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 firstname.lastname@example.org.