Black Creek, Inc. v. Ray Keith Wood

On July 31, 2009, the Court of Appeals reversed the trial court’s ruling in favor of the plaintiff’s retaliatory discharge claim based on his filing a workers’ compensation claim. The Court of Appeals held that the defendant/employer should have received a Judgment as a Matter of Law.

The Court of Appeals held that the employee did not present substantial evidence that the employer’s basis for the termination was pretextual or false. The employer presented evidence that the employees use of foul language on the job and leaving work with out permission lead to the employee’s termination. The employee argued that "other employees did it", referencing the use of foul language, and they were not terminated. The Court of Appeals stated that this was not enough to prove the employer applied its policies in a discriminatory manner. This was further supported by several supervisors testifying that foul language was not acceptable.

Therefore, the employer established that the plaintiff’s workers’ compensation claim was not the sole basis for his termination.

SouthernCare, Inc. v. Margaret Cowart:

On July 31, 2009, the Alabama Court of Civil Appeals released this opinion in which it denied an appeal because it was an appeal of a non-final judgment. Specifically, the employer appealed an interim judgment determining compensability and ordering the employer to pay for medical treatment. Interestingly, Justice Thomas and Justice Moore disagreed with the majority opinion. Justice Thomas pointed out (with Justice Moore concurring) that Alabama Code § 25-5-81(e) provides that an aggrieved party may appeal from "an order or judgment." Since the word "final" was omitted from the Code Section, it thus provides special appeal rights in the context of a workers’ compensation matter. This case will no doubt continue to the Alabama Supreme Court for further review.

Willie Jones v. Ray Ruth:

On July 24, 2009, the Court of Civil Appeals reversed the Trial Court’s ruling that a settlement agreement barred the plaintiff’s claims against a co-employee for willful conduct pursuant to §25-5-11 (c)(1) & (2). The Court of Appeals held that the release included claims arising under the Alabama Workers’ Compensation Act but claims made pursuant to §25-5-11 (c)(1) & (2) are tort claims and do not "arise under" the Act. The Court of Appeals stated these claims are premised on different standards of proof and different measures of damages than claims for workers’ compensation benefits. In addition, the Court of Appeals held that a release of "employment status related claims" includes claims for damages arising out of an alteration of, or injury to, the employee’s employment status. This does not include damages arising from personal injury as claims pursuant to §25-5-11 (c) (1) & (2) do.

Practice Pointer:

When preparing a settlement and release, if you wish to exclude claims the employee may have arising out of §25-5-11 (b) & (c) specifically include language referencing the release of any claim the plaintiff/claimant may have pursuant to §25-5-11 (b) & (c).

Do you have any claims where the claimant is asserting that she is permanently and totally disabled but she has refused a recommended surgical procedure? If so, then you may be able to use a recently decided case to disqualify her from a permanent and total award.

It is well settled that, for purposes of workers’ compensation in Alabama, the employer cannot force a claimant to undergo surgery. Further, if the claimant’s refusal of surgery is deemed reasonable, then her compensation benefits may still be due. See Baptist Memorial Hosp. v. Gaylor, 646 So. 2d 93 (Ala. Civ. App. 1994). However, that very same refusal may now disqualify a claimant from a permanent and total award. In the recent case of Ex parte Saad’s Healthcare Services, Inc., — So.2d —, 2009 WL 886507 (Ala. 2008), a claimant sued her employer for workers' compensation benefits based on physical and psychological injuries she sustained after being stabbed while working. At trial, the employer argued that the claimant’s refusal to submit to psychological treatment made her ineligible for permanent and total benefits. In support of its position, the employer relied on the following exclusion contained in the statutory definition of permanent total disability:  

The Alabama Supreme Court ultimately determined that the psychological and psychiatric treatment that the claimant refused after reaching maximum medical improvement was not "physical or vocational rehabilitation" within the exclusion found in the definition of "permanently and totally disabled." In arriving at this decision, however, the Court noted that the Alabama Workers' Compensation Act does not define the terms "vocational rehabilitation" or "physical rehabilitation." Therefore, the Court undertook to determine the threshold matter of defining the words "physical [and] vocational rehabilitation" as used in the exclusion. The Court first declared that it must consider the "natural, plain, ordinary, and commonly understood meaning" of "vocational rehabilitation" and "physical rehabilitation," respectively, as well as the context of those terms within the Alabama Workers' Compensation Act as a whole. In doing so, it noted that:  

Since the psychological treatment refused by the claimant was not offered for the purpose of restoring her physical function, the Court did not consider that treatment "physical" within the meaning of the exclusion found in Ala. Code §25-5-57(a)(4)d.

However, application of the above definition to a recommended surgical procedure provides a much different result. Clearly, a recommended back surgery pertains to the body. Further, back surgery is a service provided for the purpose of restoring function to a disabled person’s body. As such, it stands to reason that, if a claimant refuses to undergo a surgery, then she is refusing physical rehabilitation for the purpose of restoring function to her body. Pursuant to Ala. Code §25-5-57(a)(4)d. and the new definitions provided in Ex parte SAAD’s Healthcare Services, the claimant would therefore be excluded from being deemed permanently and totally disabled.

(Note: This opinion was withdrawn and a new opinion was released on January 29, 2010.  See blawg summary dated January 30, 2010)

G.A. West & Company v. Ricky McGhee:

On July 17, 2009, the Alabama Court of Civil Appeals released this opinion in which it affirmed the trial court’s finding of permanent and total disability. It also affirmed the trial court’s method for calculating AWW where the plaintiff was injured on his second day of employment. Specifically, the Court held that Ala. Code §25-5-57(b) did not require the use the third method (using the wages of a similarly situated employee) for calculating the plaintiff’s average weekly wage if the result was not fair and just. At trial, the employer presented a wage sheet that indicated (in handwriting at the top) that it was for an unidentified "ironworker," the same position as the plaintiff. The plaintiff rebutted this evidence with the testimony of a co-worker with the same job description who stated that the job required 10 hours per day for 5 days a week for the first month and then 12 hours a day for 7 days a week for the last month. In resolving the contradictory evidence, it was determined that the trial judge may consider all the evidence in arriving at an average weekly wage that is fair and just in such situations where doing otherwise would have an unfair and unjust result.

The Court of Appeals also found that when determining if an individual is permanently and totally disabled the words "gainful employment" mean employment similar in remuneration to that employment held prior to the injury. The Court further held that it was implicit that the employment must be suitable (i.e. compatible to pre-injury occupation, age, education, and aptitude). The trial court heard conflicting evidence concerning the plaintiff’s ability to return to work. The Court of Appeals found that, even where records reveal evidence that the plaintiff was less than permanently and totally disabled, a trial court’s findings that are based on conflicting evidence are conclusive if there is substantial evidence to support the findings.

Dollar General Corporation v. Patricia Nelson:

On July 2, 2009, the Alabama Court of Civil Appeals released this opinion in which it reversed the trial court’s finding that the employee’s stroke was caused by her employment. At trial, the evidence revealed that the employee worked between 70 and 80 hours per week. On the day of her stroke, she came in early and scheduled other employees to do the same. They needed to be there early to load a truck. When the truck driver called and said he had been delayed due to being pulled over by the police, the employee testified that she had reached her stress limit. It was at that point that she began to experience the symptoms of a stroke. The evidence also revealed that the employee had high blood pressure, problems with family members, problems with relationships, and anxiety. In reversing the trial court, the Court of Civil Appeals noted that the employee failed to prove that she was exposed to a danger or risk materially in excess of that danger to which all persons are ordinarily exposed in their everyday lives. As such, she failed to prove legal causation.