Alabama Workers' Comp Blawg

  • 28
  • Jun
  • 2011

New Evidence May Be Introduced to Determine AWW on Remand from Appellate Court

This is an update on the matter of G.A. West & Co. v. Ricky McGhee which we discussed previously here and here.

Previously, the Court of Civil Appeals reversed and remanded the trial court’s judgment awarding the employee permanent-total-disability benefits as the trial court incorrectly determined the employee’s average weekly wage. On remand, the employee sought to conduct discovery to appropriately determine his AWW.  The employer contended that the trial court should determine the AWW solely on the previously introduced evidence and moved for a protective order. The trial court denied the employer’s motion and ordered discovery to take place. The employer then petitioned the Alabama Court of Civil Appeals for a writ of mandamus to direct the trial court to vacate its order.
 
The issue before the Court was whether the trial court may receive additional evidence on remand to determine the employee’s AWW.
 
The Court held that it was necessary for the trial court to receive additional evidence to appropriately determine the employee’s AWW. While the employee has the burden to appropriately present evidence to the trial court to determine the AWW, on remand, an appellate court may permit a trial court to take additional evidence into consideration. The Court held that it was necessary in order to determine an accurate calculation of the AWW, which is essential to a fair award of workers’ compensation. 

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