DeShazo Crane Company, LLC v. James L. Harris:

On September 18, 2009, the Alabama Court of Civil Appeals released this opinion wherein it affirmed the trial court’s finding of permanent and total disability. At trial, the employee presented evidence that he worked for the employer (the second time) from 2002 until 2004. He testified that he began to experience eye problems in late 2002. Both the employee and his lover testified that they could recall certain times when the employee would come home from work and his eyes felt like they were burning. On those occasions, the employee recalled accidental exposure to UV radiation while at work. The undisputed evidence was that he did not report the exposure and the employer had no record of the exposure.

A retina surgeon, Dr. Milton White, diagnosed the employee with choroidal neovascularization, also called choroidal neovascular membrane ("CNVM"). As explained by Dr. White, CNVM is a condition in which abnormal blood vessels grow in the choroid (a layer of tissue behind the retina). These blood vessels leak blood and clear fluid into the retina causing visions problems and eventual blindness. In this case, the employee was rendered legally blind and thus totally disabled.

Interestingly, the evidence revealed that there are many causes of CNVM. Although unprotected exposure to UV radiation while welding was noted to be a possible cause, the most common explanation provided by doctors for CNVM was "idiopathic" where the cause cannot be determined. At trial, Dr. White testified that the cause of the employee’s CNVM was idiopathic. In fact, he had previously submitted a written opinion to the insurer and employer that the employee’s CNVM was not job related. As Dr. White explained, to be able to diagnose welding as the cause, he would need to be able to find other scarring in the retina. In the employee’s case, no other scarring was found. In fact, but for the employee working as a welder, Dr. White said he would be 100% certain that the cause was idiopathic. Under cross examination, Dr. White conceded only that welding was still a "possible" cause.

At trial, it was the employee’s burden to prove by clear and convincing evidence both legal and medical causation. Therefore the employee had to prove legal causation by showing that the employee’s job exposed him to a materially greater risk of developing CNVM than people ordinarily encounter. The judge determined that this was proven by evidence that the welders wore protective hoods and used protective screens. The employee next had to prove medical causation by showing that said exposure was a contributing cause of the CNVM. The judge determined that the time line of events, the risks of the job, and the fact that Dr. White could not rule out welding as a cause, all taken together proved by clear and convincing evidence that the CNVM was job related.

In affirming the trial court’s ruling, the Court of Civil Appeals noted that they could not re-weigh the evidence. They could only make sure that the trial court was presented with evidence of such weight and quality that, using fair-minded and impartial judgment, the court reasonably could have reached a firm conviction as to causation.

On July 14, 2009, the National Conference of Insurance Legislators (NCOIL) met in Philadelphia, Pennsylvania for its 2009 NCOIL Summer Meeting. At the meeting, members of the Workers' Compensation Insurance Committee engaged in serious discussion and debate concerning the Employee Misclassification Workers' Compensation Coverage Model Act. Representative Charles Curtiss (TN)-who co-sponsored the model for discussion purposes-at the NCOIL Summer Meeting, said:

In addition, co-sponsor Senator Ralph Hudgens (GA) said:

The draft model-based on Florida and Wisconsin statutes-targets transparency, disclosure, and accountability in workers' compensation insurance. It would set up a strict nine-point test to clearly define an independent contractor and mandate workers' compensation coverage in the construction industry, with certain exceptions. It would create clear procedures for insurer application, disclosure, and auditing and provide civil and criminal penalties for employee misclassification and insurance fraud. It also would establish strict enforcement authority including, among other items, power to temporarily shut down job sites when employers don't comply.

The Subcommittee deferred consideration of the model and will review all comments and produce a revised discussion draft. The Subcommittee will also hold a series of conference calls to advance the model for consideration at the NCOIL Annual Meeting to be held from November 19 through 22 in New Orleans, Louisiana.

The Indiana Court of Appeals has ruled that an employer must pay for weight-loss surgery for an obese worker to ensure the success of another operation for a back injury he suffered at work. According to the plaintiff’s attorney in that case, courts in Ohio, California, Oregon, Florida and South Dakota have reached similar decisions. The most recent was in Oregon where the Supreme Court ruled that workers' compensation insurance was responsible for gastric bypass surgery to ensure that a man's knee replacement surgery was effective.

Goodyear Tire and Rubber Company v. Bobby Long:

On September 4, 2009, the Alabama Court of Civil Appeals released this opinion concerning the issue of notice. At trial, the plaintiff testified that he told his supervisor that "his knee was bothering him again" and asked that he be allowed to leave and go to the doctor. The trial court determined that proper notice was given. On appeal, the employer argued that the plaintiff’s general statement concerning a knee injury did not amount to adequate notice of a work injury. The Court of Appeals agreed that the statement made by the plaintiff, taken alone, did not constitute proper notice. However it affirmed the trial court because the plaintiff provided enough information to the staff at the company infirmary to put the employer on "inquiry notice." In other words, the employer had at least some information that his condition was related to his employment thus placing an affirmative duty on the employer to investigate the incident further.

Wehadkee Yarn Mills v. Deborah Harris:

On September 4, 2009, the Alabama Court of Civil Appeals released this opinion wherein it reversed and remanded a permanent and total award with instructions. At trial, the evidence revealed that the plaintiff had a significant thumb injury. The plaintiff testified that she was in a considerable amount of debilitating pain. Her vocational expert testified that she was 100% disabled. The trial judge ruled that the plaintiff was permanently and totally disabled. On appeal, the employer argued that the thumb injury should not have been removed from the schedule because there was no evidence that the thumb injury extended to other parts of the body and permanently affected their efficiency. The Court of Appeals agreed. The Court also acknowledged that it is possible for an injury to be removed from the schedule where the plaintiff’s pain is considered to be "virtually totally physically disabling." Since the trial court did not specifically address whether or not the plaintiff’s complaints of pain rose to this level, the Court remanded the matter with instructions that the judge make such a finding.