Jeff White v. HB&G Building Products, Inc.;

On August 20, 2010, the Alabama Court of Civil Appeals considered a matter involving the Last Injurious Exposure Rule. This rule deals with subsequent injuries in workers’ compensation involving accident dates with either two different insurers or two different employers.

In this case, the employee fell and injured his knee. His treating physician first indicated that there was a probable tear to the soft tissue around the employee’s knee cap. After two months of treatment, the treating physician made the determination that the employee’s knee had healed and returned him to regular duty. The employee continued to complain to the treating physician and requested a second opinion; which the treating physician encouraged. The physician set up an appointment for the employee to be seen by a second physician.

In between the time the employee asked for the second opinion and the time he saw the second physician; the employee voluntarily changed jobs. The employee’s new job required him to stand most of the day (something the previous job did not require). The employee stated that at his new job his knee would ache and swell everyday and that he would occasionally develop leg craps.

At trial the second physician stated that while he thought the employee’s job requirements could have aggravated the existing injury; he did not know whether the injury was a new injury, an old injury, an aggravation, or a recurrence. The Trial Court found that the employee’s knee injury was an aggravation of the injury he had incurred with the first employer.

The last injurious exposure rule mandates that a new employer is responsible for the treatment of the employee if: 1) the second injury is an aggravation of the prior injury; or 2) the second injury is a "new injury." The new employer is not responsible if the second injury is an old injury or a recurrence (of an old injury).

The Alabama Court of Civil Appeals reversed the judgment of the lower court stating that there was no evidence to support the trial court’s findings that there was either a second injury to the knee or that the employee had aggravated his previous injury.

W.A. Kendall & Company, Inc. v. Ryan Madison:

On July 23, 2010, the Alabama Court of Civil Appeals reversed a verdict in favor of the plaintiff for permanent and total disability. At trial, the plaintiff presented evidence that he developed two boils under his left arm pit which were lanced. His employer was provided notice of the boils. The plaintiff later developed a right wrist injury, a staph infection, and endocarditis of the mitral valve in his heart which required surgery. The trial judge held that the notice requirement was satisfied because the employer was told about the boils. The overwhelming medical testimony, however, demonstrated that the staph infection, which caused the mitral vale problem, was caused by the wrist injury. As a result, the Court of Appeals reversed the trial court with instructions that it make a finding of fact as to whether notice was provided to the employer.

On April 17, 2009, the Court of Civil Appeals released its opinion in Lana Brown v. Patsy Patton d/b/a Korner Store. You can find a summary of the holding on our Blawg under the causation category (see categories listed in column on right). Since the release of this opinion, it has been routinely cited by attorneys as binding law that claimants no longer have to prove that their injuries arose out of their employment. However, it is an unpublished opinion and, therefore, not yet binding authority. the reason being that the employer filed a petition for a writ of certiorari with the Supreme Court which was granted. As a result, the Court of Civil Appeals did not enter a certificate of judgment pursuant to Rule 41 of the Alabama Rules of Appellate Procedure. Therefore, until the Supreme Court releases its opinion, the decision by the Court of Civil Appeals, which arguably does away with the "arising out of" portion of legal causation cannot be considered legal precedent.

Until the Supreme Court rules one way or the other the Lana Brown case is not the law in Alabama. As a result, claimants must continue to prove that their injuries occurred in the course of their employment and that their injuries arose out of their employment.

Lana Brown v. Korner Store:

On April 17, 2009, the Alabama Court of Civil Appeals released an opinion which had the affect of dispensing with the "arising out of" part of the two part causation test. In essence, the Court stated that if you are at work ("in the course of") when the accident occurs, then your injury is compensable. This is known as the "but for" test and is the test for causation in some states. However, the Alabama Workers Compensation Code specifically provides for a two part test. The employer petitioned the Alabama Supreme Court to review the case and, fortunately, the Supreme Court just recently agreed to accept the matter. We will continue to monitor the situation and keep you posted as to all developments.

Recently the matter of St. Joseph’s Hospital , et al., v. Ward, came before the Georgia Court of Appeals. Ward, a nurse, was at work at the hospital when she stood and turned to get a glass of water for a patient, at which point her knee “twisted” and gave out. An Administrative Law Judge (ALJ) found the injury compensable. She attempted to return to work but was unable to complete her duties. Ward then attempted light duty work before she went out for right knee replacement surgery. 

St. Joseph’s appealed the decision of the ALJ to the State Board Appellate Division, whereupon the decision was reversed. The Board concluded that Ward was not exposed to any risk unique to her employment by standing and turning. She would have been “equally exposed” to the risk whether or not she had been at work and therefore the injury was deemed not compensable because there was no casual connection between her injury and her employment. 

Ward appealed this decision to the Superior Court which reversed the State Board’s decision. St. Joseph brought their appeal to Georgia Court of Appeals, in which the court sided with St’ Joseph’s.  For an on-the-job injury to be compensable the injury must not only occur during work ours, it must also “arise out of” and be in the course of the employee’s work duties. Ward has applied for certiorari to the Supreme Court of Georgia but it has not yet been granted at this time.  

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.

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.

KGS Steel, Inc. v. Donald McInish: 

On June 26, 2009, the Alabama Court of Civil Appeals considered the trial court’s finding of medical causation for a second time.  In the case, the employee claimed to have sustained a cumulative physical stress injury to his neck and shoulders while employed as a truck driver by KGS Steel, Inc.  The first time, the Court of Civil Appeals reversed the trial court after reweighing the evidence presented at trial and determining that the employee’s case did not satisfy the clear and convincing proof standard of evidence, which is required in order to prevail in a workers’ compensation claim based on an injury caused by cumulative physical stress.  In its ruling, the Court of Civil Appeals also implied that proof of medical causation is solely dependent upon the presence of expert medical testimony.  However, the Supreme Court of Alabama reversed and remanded the Court of Civil Appeals with regard to reweighing evidence and establishing medical causation. The Supreme Court stated that an appellate court cannot reweigh evidence presented to the trial court. Rather, the appellate court’s role is to determine whether the trial court’s findings of fact are supported by substantial evidence with due regard to, and respect for, the appropriate level of evidentiary proof required, which in this case is clear and convincing proof. The Supreme Court also stated that "totality of the evidence" standard applies to workers’ compensation cases, which means that lay and expert, as well as circumstantial evidence, must be considered.      

In its second opinion, the Court of Civil Appeals still reversed the trial court’s finding of medical causation; however, the Court incorporated the instructions from the Supreme Court.  After reviewing all circumstantial evidence, lay testimony, and expert testimony, the Court of Civil Appeals ruled that the trial court could not have reasonably concluded with firm conviction that the employee’s job duties at KGS Steel, Inc. caused or contributed to the neck and shoulder injuries claimed by the employee. 

It should be noted that Judge Pittman dissented on the grounds that he agreed with the trial court’s conclusion. 

Lana Brown v. Korner Store:

On April 17, 2009, The Alabama Court of Civil Appeals considered whether or not an unexplained fall satisfies the "arising out of" part of the test for causation. The undisputed facts revealed that the employee, a 60 year old cashier, turned quickly and made a few quick steps towards the cash register when she saw a customer approaching the counter.  The closed circuit television system video revealed that the employee simply fell to the ground. The employee testified that she did not know what caused her to fall. As a result, the trial judge granted summary judgment in favor of the employer based on a prior case with similar facts (Wal-Mart Stores v. Morgan). Unfortunately, the Court of Civil Appeals reversed the trial court by relying on a more recent case (Ex Parte Byrom) which, according to the Court, effectively reversed all the cases before it (including Wal-Mart v. Morgan). In other words, prior to Ex parte Byrom, an employee had to be able to prove that the employment was the "source and cause" of an accident. If a fall was unexplained, then the employee could not satisfy this burden and would lose. In overruling these cases, the Court held that if employees can establish that they fell at work, then they satisfy the "arising out of" part of the causation test. This has the effect of doing away with the "arising out of" part of the test altogether. The employee now only need show that the fall happened "in the course of" the employment and they have met the necessary burden to prove legal causation.

My Two Cents:  The case which the Court of Civil Appeals relies on as overruling Wal-Mart v. Morgan concerned an employee that was electrocuted while on the telephone. In that case, the Alabama Supreme Court held that the claim was compensable because the employee established that his work duties made him more susceptible to such an accident. As such, it should not have the effect of overruling prior case law regarding unexplained falls. Hopefully, this case will be reviewed by the Alabama Supreme Court and the matter will be reversed. Otherwise, employers will be responsible for all on the job accidents regardless of the cause.

Ex parte McInish , --- So.2d ----, 2008 WL 4097593 (Ala. 2008):

A claimant brought an action against his employer seeking workers' compensation benefits for injuries he allegedly sustained while employed as a truck driver. The Circuit Court of Jefferson County, Bessemer Division, entered judgment in favor of the claimant. On appeal, the Alabama Court of Civil Appeals reversed and remanded the trial court. The Alabama Supreme Court subsequently granted the claimant's petition for writ of certiorari. The Supreme Court held that the Court of Civil Appeals improperly reweighed the evidence presented to the trial court. It further held that proof of medical causation is not solely dependent upon the presence of expert medical testimony.