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Ex parte Johns and Kirksey, Inc.
Circuit Court of Tuscaloosa County, Alabama (February 8, 2013)

The Alabama Court of Civil Appeals recently held that an employee presented substantial evidence that his cumulative-trauma injury occurred in the line and scope of his employment and therefore was compensable.

The plaintiff, Thomas Dodson, sued his employer, Johns and Kirksey, Inc. for workers’ compensation benefits. The employer is a metal-roofing and general contractor. Dodson’s original claim alleged that on November 4, 1996, he sustained an injury to the L5-S1 level of his lumbar spine while lifting a piece of structural steel in the course of his employment. Dodson’s injury was surgically repaired by Dr. Rick McKenzie. Dodson and his employer reached a settlement of his future compensation and vocational benefits as a result of the November 4, 1996 injury. Future medical benefits were left open under the terms of the settlement.

According to the evidence, Dodson returned to work for the employer following the surgery. He performed his full duties, which included performing manual labor. In his amended lawsuit Dodson alleged that after returning to work for the employer, he suffered a cumulative-trauma injury to his back and right leg as a result of performing manual labor in the course of his employment.

The trial court set the case for a hearing. The only issue to be decided at the hearing was whether Dodson sustained a compensable cumulative-trauma injury on February 29 and April 17, 2012. On August 9, 2012, the trial court entered an order determining that Dodson had sustained a cumulative-trauma injury that was compensable under the Act. Dodson was therefore entitled to medical benefits. The trial court deferred a decision on the issue of whether Dodson was entitled to permanent-disability benefits until he reached maximum medical improvement.

The employer filed a writ of mandamus with the appellate court challenging the trial court’s holding. Specifically, the employer argued that the trial court erred in determining that Dodson had proved by “clear and convincing evidence” that he sustained a compensable cumulative-trauma injury. The clear and convincing evidence standard is the highest burden of proof in a civil lawsuit.

To establish causation in a cumulative-injury case, the plaintiff had to prove that “the performance of his or her duties exposed him or her to a risk materially in excess of that to which people are exposed in their everyday lives.” The plaintiff had to prove that the danger or risk “was in fact a contributing cause of the injury.”

The Court of Civil Appeals denied the employers writ of mandamus. In doing so, the court examined the trial court’s judgment which held that substantial evidence was presented that Dodson performed a significant amount of bending, lifting and carrying in the line and scope of his employment. The trial court noted that these activities were not performed in sporadic, isolated instances, but were a routine part of Dodson’s everyday job.

At trial Dodson testified that he spent approximately 60% of his time on the job performing manual labor. A subcontractor for the employer testified that he worked on a general-contracting job with Dodson for 6 weeks in 2008 and Dodson spent approximately 75% to 80% of his time on that job performing manual labor. Another employee testified that Dodson spent the majority of his time performing manual labor.

Conversely, the two owners of the employer testified that from 2005 to 2010, Dodson spent 50% of his time performing manual labor. In addition, a laborer employed by the employer testified that Dodson spent approximately 35% to 40% of his time performing manual labor.

The Court of Civil Appeals held that the trial court, based on its weighing of the conflicting evidence, reasonably could have determined that Dodson performed a substantial amount of manual labor in the course of his employment and that the performance of that manual labor exposed him to a danger or risk materially in excess of that to which people are normally exposed in their everyday lives. The court also held that based upon the medical records and depositions of two treating physicians, the trial court reasonably determined that the manual labor Dodson had performed in the course of his employment was a contributing cause of his disc degeneration at L5-S1.

INJURY TO EMPLOYEE THAT HAD CLOCKED OUT DEEMED NOT COMPENSABLE

McDuffie vs. Medical Center Enterprise
Circuit Court of Coffee County, Alabama (September 14, 2012)

            The Alabama Court of Civil Appeals recently held that an off-the-clock employee that fell and suffered injuries while on her employer’s premises was not injured in the line and scope of her employment. 

            The plaintiff, Nancy McDuffie, was employed as a patient-care attendant at Medical Center Enterprise (MCE).  While employed with MCE, McDuffie also attended classes at a local community college to earn her registered-nurse (“RN”) degree.  As part of the community college program, McDuffie was to attend classes and participate in “clinicals” in which she and other nursing students worked, under the supervision of a college instructor.  The clinical McDuffie participated in was held at MCE.

            It was undisputed that MCE did not provide benefits to pay for McDuffie’s schooling to become an RN nor was the clinical connected to McDuffie’s employment with MCE. 

            On March 12, 2010, McDuffie worked the night shift from 7:00 p.m. to 7:00 a.m.  After changing from her hospital scrubs to her “whites” which she was required to wear as a nursing student, McDuffie clocked out and said goodbye to a supervisor.  McDuffie acknowledged that, at that point, she had no further job duties to perform for MCE. 

            After clocking out, McDuffie proceeded to the lobby to meet her clinical supervisor and her fellow nursing students.  As she reached the lobby, McDuffie realized that she had left a folder in her vehicle that contained materials she needed for clinicals.  According to McDuffie, her clinical supervisor told her to go get the folder. 

            After leaving the lobby to go to her vehicle, McDuffie fell on some stairs in the hallway leading to the parking lot where her vehicle was located.  She was not certain what caused her fall.  McDuffie broke her arm in the fall. 

            McDuffie filed a lawsuit seeking workers’ compensation benefits under the theory that she had fallen while leaving her employer’s place of business.  MCE answered the complaint and argued that McDuffie’s injury arose during the course of her college clinical program and was not connected to her employment. 

            The trial court granted summary judgment in favor of MCE.  Specifically, the trial court determined that McDuffie failed to demonstrate that her injury arose out of and in the course of her employment.  McDuffie appealed.

            On appeal, McDuffie argued that an injury that occurs on the employer’s premises as the employee is leaving work can be compensable under the Act.  McDuffie cited to Alabama case law holding that an employee can recover compensation benefits if he or she is injured in a parking lot owned and maintained by his or her employer.  Brunson v. Lucas, 5 So.3d 1274 (Ala.Civ.App.2008).  McDuffie reasoned that the facts surrounding her fall presented a similar fact situation.

           The question for the Court of Appeals was whether McDuffie’s injury naturally related to her employment.  In affirming the decision of the trial court, the Court of Appeals relied on prior cases holding that in order for an injury occurring on the employer’s premises after the work day has ended to be compensable, the employee must have been “engaged in an act naturally related and incidental to the service or work which he was engaged to perform.”  The court reasoned that relevant to a determination of whether the accident was incident to or related to McDuffie’s employment is the nature of the activity; whether MCE managed, directed, or encouraged the activity; or whether the activity would benefit MCE. 

            According to the Court’s opinion, the evidence was undisputed that MCE did not contribute toward McDuffie’s education, did not direct the manner in which she obtained her education, and did not benefit by McDuffie’s participation in the clinical program in order to further her education.  The court determined MCE established that, at the time of her injury, McDuffie was pursuing her education and the accident did not arise out of or in the course of her employment.  The court felt that McDuffie leaving the MCE building to go to her vehicle had no relation to her employment.  According to the court, it was undisputed that the proximate cause of McDuffie’s injury was her desire to have her materials for her clinical program. 

            The Court of Civil Appeals concluded that, since MCE neither managed, directed or encouraged McDuffie to perform her clinical or other college course work, it was entitled to a judgment as a matter of law.  The Court of Appeals upheld the trial court’s granting of summary judgment holding that McDuffie’s injury was not compensable. 

I hope you have found the above summary helpful and informative. If you have any questions or would like copies of the cases referenced in this letter, please feel free to give me a call.

            For a copy of this and other publications regarding recently released cases of interest in the State of Alabama, please feel free to visit our website at www.robertsasscociates.net/publications.  If you would like to receive these updates via email, please send an email to sroberts@robertsassociates.net.

PAIN EXCEPTION DOES NOT REMOVE CASE FROM SCHEDULED MEMBER PROVISIONS OF ALABAMA’S WORKERS’ COMPENSATION ACT

 

Gold Kist, Inc. vs. Smith

Circuit Court of   Franklin County, Alabama (August 10, 2012)

 

            The Alabama Court of Civil Appeals recently refused to remove an ankle injury from the scheduled member provisions of the workers’ compensation Act based on the “pain exception.”

 

The claimant, Delores Smith, injured her right ankle in a work-related accident on December 3, 2004.  After a visit to the emergency room, the authorized treating physician, Dr. Edward Fisher, performed a surgical procedure on Smith’s right ankle.  As part of the surgery, Dr. Fisher placed three screws and a plate in the ankle.  Following the surgery, Smith continued to complain of pain in her toes, foot and leg.

 

Evidence presented at trial showed that Smith continued to complain to Dr. Fisher of trouble walking because her ankle became “aggravated” with excessive walking.  Dr. Fisher suggested a second surgical procedure to remove the hardware in order to alleviate some of the pain.  On February 24, 2006, Dr. Fisher performed a second surgery in which he removed the hardware from Smith’s right ankle.  On March 16, 2006, Dr. Fisher released Smith to return to work without any restrictions.

Dr. Fisher placed Smith at maximum-medical improvement on May 30, 2006 and confirmed that she could return to work without any restrictions.

 

On October 12, 2006, Smith informed Dr. Fisher that she was having a pain in her back.  Subsequently, Smith’s personal care physician referred her to Dr. David Longmire, a pain management physician.

 

After performing a nerve conduction study, Dr. Longmire felt that Smith suffered from allodynia, which is sensitivity to light touch.  Also, Dr. Longmire felt that Smith suffered from mechanical allodynia, a gait disorder.  Dr. Longmire based this on his observation of Smith walking in a way so as to limit any additional pain in her ankle by readjusting her weight.  Dr. Longmire testified that he could not determine whether Smith’s condition was the result of problems with her back, her right ankle, or a combination of problems with the back and ankle.  Smith claimed that the pain that she suffered from interfered with her ability to sleep, clean her home, visit with her grandchildren, and maintain employment.

 

Smith testified at trial that her pain was so severe that she could not maintain employment.  She claimed that her pain interfered with her everyday activities because her foot felt heavy and constantly throbbed.  Smith further testified that she had a strong pain tolerance and that she did not take pain medication until her pain got “too bad.”  According to Smith, she only took medication “occasionally.”

 

The trial judge held that Smith was permanently and totally disabled.  Gold Kist appealed.

 

The issue on appeal was whether the trial court erred in finding Smith permanently and totally disabled as a result of the injury to her ankle and awarding benefits outside the scheduled member provisions of the Act.  Specifically, Gold Kist contended that the evidence presented to the trial court was insufficient to support any award of benefits outside the schedule based on the “pain exception.”

 

In reversing the decision of the trial court, the Court of Appeals cited to the  “pain exception,” outlined in the case of Norandal U.S.A., Inc. v. Graben, 18 So. 3d  405 (Ala. Civ. App. 2009).  The pain exception allows an employee to be compensated outside the schedule for an injury to a scheduled member.  In Graben, the court held that a worker sustained a permanent injury to a scheduled member resulting in chronic pain that was “so severe that it virtually totally physically disables the worker.”  Under these circumstances, the worker would not be limited to the benefits set out in the schedule.

 

In support of its decision to reverse the trial court, the Court of appeals cited to its recent opinion in Good Year Tire and Rubber Co. v. Haywood in which it stated:

 

“for pain in a scheduled member to be totally, or virtually totally,

debilitating to the body as a whole, that pain must be such that it

completely, or almost completely, prevents the worker from

engaging in physical activities with the uninjured parts of his or

her body.”

 

The court stated that for an injury to a scheduled member to be compensated outside the schedule based on pain alone, the employee must present sufficient evidence to meet the “exceedingly high standard” required by the cases illustrating the “pain exception.”

 

In the present case, the Court of Appeals cited to Smith’s testimony that she only took her pain medications “occasionally” because she had a high pain tolerance.  Smith further testified that she had the ability to walk and perform everyday activities with the use of a cane.  After reviewing the record, the court could not conclude that substantial evidence supported the trial court’s finding that Smith was permanently and totally disabled as a result of the injury to her ankle.  As such, the Court of Appeals held that the trial court erred in awarding permanent and total disability benefits to Smith outside the scheduled member provisions of the Act.

 

I hope you have found the above summary helpful and informative. If you have any questions or would like copies of the cases referenced in this letter, please feel free to give me a call.

 

For a copy of this and other publications regarding recently released cases of interest in the State of Alabama, please feel free to visit our website at www.robertsasscociates.net/publications. If you would like to receive these updates via email, please send an email to sroberts@robertsassociates.net.

RATTLESNAKE BITE DOES NOT ARISE OUT OF EMPLOYMENT

 

Mercy Logging vs. Odom

Circuit Court of Escambia County, Alabama (July 27, 2012)

 

The Alabama Court of Civil Appeals recently held that a snake-bite suffered by an employee did not arise out of his employment.

 

The plaintiff, Johnnie Odom, worked in the logging business for twenty years.  At the time of his injury, Odom was employed as a log-truck driver.  His duties included trimming, binding, and flagging loads and delivering loads to timber and paper mills.

 

On September 24, 2009, Odom and two other employees were part of a logging crew under the supervision of the crew foreman, Aaron Perritt, the son of Mercy Logging’s owner.  The employees drove their personal vehicles and parked them at a service station.  They were met by Perritt, who was driving the labor truck for Mercy.  Perritt then transported the logging crew in the labor truck to the job site where Mercy was cutting timber.

 

At the end of the work day, the employees returned to the labor truck for the ride back to their personal vehicles.  On the way, Perritt drove a short distance to retrieve one of two “Trucks-Entering-Roadway” signs that had been placed on the road to warn traffic.  Shortly after retrieving one of the signs, Perritt spotted a diamondback rattlesnake on the paved road.

Once he saw the snake, Perritt turned the truck in an attempt to run over it and kill it.  Perritt testified that he had a habit of running over snakes whenever he saw them on the road.  He considered the snake particularly dangerous because it was in an area that was adjacent to the job site where he and his crew would be working the following day.

 

As Perritt maneuvered the truck towards the snake to run over it, one of the employees called out “don’t kill it; lets catch it.”  Once outside the truck, Odom grabbed the snake behind its head and dropped it into a bucket.  As he did so he was repeatedly bitten on both hands.

 

Odom was hospitalized from September 24, 2009 until November 3, 2009.  He was in a coma for the first two weeks of his hospitalization.  He experienced a “frozen” shoulder and extensive prolonged swelling of his hands and arms.  During physical therapy, Odom complained of pain in his neck and upper back, and he experienced a popping in his neck.

 

After a trial, the trial court determined that Odom’s injuries arose out of and in the course of his employment with Mercy Logging.  The trial court held that Odom was permanently and totally disabled.  Mercy appealed.

In reversing the decision of the trial court, the Alabama  Court of Civil Appeals focused on whether Odom’s injuries “arose out of” his employment with Mercy.  Under Alabama Law, the employment would be considered a legal cause of an injury, for workers compensation purposes, only when the injury results from an occupational risk.  The Alabama Court of Civil Appeals has previously held that an injury arises out of employment if it arises “from any risk or danger incidental to the character of …employment.”

 

 

In its opinion, the Court of Appeals observed that the trial court’s ruling focused on the occupational hazard that snakes present to Mercy’s employees when the employees are conducting logging operation in the woods.  The Court of Appeals noted that Odom’s injury did not occur while he was conducting logging operations or while he was in the woods.  In fact, Odom acknowledged at trial that catching a rattlesnake on a public roadway was not an activity caused by his employment.  The Alabama Court of Civil Appeals framed the legal question to be answered as follows:

 

“Whether Odom’s occupational risk of being bitten by a snake during logging operations in the woods has any causative relation to the snake bite that Odom actually suffered on September 24, 2009, when he voluntarily left the safety of the vehicle in which he as a passenger and attempted to catch a snake that was lying on the roadway.” 

 

The Court of Appeals answered the question in the negative.  The court reasoned that the snake on the roadway posed no risk – occupational or otherwise– to Odom so long as he remained in the vehicle in which he was riding.  Once he voluntarily exited the vehicle and attempted to catch the snake, the risk that caused Odom’s injury was personal to him and not “sufficiently related to his employment to be considered as an occupational hazard.”  Dallas Mfg. Co. vs. Kennemer 8 So.2d 519 (1942).  The Court of Appeals felt that the hazard Odom encountered on September 24, 2009, was not peculiar to loggers.  It was one that would be shared by any passing motorist who, after having spied a snake on the roadway, exits his or her vehicle and undertakes to catch the snake.

 

The Alabama Court of Civil Appeals reversed the decision of the trial court holding that Odom had suffered an injury arising out of his employment with Mercy Logging.
I hope you have found the above summary helpful and informative.  If you have any questions or would like copies of the cases referenced in this letter, please feel free to give me a call.

 

For a copy of this and other publications regarding recently released cases of interest in the State of Alabama, please feel free to visit our website at www.robertsasscociates.net/publications.  If you would like to receive these updates via email, please send an email to sroberts@robertsassociates.net.

MINOR INJURED AT WORK ENTITLED TO DOUBLE COMPENSATION

 

Denmark v. Industrial Manufacturing Specialists, Inc.

Circuit Court of Morgan County, Alabama (May 4, 2012)

 

The Alabama Court of Civil Appeals recently held that a 16-year-old part-time employee injured while performing a job that minors are precluded from performing under Alabama Law was entitled to double compensation for his work-related injury.

 

The plaintiff, Lucas Denmark, was a 16-year-old part-time employee of Industrial Manufacturing Specialists (IMS).  Denmark was injured on March 9, 2006.  One of his job duties at IMS was to use a band saw to cut metal-bar stock, or raw metal, which was sometimes up to 20 ft. long, into smaller segments.  On the date of the accident, Denmark and another IMS employee were loading metal-bar stock weighing 1,300 lbs onto a table and were to place it onto a conveyor roller so that it could be cut by the band saw.  Denmark was crushed under the bar stock, suffering an open fracture to his left ankle.

 

Denmark had surgery to repair his fractured left ankle.  Four months after the accident, Denmark’s  physician determined that Denmark’s ankle injury had reached maximum medical improvement and he allowed Denmark to return to full-duty work with no restrictions.  The physician testified that he did not believe that Denmark had sustained a permanent physical impairment as a result of his left-ankle injury.

 

The trial court determined that Denmark suffered a scheduled injury resulting in a 10% permanent loss to his foot.  In its Order, the trial court also determined that IMS had violated Alabama’s Child-Labor Laws  by having Denmark operate a band saw.  However, since Denmark was not operating the band saw at the time of his injury, the trial court did not award double compensation for the injury pursuant to the Alabama Workers’ Compensation Act.

 

On Appeal, Denmark argued that he was entitled to double compensation for his injury because, at the time of the injury,  he was improperly employed in a job that minors are precluded  from performing under Alabama Law.  Specifically, Ala. Code §25-5-34 states that “if at the time of injury the minor was employed in violation of or contrary to the law regulating the employment or any part thereof, then the compensation shall be two times what it would be if the employment had been legal.”  Alabama’s  Child-Labor Laws prohibit any person under 18 years of age from being employed to operate any  “power-driven metal forming, cutting, straightening, drawing, punching or shearing machines,” which would include a band saw.

 

The Alabama Court of Civil Appeals agreed with Denmark’s position that he was entitled to double compensation and the Alabama Court of Civil Appeals reversed that portion of the trial court’s judgment.  At the time of his injury, Denmark was maneuvering 1,300 lb bar stock so that the bar stock could be cut with the band saw.  It was undisputed that Denmark’s job duties included operating the band saw.  Thus, the Alabama Court of Civil Appeals held that Denmark was nonetheless  working at a job that minors are prohibited from performing when the accident occurred.  Therefore, Denmark was entitled to receive double compensation for his injury.

 

Denmark had also argued on appeal that his scheduled injury to the left foot should have been treated as an injury to the left leg.  At trial, Denmark stated that the pain from his ankle extended “ kinda” up his leg. The Alabama Court of Civil Appeals felt that the evidence presented to the trial court did not warrant a finding that Denmark suffered a scheduled injury to the leg as opposed to the ankle.  The Alabama Court of Civil Appeals affirmed that part of the trial court’s judgment.

 

I hope you have found the above summary helpful and informative. If you have any questions or would like copies of the cases referenced in this letter, please feel free to give me a call.

 

For a copy of this and other publications regarding recently released cases of interest in the State of Alabama, please feel free to visit our website at www.robertsasscociates.net/publications. If you would like to receive these updates via email, please send an email to sroberts@robertsassociates.net.

EMPLOYEE SUFFERS COMPENSABLE  INJURY RETURNING TO WORKPLACE AFTER  RETRIEVING  ITEM  FROM HIS VEHICLE

 

Ex parte Advantage Resourcing, Inc.

Circuit Court of Mobile County, Alabama (April 20, 2012)

 

The Alabama Court of Civil Appeals recently held that an employee who suffered a slip and fall accident while returning to the employers shop, after retrieving his two-way radio from his personal vehicle, suffered a compensable injury.

 

The employee, Hennon Hollinghead, reported to his customary place of work (shop) on the day of his accident and injury.  After arriving at his normal arrival time, Hollinghead entered the shop by using a walkway extending from a nearby parking lot to the shop.  Hollinghead testified that “everybody” at his work place used the walkway.

 

Hollinghead had left his portable two-way radio unit in his motor vehicle.  He returned to the parking lot to retrieve it.  As he again used the walkway headed toward the shop, Hollinghead slipped on a piece of PVC piping.  He fell on his back and right side and began to experience immediate, debilitating pain.

 

At the direction of his employer, Hollinghead was treated by Dr. William Patton, an orthopedic specialist.  After obtaining X-ray images and performing a physical examination, Dr. Patton initially believed that Hollinghead’s neck pain stemmed from arthritis.  Dr. Patton ordered an MRI.  The MRI revealed foraminal stenosis (degenerative narrowing of nerve conduits) and an accumulation of fluid in the neck.  Dr. Patton referred Hollinghead to Dr. Kevin  Donahoe, an orthopedic surgeon.

 

Dr. Donahoe performed additional testing, including a nerve-conduction study, which revealed that Hollinghead had nerve root pressure near the 5th and 6th cervical vertebrae.  Dr. Donahoe recommended that Hollinghead undergo a corpectomy to remove impinging vertebral disks in the cervical spine in order to alleviate pressure on the spinal cord and affected nerve roots. The employer declined authorization of this surgery contending that Hollinghead’s injury did not arise out of  his employment.  After a hearing, the trial court ordered the employer to pay medical and temporary-total-disability benefits to Hollinghead and to approve the surgical procedure.  The employer appealed the trial court’s ruling.  The Court of Civil Appeals considered the employer’s appeal as a Petition for Writ of Mandamus.

 

The Court of Civil Appeals denied the employer’s Petition for Writ of Mandamus.  In doing so, the Court of Civil Appeals cited to facts of Hollinghead’s fall to support its decision.  At the time of his fall, Hollinghead was in the process of returning to the shop, i.e., “the place where the employee reported at the start of each of his work days.”  Hollinghead’s fall occurred after he had gone to his vehicle to retrieve a two-way radio, which no party disputed was a tool of Hollinghead’s work.  The walkway where the fall occurred was used by other employees.  Hollinghead’s fall stemmed from a PVC pipe that had been allowed to remain in close proximity to the walkway leading to the shop at which Hollinghead and his co-workers were to report to work each day.  The Court of Civil Appeals cited to prior holdings which have held that an employee is covered by the Act for a reasonable time, space, and opportunity before and after he is at or near his place of employment.

 

The Court of Civil Appeals denied the employer’s Petition for Writ of Mandamus and held that the trial court’s order awarding medical and temporary-total-disability benefits was not to be disturbed.

 

I hope you have found the above summary helpful and informative.  If you have any questions or would like copies of the cases referenced in this letter, please feel free to give me a call.

For a copy of this and other publications regarding recently released cases of interest in the State of Alabama, please feel free to visit our website at www.robertsassociates.net/publications. If you would like to receive these updates via email, please send an email to sroberts@robertsassociates.net.

COURT CONCLUDES THAT “TRAVELING EMPLOYEE” SUFFERS COMPENSABILITY INJURY

 

McDaniel v. Helmerich & Payne International Drilling Co.

Circuit Court of Mobile County, Alabama (March 30, 2012)

 

The Alabama Court of Civil Appeals recently held that an employee who was injured in a car accident while on his way to a job site to work on an oil rig fell within the exception of the “going and coming rule” and was acting in the scope of his employment at the time of the accident.

 

The employee, Michael McDaniel, began working for the employer as a drilling contractor in May of 2007.  At the time of his accident on January 10, 2008, McDaniel was living in Alexandria, Louisiana.  The employer is hired by oil companies to drill holes or wells or to place pipes to open wells that have already been drilled.  McDaniel testified that when he was at work, he was on location, which meant that he stepped out of an on-site trailer and went straight to work.

 

At the time of his accident, McDaniel was a “motor man.”  He worked 12-hour shifts and his crew worked 12 hour shifts seven days a week and then was off the next seven days.  McDaniel was also paid for 2 hours a week to attend safety meetings and another hour each week for attending a weekly safety meeting.  Safety meetings were held every morning before McDaniel’s tour went into effect.  The meetings were mandatory and typically lasted 15 to 30 minutes.

 

McDaniel testified that the employer provided the rig crew with crude trailers with bunks to stay because the employer wanted the crew on the work site.  Additionally, the rig manager was provided a trailer with an office inside, and the oil company’s representatives had their own trailer outside the rig.  Gerald Hay, a rig manager, testified that the employer rented the crew trailers to have them on location for use by its employees.  McDaniel testified that he always stayed in the crew trailers during a 7-day hitch.

 

McDaniel was normally the motor man for rig 79.  However, on January 9, 2008, he was assigned to work on rig 136 located in Creola, Alabama.  On January 9, 2008, McDaniel drove his personal vehicle from his home in Louisiana to the job site in Alabama and arrived at approximately 4:00 a.m.  According to McDaniel, he and the remaining crew were disassembling rig 136 in order to move it to another job site located in Chunchula, Alabama.

 

At the end of the day on January 9, 2008, McDaniel claimed that he was told that the crew trailers, which are moved before the rig itself, were being set up at the new job site.  McDaniel was directed to go to the new job site to sleep in the crew trailer that was located there.

 

McDaniel claimed that on January 10, 2008, he and three other crew members were awakened at 5:15 a.m. and attended a safety meeting.  The employer however presented evidence that no safety meeting was conducted at the new job site.  McDaniel testified that at the end of the safety meeting he was instructed to return to the old job site in Creola.  He testified that during the trip, it was extremely foggy, he was traveling on a muddy road in the woods  and the conditions were extremely hazardous.  As he was traveling on a gravel road, his vehicle slid through a stop sign at the end of the road and another vehicle collided with the passenger side of McDaniel’s vehicle, causing him injuries.

 

McDaniel admitted that no one working on rig 136 had told him he had to stay in the crew trailer.  It was undisputed that the employer did not provide McDaniel with a vehicle, per diem for food or anything else, mileage or gas reimbursement, a cell phone, a pager, or a radio.

 

The trial court initially granted the employer’s Motion for Summary Judgment concluding that the employee failed to present substantial evidence that one or more of the exceptions to the “going and coming rule,” which provides that accidents occurring while a worker is traveling on a public road while going to or coming from work generally fall outside the course of the employment, applied in the present case.  McDaniel appealed.  The Alabama Court of Civil Appeals reversed the trial court and remanded the case back to the trial court finding that a genuine issue of material fact existed as to whether the facts of the case fell within one of the exceptions to the going and coming rule.

 

After a trial, the trial court entered its judgment in favor of the employer based on the going and coming rule and the inapplicability of the exceptions to the rule in the present case.  The employee appealed.

 

In reversing the decision of the trial court, the Court of Appeals considered the question, as a matter of first impression, when an employee would be considered a “traveling employee.”  According to the traveling employee exception, the “premises” of the employer would included the entire area devoted by the employer to the industry with which the employee is associated.  The Alabama Court of Civil Appeals reviewed similar cases in the state of Minnesota, the state Alabama based its Workers’ Compensation Act on.  Minnesota courts have adopted the view that a traveling employee is considered to be concluding his employers business any time he is in his prescribed territory.

 

In the case at bar, McDaniel was required to report to rig 136 in Mobile County.  The court also noted that McDaniel was required, in order to keep his job, to drive from his home in Alexandria, Louisiana, to report to rig 136 in Creola. He was “geographically limited by the necessity of being available for work on the employer’s job site.”  The employer invited McDaniel to stay in the crew trailer.  Regardless of whether McDaniel was required to stay in the crew trailer, one was rented and provided by the employer at the site of rig 136 and McDaniel was invited by the employer to stay in a crew trailer, with an assigned bunk, free of charge.  Taking those facts in to account, the Court of Appeals held that McDaniel would be considered a “traveling employee.”  As a  traveling employee McDaniel was acting within the course of his employment at the time of the accident because he was within his employer’s prescribed territory at the time that it occurred.

 

I hope you have found the above summary helpful and informative. If you have any questions or would like copies of the cases referenced in this letter, please feel free to give me a call.

 

For a copy of this and other publications regarding recently released cases of interest in the State of Alabama, please feel free to visit our website at www.robertsasscociates.net/publications. If you would like to receive these updates via email, please send an email to sroberts@robertsassociates.net.

G. A. West & Co., Inc., v. Johnston

Washington County Circuit Court (February 10, 2012)

 

The Alabama Court of Civil Appeals recently held that an employee’s failure to fully disclose his prior medical history on a job application did not preclude him from recovering permanent and total disability benefits.

 

According to the facts of the case, Claiborne Johnston began working for G.A.+ West & Co., Inc., (G.A. West) in August of 2006.  When he applied for a job with G.A. West, he was required to fill out a medical questionnaire.  Johnston answered “no” to questions about other injuries or illnesses which resulted in medical treatment or loss of work, any medications that he had been taking on a long term basis and any other illnesses or injuries for which he was currently seeking treatment.  Johnston did disclose that he injured his coccyx when he fell on a jack stand while employed by a previous employer.  He further disclosed that he filed a workers’ compensation claim regarding that injury and had been assigned a 5% disability rating.  Johnston did not reveal that he had been prescribed Mobic, an anti-inflammatory medication, as a result of that injury.  Johnston also admittedly failed to reveal that he had hip replacement surgeries in 2002 and 2005.

 

Shortly after he began working for G.A. West, Johnston, while working with his supervisor Dale Clements, lost his balance and slipped while standing on a water pipe.  Johnston was able to right himself before falling.  However, he felt excruciating pain in his lower back, through his hips and radiating into his thighs.  Johnston told Clements that he hurt himself, though he initially believed the pain was related to his prior hip replacement surgeries.  Though he injured his hips, Johnston told Clements that he was okay.

 

Shortly after the incident, Johnston scheduled an appointment with the physician that performed the hip replacement surgeries.  He was then referred to Dr. James West, an orthopedic  surgeon.

 

Approximately one year after his injury, Johnston went to the office of G.A. West’s company nurse and reported that he sustained an on-the-job injury in September of 2006.  At that time, Johnston’s previous employer had stopped paying for his medical treatment after it discovered that he had injured his back on the job at G.A. West.

 

Dr. West had previously treated Johnston for his fractured coccyx.  An MRI of the lumbar spine performed in 2005 following his prior on-the-job injury revealed mild disk bulging with mild nerve root compression.  A second MRI performed in 2006 revealed a significant herniation of the disk at L4-5 and a central annular tear at L3-L4.

 

On September 24, 2006, Johnston left G.A. West’s employ because, he claimed, he could no longer perform his job.  After staying out of work for approximately one year, Johnston held various other jobs including forklift operator, backhoe operator and excavator operator.  Johnston explained that the jobs that he held following his 2006 injury were different than his previous employment because they were equipment-operator jobs.  The jobs that he held prior to his injury were typically civil foreman jobs, a job that he described as “hard, labor-intensive work.”

 

At trial, Johnston testified that he did not think he could maintain gainful employment.  Though he had worked in 2007 and 2008, Johnston stated that his back pain was getting worse.  He did however admit that he had recently been injured in a 4-wheeler accident at the time of trial.

 

After a trial in August of 2010, the Circuit Court entered a judgment finding Johnston permanently and totally disabled.  G.A. West appealed.

 

One of G.A. West’s arguments on appeal was that Johnston’s failure to reveal his hip replacement surgeries, his prescription drug usage, and his alleged history of back problems precluded his recovery under Alabama Code §25-5-51.  At trial, Johnston admitted that he did not reveal his prior hip replacement surgeries or his Mobic prescription.  The Court of Civil Appeals held that those admissions did not, in and of themselves, result in an automatic bar to Johnston’s receipt of workers’ compensation benefits.  The court noted that, in order to successfully assert the defense of misrepresentation, G.A. West was required to prove (a) in the course of Johnston’s entering into the employment relationship; (b) G.A. West provided Johnston with the written warning set forth in §25-5-51; (c) Johnston knowingly and falsely misrepresented his physical or mental condition; (d) Johnston’s misrepresentation was made in writing; and (e) Johnston’s condition was aggravated or re-injured in an accident arising out of and in the course of his employment.

 

The court of appeals cited to medical records that indicated that Johnston had suffered from back problems in the past, though they were related to his severe hip problems.  Johnston had stopped reporting back pain after each of his hip replacements.  None of the medical records presented to the trial court indicated that Johnston was ever informed that he had any serious back-related injury or illness.  The court of appeals held “we cannot conclude that Johnston’s failure to note that he made several complaints of back pain over a 20 year period amounted to Johnston’s ‘knowingly and falsely misrepresenting his physical…condition.’”  The court reached the same conclusion as to Johnston’s failure to reveal the use of prescription medication and his prior hip replacement surgeries.

 

G.A. West also argued on appeal that Johnston failed to give proper notice of his injury.  Though it was undisputed that Johnston did not give written notice of his injury, the court noted that written notice is not required where it is shown that the employer had actual notice of the injury.  The court cited to its prior decisions holding that “knowledge on the part of a supervisory or representative agent of the employer that a work-related injury has occurred will generally be imputed to the employer.”  In this case, Dale Clements witnessed the accident and heard Johnston exclaim that he was hurt.  The Court of Appeals held that this evidence was sufficient to support the trial court’s judgment.

 

The Court of Appeals disagreed with G.A. West’s other contentions on appeal, including the argument that sufficient evidence was not presented to support an award of permanent and total disability benefits.  The Court of Appeals affirmed the trial court’s award of permanent and total disability benefits.

 

I hope you have found the above summary helpful and informative. If you have any questions or would like copies of the cases referenced in this letter, please feel free to give me a call.

 

For a copy of this and other publications regarding recently released cases of interest in the State of Alabama, please feel free to visit our website at www.robertsasscociates.net/publications. If you would like to receive these updates via email, please send an email to sroberts@robertsassociates.net.

ALABAMA WORKERS’ COMPENSATION CASE LAW UPDATE

 

 

 

I.                      PERMANENT TOTAL DISABILITY AND RECEIPT OF UNEMPLOYMENT COMPENSATION BENEFITS

White Tiger Graphics, Inc. v. Paul Clemons

Madison County (January 13, 2012)

 

Last week, the Alabama Court of Civil Appeals held that an employee is not barred from making a claim for permanent and total disability benefits even though the employee is receiving unemployment compensation benefits during the same time period.

 

The plaintiff, Paul Clemons, operated a folding machine for his employer’s printing business.  In November of 2008, Clemons sued his employer seeking workers’ compensation benefits.  Clemons’s Complaint alleged that he injured his left knee in a work-related accident in February of 2007.  He also claimed that he injured his right shoulder in a work-related accident in March of 2008.  Clemons then filed an Amended Complaint claiming an additional injury to his right shoulder in a work-related accident in March of 2009.

 

In its  Answer, the employer asserted the affirmative defense of estoppel.  In effect, the Defendant claimed that an employee could not receive permanent and total disability benefits while at the same time receiving unemployment compensation benefits.

 

The trial court entered a judgment awarding Clemons permanent and total disability benefits for his work-related injuries.  The employer appealed to the Alabama Court of Civil Appeals.

 

On appeal, the appeals court noted that the unemployment compensation statute found at §25-4-77(a)(3) states that a recipient of unemployment-compensation benefits  “must be physically and mentally able to perform work in the character in which he is qualified to perform by past experience or training.”  The employer argued that Clemons’s assertion to the unemployment compensation division of the Department of Industrial Relations that he was able to work for purposes of receiving unemployment-compensation benefits prevented him from claiming that he was permanently and totally disabled in the present workers’ compensation case.

 

In affirming the decision of the trial court, the Court of Appeals reviewed case law from other jurisdictions and cited to Larson’s Workers’ Compensation Law:

 

“Thus, the injured claimant may honestly represent to the unemployment-benefits office that he or she is able to do some work, and with equal honesty tell the trial court in a workers’ compensation case later that he or she was totally disabled during the same period since, despite being capable of doing some kind of work, no one would offer a job because of the claimant’s physical handicaps.”

 

The Court of Appeals found Professor Larson’s analysis to be persuasive.  In the case at bar, Clemons testified that he “felt like he was able to work” at the time he received unemployment-compensation benefits.  Clemons testified that he had tried to find work but was unable to find any work that he could do.  Clemons further testified that, if he could find a job, he would give it his “best shot.”  The court reasoned that even if Clemons had found some work for which he was qualified and that he was willing and able to do, that would not necessarily preclude a finding of permanent total disability.

 

The court stated that an employee may be found to be totally disabled if he can:

 

“perform no services other than those which are so limited in quality, dependability or quantity that a reasonable, stable market for them does not exist.”

 

The court felt that Clemons’ assertion to the Department of Industrial Relations that he was willing and able to perform some type of work was not totally inconsistent with his claim that he was permanently and totally disabled for workers’ compensation purposes.

 

The employer also argued on appeal that substantial evidence was not presented by the plaintiff to support an award of permanent and total disability.  The Court of Civil Appeals disagreed, finding ample evidence to support the trial court’s awarding of permanent and total disability benefits.

 

In his special concurrence, Judge Terry Moore did not agree with the majority’s failure to find inconsistency between Clemons  representations to the unemployment compensation division and his claim for permanent-total-disability benefits.  Judge Moore stated that:

 

“A representation that a worker is able to physically and mentally perform jobs of a character within his\her prior work experience, directly contradicts any claim that the worker is not able to perform his\her trade.”

 

However, Judge Moore noted that there was no provision in the Alabama Workers’ Compensation Act which would disqualify an employee from receiving workers’ compensation benefits if he is also receiving unemployment compensation benefits.  Judge Moore stated that it was up to theAlabamalegislature to address this issue.

 

This is a very important opinion.  No priorAlabamacase has held that an employee could receive unemployment compensation benefits and, at the same time, permanent and total disability benefits.  In order to receive unemployment compensation benefits, an employee has to represent on a weekly basis to the unemployment compensation division that he or she is willing and able to return to work and is actively seeking employment.  For a claimant to affirmatively state to the Alabama Department of Industrial Relations that he or she can and will work and is actively seeking employment, while at the same time alleging under workers’ compensation that he or she is permanently and totally disabled, are inconsistent positions.  Hopefully, theAlabamalegislature will address this issue whenAlabama’s workers’ compensation statute is updated in the future.

 

II.        SCHEDULED MEMBER INJURY; PAIN EXCEPTION

 

Brian Haygood v. Goodyear Tire & Rubber Co.

Etowah County (January 13, 2012)

 

The Alabama Court of Civil Appeals recently affirmed a trial court’s award of permanent and total disability benefits to an employee that suffered an injury to a scheduled member (right foot).

 

The plaintiff, Brian Haygood, alleged that on August 12, 2009, he was moving a filled buggy when he felt a “pop” on the bottom of his right foot and experienced a sensation like his foot was “on fire.”  In September of 2009, Haygood was diagnosed with a partial tear of the plantar fascia, a band of tissue on the bottom of the foot.  A walking cast was placed on Haygood’s right foot.

 

Haygood continued to complain of pain despite the walking cast.  When the cast was eventually removed, testing indicated that Haygood had nerve irritation in his right foot and significant thickening of the plantar fascia.  It was also found that the arch of Haygood’s right foot was “hypersensitive.”  Dr. Charles Moorely, his authorized treating physician, ordered a pressure specific sensory device (PSSD) test and an MRI.  The results of the test indicated that Haygood had nerve irritation in his right foot and significant thickening of the plantar fascia that was consistent with chronic irritation or inflammation.  The testing also provided objective corroboration of Haygood’s complaints of pain and periodic numbness and tingling in his foot.  Dr. Moorely felt that the findings were consistent with an injury caused by trauma or overuse. Haygood was diagnosed with post-traumatic plantar fasciitis, heal pain syndrome, and aggravation of tarsal tunnel compression.

 

Dr. Moorely operated on Haygood’s right foot in January of 2010, though the pain continued following surgery.  Dr. Moorely was concerned that Haygood had complex regional pain syndrome (CRPS). Due to this concern, Dr. Moorely referred Haygood to Dr. Michael Cosgrove, a pain management specialist.

 

Dr. Cosgrove felt that Haygood had a milder variant of CRPS.  Dr. Cosgrove testified that Haygood’s complaints were “quite common in patients with lower extremity problems.”  Dr. Cosgrove also attributed Haygood’s problems to an altered gait.

 

In July of 2010, Haygood underwent a functional capacities evaluation (FCE) at Dr. Moorely’s request.  The FCE stated that Haygood could not walk even short distances without using a cane because of his pain.

 

Haygood reached maximum medical improvement on September 19, 2010.  He was assigned a medical impairment rating of 10% to the right foot, 7% to the lower extremity and 3% to the body as a whole.

 

Dr. Martin Jones, an orthopedic spine surgeon, testified via deposition that he had examined Haygood several times in the fall of 2010 because of Haygood’s complaints of back pain.  Dr. Jones felt that Haygood had a herniation of the L4 disk and a bulging disk at L5 of the lumbar spine.  Dr. Jones testified that it was:

 

“not unreasonable to assume that the altered gait could have aggravated Haygood’s underlying back condition whether it was pre-existing or was created as a result of the altered gait.”

 

At trial, Haygood testified that his right foot constantly hurt and that, even when he is lying down, he experienced pain and tingling sensations in the foot.  Haygood claimed that he would lie down approximately 23 hours a day and often cried because of the pain.  He also alleged that he fell often because of the numbness in his foot.  According to Haygood, he had only left the house twice to go to a WalMart store in the two years since the 2009 accident.

 

After a hearing, the trial court entered a judgment finding Haygood to be permanently and totally disabled.  Goodyear appealed.

 

One of Goodyear’s contentions on appeal was that the trial court erred in finding that Haygood was permanently and totally disabled.  Specifically, Goodyear asserted that the evidence did not support a finding that Haygood’s complaints of pain were principally the result of his work injury.  Instead, Goodyear argued that Haygood’s pain was caused by other, unrelated medical conditions.

 

In affirming the decision of the trial court, the Court of Appeals stated that:

 

“Objective evidence was presented that tended to corroborate Haygood’s subjective complaints of pain.”

 

As an example, the court noted that even after Dr. Moorely performed surgery on Haygood’s right foot, Dr. Moorely reported that the foot still had generalized swelling and that the toes on that foot were “red and shiny and cold to the touch.”  In addition, Dr. Cosgrove and Dr. Jones both felt that the pain Haygood experienced in his left foot, leg and lower back, could have been caused by his altered gait, which Haygood had adopted to attempt to alleviate the pain in his right foot.

 

In support of its decision, the Court of Appeals cited to its holding in G. UB. MK Constructors v. Davis (August 19, 2011). In that case, the court stated:

 

“For pain in a scheduled member to be totally, or virtually totally, debilitating to the body as whole, that pain must be such that it completely, or almost completely, prevents the worker from engaging in physical activities with the uninjured parts of his or her body.”

 

The Court of Appeals held that the trial court specifically found that, based upon the evidence and its own observations:

 

“the effects of the right foot pain alone (absent the additional limitation of the lumbar spine) are so severe that it virtually, totally, physically disables Haygood.”

 

Thus, the Court of Appeals concluded that substantial evidence supported the findings of the trial court.

 

 

 

III.                   DEATH BENEFITS

 

ATI Alldyne v. Jean Wiseheart, dependant widow of Gary Wiseheart, deceased

Madison County, (January 13, 2012)

On January 13, 2012 the Alabama Court of Civil Appeals affirmed a trial court determination that an employee’s death was due to exposure to a hydrogen sulfide leak from a reactor on the employer’s premises.

 

The decedent, Gary Wiseheart, was a maintenance mechanic at the employer’s metal-extraction plant.  On December 7, 2008, Wiseheart was not ill the day before and showed no signs of illness on that date.  As part of his duties, Wiseheart was required to work in relatively close proximity to a chemical reactor, referred to as a T-3 reactor, for an extended period of time.  At approximately 2:00 p.m., co-employees Chris Mills and James Langford, chemical operators, began the mixing process in the T-3 reactor in which they added schelite ore to hydrochloric acid.  Within half an hour, Mills noticed the smell of rotten eggs resulting from the presence of hydrogen sulfide in the atmosphere.  This signified to him something was wrong.  Mills tried to locate a leak in the T-3 reactor system.

 

Around that time, Langford discovered Wiseheart lying face-up on the floor 15-30 feet away from the reactor.  Wiseheart was unconscious and unresponsive.

 

Wiseheart was taken to theHuntsvilleHospitalemergency room where he was treated for chemical poisoning.  He died on December 8, 2008 without ever regaining consciousness.  An autopsy attributed Wiseheart’s death to “complications of hydrogen sulfide toxicity.”

 

Wiseheart’s widow, Jean (the widow), filed an action for workers’ compensation benefits.  At trial, she claimed that Wiseheart died of hydrogen-sulfide poisoning.  The widow alleged that the particular bag used in the mixing process on the date of the incident contained 50 times as much sulfur as that which was generally used.  It was the widow’s position that the exhaust system of the T-3 reactor could become overwhelmed and emit hydrogen sulfate into the plant during the mixing process, especially if the P trap runs low or out of water, which Mills testified happened at least three times on December 7, 2008, before Wiseheart was found unconscious.  The widow also introduced evidence at trial that indicated Mills complained to the emergency room personnel atHuntsvilleHospitalof a headache.  Langford complained of a burning sensation in his throat as well as a headache, both of which could have been due to adverse reactions to exposure tohydrogen sulfide.

 

At trial, the court admitted into evidence, over the employer’s objection, the results from aPennsylvanialaboratory indicating that Wiseheart had significantly elevated levels of thiosulfate in his urine following the incident.

 

At trial, the defense called Dr. David J. Hewitt, an occupational-medicine physician, as an expert witness.  Dr. Hewitt explained that Wiseheart’s physical findings were consistent with any number of causes of death other than the chemical exposure.  Dr. Hewitt ruled out prolonged exposure to high levels of hydrogen sulfide since humans could not smell hydrogen sulfide at significantly elevated levels.  Dr. Hewitt attributed Wiseheart’s death to sudden cardiac arrest, to which Wiseheart was susceptible due to multiple pre-existing conditions.

 

The trial court determined that Wiseheart sustained an accidental exposure to hydrogen sulfate gas which “caused or contributed to his death.”  The court awarded death benefits and funeral expenses to the widow, Jean Wiseheart.  The employer appealed.

 

One of the issues ATI raised on appeal was that the trial court erred in finding Wiseheart’s death was caused or contributed by lethal exposure to hydrogen-sulfide gas.  In affirming the decision of the trial court, the Court of Appeals stated that it was undisputed that Wiseheart was exposed to hydrogen sulfide that leaked from the T-3 reactor.  In addition, the medical examiner that performed the autopsy, Dr. Valerie Green, and Dr. Hewitt agreed that Wiseheart exhibited physical findings consistent with death due to exposure to hydrogen sulfate.  The Court of Appeals held that the trial court reasonably could have determined that the physical findings resulted from chemical overexposure, especially in light of the evidence indicating that, from the time Wiseheart was discovered unconscious, the employer and medical personnel atHuntsvilleHospital all treated the case as involving an accidental chemical exposure.  The trial court also pointed to evidence indicating that Wiseheart was not ill nor did he exhibit any signs of discomfort in the day and hour leading up to his exposure.  Wiseheart was fully functioning just minutes before he was found unconscious near the T-3 reactor.

 

The Court of Appeals felt that substantial evidence existed to support the findings of the trial court that Wiseheart’s death was caused or contributed by hydrogen sulfide poisoning.

 

 

 

IV.       COMPENSABILITY; SUBSTANTIAL EVIDENCE

 

West Fraser, Inc., v. Windell Caldwell

Lee County (January 13, 2012)

 

The Alabama Court of Civil Appeals recently held that an employee did not present substantial evidence regarding an injury to his back and remanded the case back to the trial court to enter a judgment denying the employee’s claim for workers’ compensation benefits.

 

The plaintiff, Windell Caldwell, worked for the employer for over 20 years.

 

On December 17, 2009,Caldwellwas assigned to change the “knives” in a mulching machine.  While he was doing this,Caldwellclaimed that he felt a “pinch” in his back on three different occasions.  Conflicting evidence was presented as to whetherCaldwellactually had to retrieve the “knives” to change in the mulching machine or simply “flip” them.

 

Caldwellsought out his supervisor, Bobby Hill to report the accident.  However, Hill testified that, althoughCaldwellhad informed on December 17, 2009 that he was going to the doctor because his back “had been bothering him,”Caldwellhad not, at that time, informed Hill that his injury was work related.

 

Caldwell’s wife took him to Auburn Urgent Care on December 17, 2009.  According to the records from Auburn Urgent Care, the employee complained chiefly of back pain radiating down his right leg for one week and his pain was “aggravated by movement no in[jury].” Caldwelldenied making these statements.  A co-worker named McCants testified thatCaldwellhad complained about his back for “way more” than five years but thatCaldwellnever said he had injured his back at work.

 

On December 19, 2009,Caldwellwent to the emergency room atEastAlabamaMedicalCenterdue to increased back pain.  Records from that visit indicated thatCaldwellcomplained of low-back pain radiating down his right leg at a level of intensity of “3.”  The records also indicated thatCaldwell“denied injury.”

 

Caldwellbegan treatment with Dr. David Scott, an orthopedic surgeon.  Initially, Dr. Scott felt thatCaldwell’s injuries were consistent with the lifting incident that he had experienced at work.  However, when Dr. Scott was shown the medical records from Auburn Urgent Care and East Alabama Medical Center, which indicated there had been no injury, Dr. Scott testified that it appeared Caldwell had not been truthful and that, based on the discrepancies in the medical records, he could not say with any medical certainty that Caldwell had suffered a work-related injury.

 

In consideringCaldwell’s claims for workers’ compensation benefits, the trial court consideredCaldwell’s long work history the most valuable piece of evidence to support his claim for workers’ compensation benefits.  The court also found that Caldwell and his wife were credible witnesses.  The court determined thatCaldwellsuffered a compensable injury and ordered that medical and temporary total disability benefits be provided toCaldwell.  The employer appealed.

 

The Alabama Court of Civil Appeals reversed the decision of the trial court.  In doing so the court noted that in this case, the trial court received two competing and conflicting versions of events.  The appeals court felt that the circumstances strongly suggested that Caldwell originally treated his injury as purely personal in nature.  The appeals court also based its decision to reverse the trial court on the fact that Dr. Scott withdrew his testimony regarding the compensability of Caldwell’s injuries based upon his review of the December 17th and 19th medical records.  The Court of Appeals went on to state:

 

“However, we find it equally, if not more, compelling in this case that, during the relatively brief period before the first recorded report of a work connection, the employee twice denied any recent injury as the source of his back problems, according to his medical records.”

 

The Court of Appeals felt that Caldwell and his wife failed to offer any plausible explanation as to why the medical records from two independent facilities on two separate days following the alleged work-related injury confirmed the employer’s version of events in contradicting employee’s claim.

 

The Court of Appeals held that the evidence did not amount to “substantial evidence” to support the determination of the trial court.  The Court of Appeals remanded the case back to the trial court to vacate its judgment and enter a new judgment denying the employee’s claim for workers’ compensation benefits.

 

I hope you have found the above summary helpful and informative. If you have any questions or would like copies of the cases referenced in this letter, please feel free to give me a call.

 

For a copy of this and other publications regarding recently released cases of interest in the State of Alabama, please feel free to visit our website at www.robertsasscociates.net/publications.  If you would like to receive these updates via email, please send an email to sroberts@robertsassociates.net.