Beginning July 1, 2012, the maximum worker’s compensation payable will be $771 per week and the minimum will be $212 per week.  This change is based on the Director of Industrial Relations’ determination that the State’s average weekly wage was $770.80, and the change is effective for any injury occurring on or after July 1, 2012.

This is an update on the matter of G.A. West & Co. v. Ricky McGhee which we discussed previously here and here.

Beginning July 1, 2011, the maximum workers’ compensation payable will be $755.00 per week and the minimum compensation will be $208.00 per week. This change is based on the Director of Industrial Relations determining that the State’s average weekly wage for the calendar year of 2010 was $755.46.

(Note: The Alabama Court of Civil Appeals withdrew its opinion of July 17, 2009 and substituted it with the opinion summarized below)

G.A. West & Co. v. Ricky McGhee: 

On January 29, 2010, the Alabama Court of Civil Appeals released this opinion in which it reconsidered a previous opinion. Specifically, the Court addressed whether the trial court properly calculated the AWW and whether or not a permanent and total award was proper. At trial, the employee introduced evidence that he was injured on his second day of work. Since the employee was a welder and iron worker and did not work consistent work weeks throughout the year, the judge determined that the 3 methods for calculating an AWW provided in the Code were not applicable. Therefore, the judge also considered the testimony of a co-worker who explained how much the employee would have worked had he not been injured and arrived at an AWW he considered just and fair to both parties. The Court of Civil Appeals agreed that the judge was allowed to depart from the 3 methods provided for in the Code. However, the Court reversed the trial court’s method because it resulted in giving the employee his best case scenario. Such a result could not be considered just and fair to the employer.

The employer also appealed the permanent and total award based on its vocational expert’s testimony that jobs were available. The Court upheld the trial court on that issue since the plaintiff’s vocational expert rendered the opposite opinion and it was within the trial court discretion to weigh the credibility of the testimony.

The employer also sought a reversal based on certain affirmative defenses. First, it asserted that the employee was guilty of a willful safety rule violation by not wearing the safety harness at the time of the subject accident. The Court refused to reverse the trial court based on that defense because the employee was not provided notice of the defense until six days before trial. Second, the employer asserted that the employee did not meet the definition of "permanent and total" because he refused to undergo vocational retraining or to accept a reasonable accommodation. The Court refused to reverse based on that defense because it was not asserted until the day of trial. Third, the employer asserted that the employee did not meet the definition of "permanent and total" because he refused reasonable medical treatment. Since that defense was not asserted during the trial at all, the Court refused to consider it. 

Practice Pointer:  The Code provides three methods to calculate an AWW. First, you take the total wages (and employer paid fringe benefits) earned in the 52 weeks prior to the injury and divide it by 52. Second, you take the total amount as set forth above and divide it by the actual number of weeks worked. Third, you take the AWW of a similarly situated employee. In the above case, the employer offered the testimony of such an employee but could not establish to the judge’s satisfaction that the employee was, in fact, similarly situated to the plaintiff. It is important to make sure that you can establish such a foundation or the testimony may be ignored. In addition, it is important to assert all available affirmative defenses in your answer and in the form of amended answers as soon as those defenses become known. Such defenses should become part of your trial stipulations which should, in turn, be part of your trial brief and/or asserted at the commencement of the trial.

(Note: This opinion was withdrawn and a new opinion was released on January 29, 2010.  See blawg summary dated January 30, 2010)

G.A. West & Company v. Ricky McGhee:

On July 17, 2009, the Alabama Court of Civil Appeals released this opinion in which it affirmed the trial court’s finding of permanent and total disability. It also affirmed the trial court’s method for calculating AWW where the plaintiff was injured on his second day of employment. Specifically, the Court held that Ala. Code §25-5-57(b) did not require the use the third method (using the wages of a similarly situated employee) for calculating the plaintiff’s average weekly wage if the result was not fair and just. At trial, the employer presented a wage sheet that indicated (in handwriting at the top) that it was for an unidentified "ironworker," the same position as the plaintiff. The plaintiff rebutted this evidence with the testimony of a co-worker with the same job description who stated that the job required 10 hours per day for 5 days a week for the first month and then 12 hours a day for 7 days a week for the last month. In resolving the contradictory evidence, it was determined that the trial judge may consider all the evidence in arriving at an average weekly wage that is fair and just in such situations where doing otherwise would have an unfair and unjust result.

The Court of Appeals also found that when determining if an individual is permanently and totally disabled the words "gainful employment" mean employment similar in remuneration to that employment held prior to the injury. The Court further held that it was implicit that the employment must be suitable (i.e. compatible to pre-injury occupation, age, education, and aptitude). The trial court heard conflicting evidence concerning the plaintiff’s ability to return to work. The Court of Appeals found that, even where records reveal evidence that the plaintiff was less than permanently and totally disabled, a trial court’s findings that are based on conflicting evidence are conclusive if there is substantial evidence to support the findings.

Ex parte Dolgencorp, Inc., --- So.2d ----, 2008 WL 4757045 (Ala. 2008):

In this October 31, 2008 opinion, the Alabama Supreme Court held that the second method for calculating the average weekly wage as set forth in Alabama Code § 25-5-57(b) must be used in situations where an employee has worked less than 52 weeks. Only when it can be documented that the results of using the second method will result in an outcome that is not fair and just to both parties can the trial judge use the discretionary third method. In this case, the trial judge should have used the second method and divided the employee’s income by the 39 weeks he actually worked.