West Fraser, Inc. v. Windell Caldwell, Sr.

On January 13, 2012, the Alabama Court of Civil Appeals released an opinion wherein it reversed a Trial Court’s finding of compensability. The matter was bifurcated at the trial court level and the issue of compensability was tried first. At trial, the employee testified that he hurt his back on December 17, 2009. Although he went to the doctor, the medical records did not indicate a workers’ compensation injury. Rather, the records indicated that the employee had been experiencing the problems for one week. The employee denied making that statement. The employee returned to a different doctor on December 19, 2009 and the records from that visit revealed that the employee denied an injury. The employee testified that he must have been misquoted. On December 21, 2009, the employee returned to the doctor for the third time and, this time, he referenced an injury date of December 21. The next day, the employer received a letter from the employee’s attorney which, according to the employer, was its first notice of an injury. Although his orthopedic surgeon initially opined that the plaintiff’s complaints were consistent with his work injury allegations, he backed off that testimony when confronted with the above mentioned medical records. In addition, the employer’s witnesses testified that the employee did not follow proper reporting procedures. In finding in favor of the employee, the Judge relied heavily on the employee’s exemplary work history.

In reversing the Trial Court opinion, the Court of Appeals relied on the fact that the employee repeatedly indicated to his doctors that his injury was not work related before changing his tune on the third visit. In a footnote, the Court indicated that it recognized the possibility that two separate medical providers on two different occasions could make the same error on two separate days. However, it further noted that the law in Alabama does not allow an employer to be held liable on a mere possibility.

Hale v. Hyundai Motor Manufacturing Alabama, LLC (hereinafter HMMA)

On January 6, 2012 the Alabama Court of Civil Appeals released an opinion on the issue of collateral estoppel in a retaliatory discharge case based on the employee allegedly being terminated due to his filing a workers’ compensation claim. The Trial Court granted summary judgment in favor of the HMMA and Hale appealed. On appeal Hale argued that HMMA is estopped from arguing the discharge was due to misconduct because the unemployment board’s decision determined that the employee had not committed misconduct. The Alabama Court of Civil Appeals disagreed with Hale and affirmed the Trial Court’s ruling.

Hale was injured on the job and suffered from carpal tunnel syndrome. He underwent two surgeries and was returned to work at light duty. Subsequent to being released to light duty Hale missed nine days and took one day of bereavement leave. HMMA corresponded with Hale on numerous occasions indicating that he needed to provide documentation related to the nine absences and bereavement leave or it would result in his termination. Hale never provided documentation as requested and even admitted to this despite providing explanations. He was subsequently terminated on March 13, 2009 for violating HMMA’s absentee policy and violating the serious misconduct policy, which included serious and/or excessive violations of HMMA’s attendance policy and intentional misrepresentation or falsification of information regarding employment or reports to HMMA. Violation of the serious misconduct policy placed an employee outside the normal corrective action plan.

Hale sought unemployment benefits and on appeal it was determined, for purposes of unemployment, that Hale had not committed misconduct as defined by the unemployment statute: deliberate, willful or wanton disregard of the employer’s interests or of standards of behavior which the employer has right to expect of its employees. In making the determination the hearing officer stated that Hale had compelling reasons for the acts which he was discharged for. Therefore, the violation was not misconduct such that unemployment should be denied.

On appeal Hale asserted that the Supreme Court’s decisions in Wal-Mart Stores, Inc. v. Hepp, 882 So. 2d 329 (Ala. 2003) and Wal-Mart Stores, Inc. v. Smitherman, 743 So. 2d 442 (Ala. 1999) were controlling. In both of theses cases, the Supreme Court found that the employee was collaterally estopped from arguing he or she was discharge for a reason other than misconduct in a retaliatory discharge claim when they were found to be disqualified from unemployment benefits due to misconduct connected with their work. As such, Hale asserted that the "reverse argument is also true" barring HMMA from arguing that Hale was discharged for a legitimate reason because that reason was determined not to be misconduct that would disqualify Hale from receiving unemployment benefits. The Alabama Court of Civil Appeals disagreed because the issues are not identical due to the posture of the parties.

The Court of Civil Appeals ruled that the unemployment hearing officer found that Hale did not commit misconduct for purposes of unemployment-compensation statue: deliberate, willful or wanton disregard of the employer’s interests or of standards of behavior which the employer has a right to expect from its employees. However, that does not mean that Hale was not discharged for a valid reason under HMMA policies, HMMA’s reasons for the discharge were not legitimate and that HMMA terminated Hale for the sole reason that Hale filed a workers’ compensation claim. In Hepp and Smitherman, the unemployment decision found that the employee committed misconduct so there is a compelling conclusion that the employer had a legitimate reason for the termination. However, the reverse is not true. Alabama is an at-will employment state, so HMMA can terminated for any reason (aside from terminating solely because a filed a worker’s compensation claim), even if that reason does not amount to misconduct as defined in the unemployment context. As a result, HMMA is not collaterally estopped from asserting that Hale was terminated because he violated HMMA policies.

White Tiger Graphics, Inc v. Paul Clemons

On January 13, 2012 the Alabama Court of Civil Appeals addressed a judicial estoppel issue involving an employee claiming he was permanently and totally disabled during the same period of time he was receiving unemployment benefits. The Trial Court found that employee was permanently and totally disabled despite receiving unemployment benefits during the same period. The Alabama Court of Civil Appeals affirmed.

For judicial estoppel to apply the following criteria must be met: 1) a parties later position must be inconsistent with its earlier position; 2) the party was successful in the prior proceeding so that acceptance of an inconsistent position later would create perception that the first or second court was misled; and 3) the party asserting the inconsistent position would derive an advantage or impose an unfair detriment on the opposing party of not estopped. Hamm v. Norfolk So. Ry. Co., 52 So. 2d 484, 494 (Ala. 2010). The purpose being to protect the integrity of the judicial process by preventing parties from deliberately changing positions to suit there needs according to the circumstances. Id.

In order to received unemployment benefits the employee must be physically and mentally able to perform work of a character which he is qualified to perform by past experience or training. Ala. Code § 25-4-77 (a)(3). In order to received a permanent and total disability award the injury or impairment must permanently and totally incapacitate the employee from working and being retrained for gainful employment. Dolgencorp, Inc. V. Hudson, 924 So. 2d 727, 734 (Ala. Civ. App. 2005). This does not mean the employee is helpless, only unable to perform his or her trade and unable to obtain other reasonably gainful employment. Id.

The plaintiff testified at his hearing for unemployment benefits, that he felt like he was able to work, had tried to find work he was qualified for and would give it his best shot. The employer asserted that if the employee takes the position that he is able to work in order to receive unemployment benefits, the employee can not, at the same time, claim he is unable to perform his normal trade.

The Alabama Court of Civil Appeals found that an employee so limited that he can not perform services other than those that are so limited in quality, dependability or quantity that a reasonably stable market does not exist, may be classified as totally disabled. According to the Court of Appeals, this criteria would not be inconsistent with the employee saying he is willing and able to perform work he is qualified to do and give it his best shot. Therefore, the employee would not be judicially estopped from claiming he was permanently and totally disabled during the same time period he was receiving unemployment benefits because there is not an inconsistency.

In a concurring opinion, Judge Terry Moore opined that the employee’s testimony did create somewhat of a contradiction. However, since the employee testified that he was willing and able to give it his best shot, it could not be said that judicial estoppel precluded a finding that he could not work despite his best efforts. In addition, Judge Moore pointed out that the Alabama Worker’s Compensation Act does not address whether or not the receipt of unemployment benefits would prevent a permanent and total disability award or workers’ compensation benefits in general.

On January 13, 2012, the Alabama Court of Civil Appeals released its decision in the case of Goodyear Tire & Rubber Company v. Brian Haygood wherein it upheld the trial court’s ruling that Haygood was permanently and totally disabled due to pain in his foot. Under the "exceedingly high standard" previously set out in the case of Norandal U.S.A., Inc. v. Graben, pain can be used as a basis for removing an otherwise scheduled injury from the schedule when it is totally or virtually totally disabling to the body as a whole. To qualify as an exception to the schedule, the pain must be such that it completely or almost completely prevents the employee from engaging in physical activities with the uninjured parts of his body.

Haygood allegedly injured his foot while working at Goodyear in 2009, and sought permanent and total disability benefits. One of Haygood’s doctors stated that Haygood had pain of partially neuropathic origin, a milder version of complex regional pain syndrome (CRPS). Another of Haygood’s doctors had assigned a medical impairment rating of 10% to Haygood’s right foot, which the doctor translated to a 7% impairment to the lower extremity and a 3% to Haygood’s body-as-a-whole. At trial, Haygood testified that, due to pain from the injury which he consistently rated as a 9 or 10 on a scale of 1 to 10, he could not walk without a cane, he often cried, and had to lie down up to 23 hours per day. Haygood also testified to his inability to sleep, stand, drive, shop, ride his motorcycle, and do other things that he stated were routine in most people’s daily lives. The trial Court found that Haygood struggled with pain even while at rest and, as such, his CRPS-like pain prevented him from engaging in physical activities with the uninjured parts of his body. Based on this finding, the Court of Appeals affirmed the trial court’s ruling that Haygood was permanently and totally disabled due to pain that was totally or virtually totally disabling.

On January 13, 2012, the Alabama Court of Civil Appeals published its ruling in the case of ATI Alldyne v. Wiseheart. Gary Wiseheart was a mechanic who worked at ATI’s metal extraction plant in Huntsville, Alabama. On December 7, 2008, Wiseheart was allegedly exposed to hydrogen sulfide gas and later died. Wiseheart’s widow brought suit against ATI for death benefits and funeral expenses under the Alabama Workers’ Compensation Act.

At the center of the controversy were laboratory test results that purportedly showed significantly elevated levels of thiosulfate in Wiseheart’s urine on the day of the incident. ATI objected to the admissibility of the lab test results on the grounds that no chain of custody had been established between the hospital where the urine sample was collected and the Pennsylvania lab where the sample was tested. ATI also objected to the deposition testimony of the medical examiner who based her opinion that Wiseheart had died as a result of exposure to the gas, in part, on the lab test results. The trial Court admitted both the lab test results and the deposition of the medical examiner, and found that Wiseheart suffered an accidental exposure to hydrogen sulfide gas which caused or contributed to his death. On appeal, ATI asserted that the trial Court erred in admitting the lab test results and the deposition of the medical examiner and that it also erred in finding that exposure to the gas caused or contributed to Wiseheart’s death.

The Court of Appeals noted that even without the disputed lab test results, substantial evidence existed to support the trial Court’s findings that Wiseheart was exposed to hydrogen sulfide gas and that the exposure caused or contributed to his death. The medical examiner testified that she had not based her conclusion, that Wiseheart had died from exposure to the gas, on the disputed lab test results alone. Both ATI’s and Wiseheart’s expert medical witnesses testified that Wiseheart exhibited physical findings consistent with exposure to the gas, although both experts also acknowledged that the same physical findings could result from death by other means. The Court also pointed to other circumstantial factors, such as the undisputed testimony that plant operators reported a rotten egg-like smell prior to finding Wiseheart unconscious and that Wiseheart felt fine only hours prior to being found lying on the floor of the plant. Additionally, ATI’s medical expert acknowledged that even if Wiseheart was not exposed to high enough levels of the gas to kill him, he may have been exposed to high enough levels to cause distressful physical symptoms that could cause cardiac arrest.

The Court acknowledged that ATI presented substantial evidence at trial indicating that Wiseheart did not die from hydrogen sulfide poisoning. However, since the trial Court’s findings were supported by substantial evidence, the Court of Appeals declined to reverse the trial Court’s judgment simply because it may have decided the facts differently than the trial Court.

On January 13, 2012, the Supreme Court of Alabama released its opinion in Ex parte Wright Brothers Construction Company, Inc., and GIBCO Construction, LLC. This case presented an interesting issue on proper venue.

On 2008, the employee, Roger Whited, was involved in an accident at a quarry in Jefferson County. The quarry was owned by Wright Brothers and GIBCO. In 2010, Whited filed a lawsuit in Walker County against both parties to recover damages for his injuries. Whited claimed that venue in Walker County was proper because he was a resident of Walker County and that Wright Brothers had an affiliate, Walker County Rock Products ("WCRP"), based in Walker County. Wright Brothers moved for a change of venue based on the argument that it was a separate entity from WCRP and supported that contention with evidence and affidavits of its corporate secretary. The trial court denied Wright Brothers’ motion. Wright Brothers appealed the trial court’s decision.

The Supreme Court agreed with Wright Brothers’ arguments. The Court held that even if Wright Brothers was affiliated with WCRP, WCRP was not named in the suit. Therefore venue could not be based on WCRP’s presence in Walker County.

On January 13, 2012, the Alabama Court of Appeals released its opinion in Ex Parte Billy Barnes Enterprises. In this case, a female truck driver was injured in Mississippi in January of 2006. Her injury was deemed compensable and she received medical treatment and TTD payments, off and on, until May of 2009. In January of 2007, the employee filed suit in Washington County which is where she lived at the time she was injured. The employer asserted that venue was improper and offered evidence that the employee had moved from Washington County to Tallapoosa County in November 2006. The trial judge denied the employer’s motion for transfer of venue and a petition for Writ of Mandamus was subsequently filed.

The employer’s petition was based on the argument that employee’s claim did not accrue until after she reached MMI and received her last TTD payment in May 2009 at which time she lived in Tallapoosa County. That argument was based on statutory language referring to the commencement of the controversy and the commencement of the 2-year statute of limitation, both of which occurred in May 2009.

The Court disagreed with the employer’s position. According to the Court, the claim began accruing at the time of the injury and, therefore, venue was proper in Washington County.

On June 9, 2011, Governor Robert Bentley signed into law the controversial Beason-Hammon Alabama Taxpayer and Citizen Protection Act. This new law has left Alabama workers’ compensation laws as they apply to illegal aliens in a state of limbo.  Portions of the law have been enjoined by the United States District Court for the Northern District of Alabama and the Eleventh Circuit but the remaining sections raise some interesting issues.

Section 27 of the Act prohibits a court from enforcing a contract between a party and an illegal alien if the non-alien party has: 1) direct or constructive knowledge that the alien was unlawfully present in the USA at the time the contract is entered into; and 2) the performance of the contract requires the alien to remain unlawfully present in the USA for more than 24 hours after the time the contract was entered into or performance could not be reasonably expected to occur without remaining in the USA for over 24 hours.  Alabama law has consistently held that settlement agreements are contracts and, as such, future settlement agreements between illegal workers and employers may be voided by Section 27.  There is previous authority in Alabama that indicates a party should have constructive knowledge than an alien is unlawful if he invokes the Fifth Amendment right against self-incrimination in regards to citizenship questions or admits to not having a social security number.  See Cokely v. Cokely, 469 So. 2d 635 (Ala. Civ. App. 1985); Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298 (11 Cir. 2009).  If a settlement agreement is subject to court approval and the approval will take more than 24 hours to receive, then the agreement would possibly fall under the second prong of Section 27.  It is unclear if Section 27 will ultimately be applied to invalidate settlement agreements under these conditions.

Additionally Sections 5 and 6 of the Act place restrictions on officers of the court from interfering with enforcement of the Act.  Due to the Act’s intended purpose of removing illegal aliens from the state, an attorney (as an officer of the court) could conceivably violate the Act by having an illegal alien appear at a deposition, trial, or mediation.  Similarly, judges (as officers of the court) could violate the Act by allowing an illegal alien to pursue claims in their courts. 

Although the new immigration law raises several new issues to be considered in the realm of workers’ compensation, the question of whether or not an illegal alien even has legal standing to pursue a workers’ compensation claim in Alabama remains unanswered.