G.UB.MK Constructors and Eric Leslie v. Darlene Garner, as administratrix of the estate of Wendell Garner, deceased:

On January 8, 2010, the Alabama Supreme Court released this opinion wherein it reversed a jury verdict in favor of the plaintiff based on the Special-Employment Doctrine. At trial, the evidence revealed that the individually named defendant ("Leslie") was hired by GUBMK for the sole purpose of being sent to TVA as "staff augmentation." Leslie worked exclusively on TVA property and, pursuant to a required "labor agreement," was subject to the direct supervision and control of TVA. Leslie used equipment that was owned and operated by TVA. Although paychecks were drawn from a GUBMK bank account, the amount was calculated from information provided by TVA. Workers’ compensation insurance was provided and paid for by TVA and TVA could direct Leslie’s dismissal. On the day of the accident, Leslie was driving a TVA truck and assisting the plaintiff who was an actual TVA employee. Leslie accidentally backed over the plaintiff with the truck causing the plaintiff’s death. As a result, the plaintiff’s estate sued GUBMK and Leslie for negligence. At trial, the jury returned a verdict in the amount of $525,000.00. The defendants appealed asserting that Leslie was a "special employee" of TVA on the day of the accident. As such, he was a co-employee of the plaintiff and could not be sued for negligence based on the exclusivity doctrine of the Alabama Workers’ Compensation Act.

The Court agreed with the defendants and reversed the jury verdict with instructions that judgment be entered in favor of the defendants. In support of its decision, the Court noted that the substantial and unrebutted evidence at trial was that an implied contract existed between Leslie and TVA, that Leslie was performing TVA’s work on the night in question, and that TVA had the right to control the details of Leslie’s work.

Christopher Hatch v. NTW Incorporated, d/b/a/ National Tire and Battery Company:

On June 19, 2009, the Alabama Court of Civil Appeals affirmed the trial court’s Order granting the Employer’s Summary Judgment Motion as to the retaliatory discharge portion in the workers’ compensation claim. The employer was terminated due to the expiration of his 3 months of leave time (FMLA) pursuant to company policy. These 3 months consisted of time the plaintiff was off for the on the job back injury. In fact, the 3 months expired approximately 7 days after the employee was placed at MMI. The Court of Appeals held the plaintiff could use circumstantial evidence to establish a prima facie case for retaliatory discharge pursuant to Alabama case law. However, the proximity of the termination to the MMI date, the decision maker’s knowledge of the compensation claim, the supervisor’s attempt to contact the doctor, allowing an employer to work light duty for a period despite the lack of company policy, and having the reason for termination expressed two different ways but both indicating termination was due to the expiration of leave time was not enough circumstantial evidence to establish the compensation claim was the sole motivating factor for the termination.

Alabama Code §25-5-68 caps recovery of permanent partial disability benefits ("PPD") to injured workers to a maximum of $220 per week. Under Alabama’s workers’ compensation laws, employers get credit against any PPD obligations for non-scheduled injuries to the extent of any TTD benefits paid. Alabama Code §25-5-57(a)(3)g.

Recently, Birmingham attorney Larry King filed a motion in the case styled Shane Robinson v. Mid-South Control Systems seeking to have the $220 cap deemed unconstitutional. Judge Scott Vowell (Jefferson County), while denying Mr. King's motion, stated in his Order that the benefits cap set 23 years ago guarantees poverty for claimants and their families. Judge Vowell further stated that "the trial courts see these workers leave our courtrooms week after week, without the ability to support themselves or their families."

Judge Vowell deemed the cap unfair but not unconstitutional and called upon the Alabama Legislature to make the change. Several attempts have been made to change the $220 cap. The latest, introduced during the 2008 legislative session, called for linking benefits for permanent partial disabilities to the average-wage index. Specifically, SB 403 (Permanent Partial Disability Benefits) sought to remove the $220 cap on weekly workers’ compensation benefits and allow recovery to extend past 300 weeks for the "duration of the disability." The bill would also have allowed the court to consider evidence of vocational disability in virtually every case, even where the employee has returned to work earning more money. Finally, the bill would have eliminated scheduled member injury awards in any case where an employee sustains a loss of earning capacity. Fortunately, this bill (along with 4 others) never got out of committee.