On April 20, 2012, the Alabama Court of Civil Appeals released its decision in the case of Ex parte Advantage Resourcing, Inc., in which it addressed both legal and medical causation. Hennon Hollinghead was allegedly injured on January 21, 2010, when he fell on a walkway between the parking lot and the shop where he regularly performed his work duties. The undisputed evidence presented at trial indicated that Hollinghead had begun walking from his car into the shop, turned around to get his two-way radio which he had left in his car, and then returned down the walkway back toward the shop until he slipped on a PVC pipe. Hollinghead sued Advantage, and the trial Court found in favor of Hollinghead. Advantage appealed, arguing that the trial Court erred in finding the alleged accident compensable, and that the Court erred in finding that the accident caused the injuries.

The Court of Appeals held that there was substantial evidence from which the trial Court could find a causal connection between the work and the injury. The appellate court cited Ex parte Byrom, 895 So.2d 942 (Ala., 2004), stating that in order to recover, a claimant must ‘establish a definite causal connection between the work and the injury such that a rational mind is able to trace the resultant personal injury to a proximate cause set in motion by the employment, and not by some other agency.’ The Court noted that the walkway was used by other employees, and the two-way radio was a "required tool of Hollinghead’s work." The Court further pointed to Benoit Coal Mining Co. v. Moore, 215 Ala. 220, 222-23, 109 So. 878, 880 (1926), which held ‘the movement of the employee in entering, at the appropriate time, the employer’s premises to discharge his function and his preparation to begin....his actual service are deemed naturally related and incidental acts in the course of the employment.’

Additionally, Advantage argued that the evidence presented at trial, namely the deposition testimony of three doctors and the live testimony of Hollinghead, was insufficient to establish medical causation. In support of this argument, Advantage presented evidence that Hollinghead had suffered a neck injury several years before the alleged accident, as well as medical records indicating that Hollinghead’s pain was arthritic in nature. Quoting Ex parte McInish, 47 So. 3d 767, 779 (Ala. 2008), the Court held that ‘it is the overall substance and effect of the whole of evidence, when viewed in the full context of all the lay and expert evidence, and not in the witness’s use of any magical words or phrases, that the causation test finds its application." Additionally, the appellate Court noted that in order to establish medical causation, a claimant need not prove that the work-accident is the sole cause or even the dominant cause of the injury, but that it is sufficient to establish that it was a contributing cause. Based on this, the Court of Appeals affirmed the trial Court’s ruling.

On April 20, 2012, the Alabama Court of Civil Appeals released its decision in the case of Mobile Airport Authority v. Robert Etheredge affirming the trial court’s permanent and total disability award. The employee had suffered a scheduled injury to his foot on March 31, 2008. The foot injury resulted in a dual electrode intraspinal neurostimulator being implanted. The employee was then returned to work in January of 2007. The employer did not dispute the compensability of the foot injury.

It was further alleged that after returning to work in January of 2007, an altered gait as a result of the foot injury, and bouncing created by the use of a tractor to mow the grass for the employer resulted in the aggravation of a pre-existing degenerative low back condition. The employee also alleged that in December of 2007, while working through the pain in his back and foot, he was operating the tractor and ran over a hole causing him to experience searing pain in his low back. It was determined by the authorized treating physician, who implanted the stimulator, that the jolt from this incident caused the stimulator leads to migrate out of the epidural space preventing it from providing any pain control. The stimulator was reimplanted and the employee continued various forms of treatment but never returned to work. The authorized treating physician opined that the altered gait and traumatic jolt of the 2007 tractor accident combined to aggravate or accelerate the pre-existing degenerative disc disease. An IME was done and the opinion was given that the degenerative disc disease was natural wear and tear and neither the implantation nor the dislodging of the stimulator could have aggravated the degenerative condition. The IME doctor did agree that the 2007 tractor jolt could have aggravated the pre-existing condition.

On August 12, 2009, the employee filed a complaint seeking benefits for a September 2007 foot injury. On March 19, 2010, the employee amended the complaint asserting that the foot injury occurred on March 31, 2006 and after which he suffered an injury to his back in the latter part of 2007 or early 2008 that aggravated his preexisting degenerative disc disease. The employer answered and acknowledged the March 31, 2006 foot injury but denied notice of the second alleged occurrence causing the aggravation of the pre-existing disc disease.

The trial court ruled that the employee suffered a compensable foot injury that resulted in an altered gait and contributed to the low-back pain. The trial court further noted that the employee had a second work-related injury to his low back in December of 2007, of which the employer received notice. The trial court ruled that the employee’s pre-existing degenerative disc disease in his low back was aggravated or accelerated by the combination of the altered gait, created by the foot injury, and the traumatic jolt in December of 2007.

On appeal the employer asserted the following issues: 1. The back injury was barred by the applicable statute of limitations, 2. The finding that the employer had notice of the 2007 tractor accident was not supported by substantial evidence and 3. The back injury was a cumulative stress injury and compensable only if proven by clear and convincing evidence that it arose out of and in the course of the employment.

1. Statute of Limitations

The employer argued that the December 2007 back injury was a separate injury and did not relate back to the original complaint. Therefore, when it was asserted on March 19, 2010 for the first time the statute of limitations had run. The trial court ruled that the back injury resulted from not only the 2007 incident but also the altered gait created by the foot injury. Due to the altered gait and resulting back injury being the natural consequence of the foot injury, the back injury was not barred even though the December 2007 incident occurred more than 2 years before the claim was asserted.

The Court of Appeals ruled that while the claim seeking compensation of the 2007 incident was not timely asserted, the 2006 foot injury was also a contributing cause of the back injury. Due to evidence presented at trial establishing that the back injury was also caused by the foot injury, i.e. the altered gait, the back injury claim was not barred. The Court of Civil Appeals stated that it was immaterial that the authorized treating physician stated that had it not been for the 2007 tractor incident the rate of degenerative change would not have been the same because the altered gait only had to contribute to the aggravation or acceleration.

2. Notice

The Court of Civil Appeals agreed with the trial court on two issues dealing with notice in this matter:

(1) That by telling the workers’ compensation adjustor handling the foot injury about the 2007 tractor incident and then the surgery to reimplant the stimulator being approved as a result of the incident, there was sufficient evidence to support a finding that the employer’s representative had actual knowledge of the 2007 work related tractor incident that resulted in injury.

(2) That Alabama law supported the trial court’s finding that notice of the tractor incident was not required because the employer had notice of the foot injury and evidence supported that the altered gait, resulting from the foot injury, contributed to the aggravation of the pre-existing degenerative disc disease.

3. Burden of Proof for Cumulative Stress Injuries

The employer argued that because the employee alleged the back injury was the result of an altered gait, it was a cumulative stress disorder and subject to the clear and convincing evidence standard, which was not met. The Court of Civil Appeals agreed with this argument but stated that the burden was met. The Court of Civil Appeals pointed out that 3 witnesses testified that the employee did not have a limp (two treating physicians and the FCE evaluator) while 6 different sources of evidence supported that the employee did have a limp (the employee, 1 treating physician’s testimony, 2 treating physicians’ medical records, the employee’s supervisor and the trial court’s observations at trial). The Court of Civil Appeals stated that the trial court could have resolved the conflict by determining that the witnesses who did not see the limp only saw the plaintiff early in the day or while seated, when the limp was not present or was less pronounced.

In regards to the burden of proof and medical causation, the Court of Civil Appeals stated there was no conflict that the altered gait had developed as a natural consequence of the foot injury and was a contributing cause of the disc derangements. As a result, the Court of Civil Appeals opined that the finding was based upon evidence that would produce a firm conviction in the mind of the trial court as to each element of the claim and a high probability that the conclusion is correct, as required with the clear and convincing evidence standard.

On April 13, 2012, the Alabama Court of Civil Appeals released its opinion in Maxim Healthcare Services, Inc. v. Freeman, in which the Court addressed an employee’s burden of proof as to medical causation of an alleged injury. Freeman worked as a LPN for Maxim Healthcare Services, Inc., a nursing referral agency. In December 2008, she was allegedly lifting a patient from a toilet to place her in a wheelchair when the wheelchair moved, causing Freeman to over-extend herself. As a result, Freeman complained of a burning sensation in her lower back that extended into her hips and legs. Freeman filed a lawsuit against Maxim for workers’ compensation benefits. The parties stipulated that Freeman suffered an injury to her left hip and leg but Maxim denied that Freeman’s alleged back problems were the result of any compensable accident. At trial, the Court received the testimony of Freeman’s authorized treating physician and her own personal primary care physician. The authorized treating physician testified that some of Freeman’s back pain was pre-existing but some of it was related to the accident. However, the authorized treating physician further testified that she had ordered an FCE for Freeman and that the FCE showed that Freeman could return to work without restrictions. Freeman’s personal physician testified that in his opinion, the December 2008 accident was the source and cause of Freeman’s back pain. The primary care doctor admitted that he lacked the qualifications to disagree with the authorized treating physician’s opinions, and stated that he "deferred to her opinions and conclusions", as well as the results of the FCE. The trial Court found that Freeman established both legal and medical causation, and Maxim appealed, arguing that the testimony of Freeman and her primary care doctor was insufficient to establish medical causation.

In its appeal, Maxim relied on the holdings of three particular cases: Ex parte Southern Energy Homes, Inc., 873 So. 2d 1116 (Ala. Civ. App. 2003); Jackson Landscaping, Inc. v. Hooks, 844 So. 2d 1267 (Ala. Civ. App. 2002); and Valtex, Inc. v. Brown, 897 So. 2d 332 (Ala. Civ. App. 2004).

In its decision in Freeman, the Court noted that although the Court in Ex parte Southern Energy Homes had previously found that a worker’s testimony standing alone did not constitute substantial evidence of medical causation, the facts of Freeman were different in that the testimony of Freeman’s primary care physician established a causal link between the December 2008 accident and Freeman’s complaints of back pain. The Court also differentiated the facts in Freeman from those in Hooks by stating that in Hooks, one of the doctors testified that the workers’ back injury was not related to his on the job accident and the other doctor testified that there was a possibility that there could have been a causal relationship between the accident and the injury. In contrast, one of Freeman’s physicians testified that he could state within a reasonable degree of medical certainty that Freeman’s back pain was the result of the accident. Additionally, the Court noted that, in Hooks, the employee did not complain of back pain until almost sixteen months after the alleged accident, whereas Freeman began complaining of back pain immediately following her accident. Finally, the Court in Freeman differentiated this case from the facts of Brown, in that Brown was a non-accidental injury case where the worker was required to produce clear and convincing evidence of medical causation. The Court in Freeman held that since Freeman had established that an accident occurred, she only had to establish medical causation by a preponderance of the evidence, and that her primary care physician’s testimony, along with her own testimony, was sufficient to meet that burden of proof. Based on these findings, the Court of Appeals affirmed the trial Court’s judgment.

The Alabama Court of Civil Appeals recently released its opinion in the case of Nuss Lumber Co., Inc. v. The Estate of Andy Monghan, in which the Court addressed the employer’s right to recoup workers’ compensation benefits paid when the employee recovers from third parties. In January 2002, Monghan was injured in an automobile accident while working for Nuss Lumber. Nuss ultimately paid Monghan a substantial amount of workers’ compensation benefits and incurred substantial expenses for medical treatment. Monghan sued Nuss Lumber and also named several third parties who he claimed caused the automobile accident as defendants in the action. Nuss then filed a counter-claim asserting its rights under §25-5-11 (a) of The Alabama Workers’ Compensation Act, seeking repayment of the benefits it had paid on account of Monghan, which totaled more than $1.3 million. In October 2005, Monghan entered into a settlement with the third parties, whereby more than $500,000 was paid in a lump sum, and whereby Monghan would receive nearly $30,000 per month over the next several years from an annuity. While the parties agreed on the amount that Nuss was entitled to recover from the third party settlement funds, there was a disagreement as to the matter in which Nuss’ interest would be satisfied. The Trial Court initially ruled that Nuss was entitled to a lump sum payment of approximately $350,000 and that the remaining balance of more than $1 million would be paid in monthly installments of approximately $15,000 per month. However, Nuss contended that it was entitled to recover the full amount of its lien before the estate could collect any funds from the settlement. The Court of Civil Appeals agreed and stated that Nuss was entitled to recover all of the currently available funds and that it also had priority as to funds that become available in the future through the annuity payments. The Court noted that §25-5-11 (a) of The Alabama Workers’ Compensation Act works to relieve an employer of the financial burden of a work related injury when there is a culpable third party to shift the burden to, and that it also prevents double recovery for the same injury by the employee. As such, the Court held that denying immediate recovery to Nuss would be a contravention of §25-5-11 (a). However, the Court ruled that Nuss could not force Monghan’s estate to liquidate the annuity so that Nuss could make an immediate and full recovery.

On March 30, 2012, the Alabama Court of Civil Appeals released its decision in the case of McDaniel v. Helmerich & Payne International Drilling Co., In this case, the Appellate Court addressed whether an oil rig worker was a "traveling employee" for purposes of The Alabama Workers’ Compensation Act. Under what is generally known as the "coming and going rule", accidents which occur while a worker is traveling on a public road either going to or coming from work are deemed to have occurred outside of the course of the employee’s employment and are therefore not compensable under the Act. However, Alabama law has long recognized the "traveling employee" exception to this rule, which states that an accident occurring on the employer’s premises occurs in the course of employment, and the premises includes the entire area devoted by the employer to the industry with which the employee is associated.

The employee in McDaniel lived in Louisiana but had been assigned to work in Mobile County, Alabama, to move an oil rig from one drilling site to another. The employer offered McDaniel lodging at a crew trailer at the site where the rig would be moved. On the morning of January 10, 2008, McDaniel woke up in the crew trailer and began driving to the site where the rig was being disassembled. However, along his route, McDaniel was injured in car accident. It was undisputed that the employer did not provide McDaniel with a vehicle, per diem for food, mileage, gas reimbursement, a cellphone, or any other benefits common to traveling employees. As such, the employer argued that the traveling employee exception to the coming and going rule did not apply, and therefore, McDaniel’s accident was not compensable. The trial Court agreed, but McDaniel appealed, arguing that travel was an integral part of his job and was for the benefit of his employer. The Court of Appeals held that since McDaniel was required by his employer to drive from his home in Louisiana to report to the oil rig sites in Mobile County, he was "geographically limited by the necessity of being available for work on the employer’s job site" and therefore, "encountered special hazards on the road that could be avoided were travel not a necessary component of the employment."

The Court noted that the primary reason for the distinction between a commuter and a traveling employee is that the travel undertaken by a traveling employee provides substantial benefit to both the employee and the employer. The Court further noted that in order for the traveling employee exception to apply to the coming and going rule, the activity giving rise to the injury must confer some benefit upon the employer, although the benefit need not be pecuniary, but instead may be as intangible as a well-fed and well-rested employee. Although the evidence at trial indicated that McDaniel was not required to stay in the crew trailer the night before the accident, the fact that the trailer was rented and provided by the employer at the job site indicated that the employer was deriving a substantial benefit from McDaniel staying there and then traveling to another job site. The Court further noted that there was no evidence that McDaniel was performing a special or personal errand or mission at the time of the accident, and was therefore carrying on his employer’s business at the time of the wreck. Based on these findings the Court of Appeals reversed the Trial Court’s judgment and remanded the case to the Trial Court to enter a judgment finding that McDaniel’s accident arose out of and in the course of his employment.