that when an employee experiences expected ongoing symptoms from an original compensable injury as a result of routine physical activities in his subsequent employment, in the absence of evidence of some additional harmful change to the underlying anatomical condition of the employee, those expected ongoing symptoms will be treated as a recurrence of the symptoms from the original injury, and not an aggravation of the original injury. Under those circumstances, the Court found that while the repetitive gripping and grasping in Jean’s new employment increased his pain and swelling in his wrist on a temporary basis, the fact that it did not cause any permanent worsening of his baseline physical condition required a finding that he had experienced a recurrence of the 2006 injury, and not an aggravation or new injury with his subsequent employer.

My Two Cents

This decision provides guidance for employers when there is a dispute as to whether medical treatment continues to be owed. According to this holding, the employer needs to file a Complaint and ask for a trial on the merits rather than filing a motion. In any case where the Last Injurious Exposure Rule applies, the employer would also need to add the subsequent employer as a defendant in the lawsuit.

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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 August 22, 2014, the Alabama Court of Civil Appeals released its opinion inGoodyear Tire & Rubber Co. v. Stephen Bush. Bush alleged on February 11, 2011, he was walking down some stairs when he stumbled and fell onto his right knee. He then climbed back up the stairs and notified his supervisor of the accident, which both Bush and his supervisor reportedly laughed off. Bush did not report that he had injured his knee at that time, but he apparently told his supervisor that his knee was swollen and painful a few weeks later. Goodyear denied Bush’s workers’ compensation claim based on Bush’s alleged failure to provide timely and adequate notice of the injury, and Bush filed suit.

The parties proceeded to trial in May 2013. Following trial but before the trial court entered judgment, the parties reached a settlement agreement, which they presented to the trial court for approval in July. The trial court determined that the settlement was not in Bush’s best interest because it would have closed his medical benefits, and rejected the settlement. A few days later, the trial court entered judgment in favor of Bush. The trial court ultimately found that Bush’s testimony that he reported pain and swelling within 90 days of the accident more credible than his supervisor’s testimony that Bush never reported the injury. The court also found that Bush’s right knee injury had limited him to working light duty jobs which required no stooping, squatting, kneeling, climbing or lifting over twenty pounds, and that those restrictions prevented him from returning to work as an automobile mechanic, which was his primary occupation for over forty years. The trial court rejected Goodyear’s argument that Bush’s compensation should have been limited to that set out in the schedule for the leg, and concluded that Bush was permanently and totally disabled. Goodyear appealed, asserting that the trial court exceeded its discretion in refusing to approve the settlement. Goodyear also asserted that the trial court erred (1) in finding that Bush provided adequate notice of his injury, (2) in finding that Bush’s compensation was not limited to the schedule for the leg, and (3) in finding that Bush was permanently and totally disabled.

In regard to the Trial Court’s rejection of the settlement, the Court of Appeals stated that when a settlement is approved by an Alabama Department of Labor Ombudsman, it may only be set aside upon a showing of fraud, coercion or undue influence within 60 days of the settlement. However, when a settlement is presented to the circuit court for approval, it is the duty of the trial judge to ensure that the settlement is in the employee’s best interest. The Court of Appeals held that since the parties chose to submit the settlement to the court for approval, the trial judge had discretion to determine whether the settlement was in Bush’s best interest, and that the judge did not abuse his discretion by rejecting the settlement.

In regard to Goodyear’s notice defense, the Court of appeals stated that while the Act requires notice of an accident, case law indicates that the pertinent inquiry is whether the employer has received actual notice of the injury, such to enable the employer to provide immediate medical diagnosis and treatment in an effort to minimize the seriousness of the injury and facilitate the earliest possible investigation of the facts surrounding the injury. The appellate court noted that Goodyear did not argue that Bush’s alleged notice was insufficient to put Goodyear on inquiry notice. The Court of Appeals stated that since the trial judge had the opportunity to hear and observe the witnesses first hand, the fact that it found Bush’s testimony credible was sufficient to support a finding that Bush gave proper notice of his injury.

However, the Court of Appeals reversed the trial court’s finding that Bush was permanently and totally disabled, because the trial court failed to make a finding that the effects of Bush’s knee injury extended to and affected the use and efficiency of other parts of his body. Citing Advantage Sales of Alabama, Inc. v Clemons, the Court of Appeals reiterated that if the employee does not prove that the injury to the scheduled member prevents him from using the uninjured parts of his body, the injury shall be classified as a permanent partial disability as a matter of law, and no evidence of vocational disability is to be considered.

My Two Cents

The Court of Appeals’ reliance on Advantage Sales of Alabama, Inc. v Clemons is good news for employers, as it resolves what is somewhat of a chicken-egg argument. Employees’ attorneys have long argued that permanent total disability was effectively an exception allowing compensation outside of the schedule. However, as this ruling points out, an inquiry into the effects of the scheduled-member injury on the other parts of the body is necessary before a determination of whether evidence of vocational disability can even be considered. Assuming totally or virtually totally disabling pain or psych are not issues, even if an employee has a severe knee injury, his compensation is limited to 200 weeks unless the effects of his knee injury somehow extend beyond his leg and permanently affect the efficiency of other body parts.

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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.

SUPER CONGRATULATIONS

By Kevin L. Connors, Esquire

            ConnorsLaw proudly congratulates its partners, Kevin L. Connors, Chair of its General Liability Practice Group, and Robert F. Horn, Esquire, Chair of Its Subrogation Practice Group, as both have been named as 2014 Super Lawyers, and we think it about time for this professional acclamation and affirmation of their peer-generated reputations.

            Evincing the high professional standards maintained by both Kevin and Bob, their practices include:

·         General Liability Defense;

·         Product Liability Defense;

·         Automobile Liability Defense;

·         Workers’ Compensation Defense;

·         Workers’ Compensation Subrogation;

·         General Property Subrogation.

            On behalf of ConnorsLaw, their clients and contacts, we proudly congratulate Kevin and Bob on their sensational success.

ConnorsLaw LLP

Trust us, we just get it!  It is trust well spent!

Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere claim denials, entrusting us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania’s Workers’ Compensation Act.

With every member of our workers’ compensation practice group being AV-rated, our partnership with the NWCDN magnifies the lens through which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, businesses, corporations, and insurance carriers, seeking our trial and compensation acumen, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania workers’ compensation practice and procedure.