On April 19, 2013, the Alabama Court of Civil Appeals released its opinion in McAbee Construction, Inc. v. Elvin Allday. At trial, the employee presented evidence that he had worked as a boilermaker since 1986. During that time, he had sustained multiple work related injuries to his back and shoulders. However, the evidence revealed that the employee had fully recovered from those injuries and was working without restriction. During a temporary shutdown of the mill operated by his regular employer, the employee took a job with McAbee Construction and claimed a work accident resulting in injury after only 5 days with his new employer. Initially, the employee claimed only arm and shoulder problems but, a few days later, also claimed back pain. Eventually, the employee underwent a two-level lumbar fusion and a decompressive laminectomy. At trial, the judge considered medical testimony stating that the employee could have experienced the same problems even without a new accident based on his medical history. There was also evidence that the FCE was rendered invalid by symptom magnification. Ultimately, the judge determined that the back injury was compensable and awarded permanent and total benefits for the lifetime of the employee. 

On appeal, the Court of Civil Appeals determined that there existed substantial evidence to support the permanent and total verdict and, therefore, affirmed that aspect of the judgment. In doing so, it addressed a few issues of interest.  

Notice

On appeal, the employer asserted that the employee did not provide proper notice of his back injury. The Court of Civil Appeals noted that only notice of the accident is required and that notice of the exact nature of the injury that flows from the accident is not required.   

Depression

The employer also asserted that the judge improperly related the employee’s claims of depression to the accident because the employee had failed to allege depression in his complaint. The Court of Civil Appeals noted that, while the judge’s order made reference to the testimony of a psychologist, it was for the purpose of explaining the symptom magnification referenced in the FCE. Specifically, it was the opinion of the psychologist that depression can cause or contribute to symptom magnification.  

AWW

At trial, the employee testified that he chose to work only 40 weeks a year in order to spend more time with his family. As a result, the judge elected not to use one of the three predesignated methods set forth in the Alabama Workers’ Compensation Act for computing AWW. Rather, the judge took the amount earned by the employee in the one week he worked for his employer, multiplied it times 40 weeks, and then divided it by 52 weeks. The Court of Civil Appeals agreed that the judge’s method was equitable to both parties and was an acceptable deviation from the standard three methods.  

Lifetime Benefits

The employer asserted and the employee conceded that it was improper for the order to state that benefits were owed for the employee’s lifetime. Therefore, the case was remanded to the judge to revise the order to state that benefits were only owed for the duration of the employee’s permanent disability.

_________________________________________

About the Author  

This article was written by Michael I. Fish, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at mfish@fishnelson.com or any firm member at 205-332-3430.

The Alabama Court of Civil Appeals recently released its decision in the case of G.A. West & Co., Inc. v Claiborne Johnston. On Thursday, September 14, 2006, Johnston stepped into a ditch, and either slipped on a pipe or lost his balance. Johnston was able to right himself before he fell, but he allegedly felt an excruciating pain in his lower back, hips and thighs. Johnston testified that he immediately yelled out in pain, and that he told his supervisor, Dale Clements (who was in the ditch with Johnston at the time), that he had hurt his hips when he slipped. Johnston finished his shift that day, and was off work the next 3 days. When he returned to work on Monday, Johnston told Clements that he was still hurting from the incident and needed to see a doctor. According to Johnston, Clements did not respond, so Johnston called Dr. William Bose. Dr. Bose had previously performed two hip replacement surgeries on Johnston in 2002 and 2005. Dr. Bose examined Johnston and determined that he had not injured his hips, and referred Johnston to Dr. James West. Dr. West had previously treated Johnston for a fractured coccyx due to injury in 2005 with another employer, and had assigned a 5% impairment rating to Johnston’s body-as-a-whole as a result of that injury. According to Dr. West, Johnston suffered a new injury to his lumbar spine as a result of injury at G.A. West & Co.

A year after the injury, Johnston went to the office of G.A. West’s company nurse, and told her that he had suffered an injury the prior year. He further told the nurse that he first thought the injury was related to his hips or his coccyx, but had since learned it was related to his lumbar spine. Johnston asked G.A. West to consider paying for his treatment. G.A. West declined, and Johnston filed a lawsuit seeking permanent and total disability benefits. G.A. West & Co. asserted that it did not have proper notice of the alleged injury; that Johnston had knowingly and intentionally misrepresented his physical condition in writing at the time he entered into the employment relationship; that Johnston had deliberately concealed a work related injury; that Johnston had a pre-existing condition that accounted for some of his disability; and that Johnston was not permanently and totally disabled because he was capable of being vocationally retrained. The trial court found in favor of Johnston on all issues, and G.A. West & Co. appealed on all of the above grounds. A very brief analysis of each of the issued raised on appeal by G.A. West is below.

Misrepresentation

When Johnston was hired, he completed a pre-employment questionnaire that asked if he had any prior on-the-job injuries, other injuries or illnesses, or was taking any prescription medications. Johnston admitted that he had injured his coccyx in April of 2005 and had been assigned a 5% impairment rating. However, he answered "no" to the remaining questions, although he was taking Mobic regularly and had two previous hip replacement surgeries. Additionally, a 2005 MRI of Johnston’s back revealed bulging discs at the L4-5 level of Johnston’s lumbar spine, and medical records obtained through discovery indicated that Johnston had complained of back pain for more than 20 years. Based on this, G.A. West & Co. argued that Johnston was barred from recovering benefits under § 25-5-51 of the Alabama Workers’ Compensation Act, because he misrepresented his physical condition at the time he was hired. The appellate Court noted that in order to prevail on that defense, G.A. West & Co. had the burden of proving that in the course of entering into the employment relationship, G.A. West provided Johnston with the written warning set forth in § 25-5-51, Johnston knowingly and falsely misrepresented his physical condition in writing, and that condition was aggravated or reinjured in an accident arising out of and in the course of Johnston’s employment. The Court noted that while Johnston had a history of back issues, the evidence did not establish that Johnston was ever informed that he had any serious back related injury or illness. Additionally, the Court failed to find any causal connection between Johnston’s use of prescription medications or his prior hip replacement surgeries and his September 2006 injury that would predispose him to further injury. As such, the Court found that G.A. West failed to meet its burden of proof on the misrepresentation defense.

Notice

While it was undisputed that Johnston failed to give written notice as provided under the Act, the Court found that G.A. West had oral notice sufficient to cause it to investigate the alleged accident further. The Court noted that since Johnston’s supervisor was with him and witnessed the alleged accident, G.A. West had sufficient notice that work-related activity prompted Johnston’s exclamation of pain.

Estoppel

On appeal, G.A. West argued that Johnston was estopped from recovering workers’ compensation benefits because he deliberately concealed his work-related injury. The appellate Court found that G.A. West failed to raise that issue before the trial court. Relying on precedent set in Dueitt v. Scott Paper Co., 695 So.2d 40, 44 (Ala.Civ.App. 2004), the Court of Appeals stated that it could not consider an issue that had not been properly raised in the trial court.

Pre-Existing Condition

G.A. West argued that the trial court erred when it failed to allocate at least a portion of Johnston’s alleged disability to his previous injuries pursuant to § 25-5-58 of the Act. However, the appellate court noted that "the law presumes that there is no preexisting injury or infirmary when the employee is able to fully perform his or her job duties in a normal manner prior to the subject injury." As such, the appellate court found that the trial court’s findings were based on substantial evidence.

Causation

G.A. West further argued that Johnston failed to establish medical causation of his injury, because Dr. West could not state with any certainty that Johnston’s herniated disc was caused by the September 2006 accident. The appellate court noted medical causation may be established by a combination of lay testimony and expert medical testimony. Since Dr. West considered the accident to be the cause of Johnston’s injuries, and Dr. West testified that Johnston’s injuries were potentially compatible with an accident like Johnston’s, the trial Court had substantial evidence on which to base its finding of compensability.

Permanent & Total Disability

Finally, G.A. West argued that Johnston was not permanently and totally disabled because he was capable of being vocationally retrained. In support of its argument, G.A. West pointed out that Johnston had been employed by various employers since the accident; that Dr. West had only restricted Johnston to the light to medium job categories; that Dr. West did not testify that Johnston was incapable of working; Johnston had a commercial drivers’ license; and Dr. West agreed with Johnston’s plan to find work as an equipment operator. Johnston, on the other hand, testified that he couldn’t perform the equipment operator jobs without pain; he had to nap during the day because he slept poorly at night due to pain; he had performed manual labor jobs all of his life; and he only had a tenth grade education. The Court of Appeals found that the trial court could have implicitly found that Johnston was incapable of being retrained for gainful employment due to his pain, sleep difficulties, and limitations on standing, sitting, and walking. The Court further pointed out that an employee doesn’t have to be completely helpless to be permanently and totally disabled, but only must be unable to maintain employment similar in remuneration.

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.

Wehadkee Yarn Mills v. Deborah Harris:

On September 4, 2009, the Alabama Court of Civil Appeals released this opinion wherein it reversed and remanded a permanent and total award with instructions. At trial, the evidence revealed that the plaintiff had a significant thumb injury. The plaintiff testified that she was in a considerable amount of debilitating pain. Her vocational expert testified that she was 100% disabled. The trial judge ruled that the plaintiff was permanently and totally disabled. On appeal, the employer argued that the thumb injury should not have been removed from the schedule because there was no evidence that the thumb injury extended to other parts of the body and permanently affected their efficiency. The Court of Appeals agreed. The Court also acknowledged that it is possible for an injury to be removed from the schedule where the plaintiff’s pain is considered to be "virtually totally physically disabling." Since the trial court did not specifically address whether or not the plaintiff’s complaints of pain rose to this level, the Court remanded the matter with instructions that the judge make such a finding.

Do you have any claims where the claimant is asserting that she is permanently and totally disabled but she has refused a recommended surgical procedure? If so, then you may be able to use a recently decided case to disqualify her from a permanent and total award.

It is well settled that, for purposes of workers’ compensation in Alabama, the employer cannot force a claimant to undergo surgery. Further, if the claimant’s refusal of surgery is deemed reasonable, then her compensation benefits may still be due. See Baptist Memorial Hosp. v. Gaylor, 646 So. 2d 93 (Ala. Civ. App. 1994). However, that very same refusal may now disqualify a claimant from a permanent and total award. In the recent case of Ex parte Saad’s Healthcare Services, Inc., — So.2d —, 2009 WL 886507 (Ala. 2008), a claimant sued her employer for workers' compensation benefits based on physical and psychological injuries she sustained after being stabbed while working. At trial, the employer argued that the claimant’s refusal to submit to psychological treatment made her ineligible for permanent and total benefits. In support of its position, the employer relied on the following exclusion contained in the statutory definition of permanent total disability:  

The Alabama Supreme Court ultimately determined that the psychological and psychiatric treatment that the claimant refused after reaching maximum medical improvement was not "physical or vocational rehabilitation" within the exclusion found in the definition of "permanently and totally disabled." In arriving at this decision, however, the Court noted that the Alabama Workers' Compensation Act does not define the terms "vocational rehabilitation" or "physical rehabilitation." Therefore, the Court undertook to determine the threshold matter of defining the words "physical [and] vocational rehabilitation" as used in the exclusion. The Court first declared that it must consider the "natural, plain, ordinary, and commonly understood meaning" of "vocational rehabilitation" and "physical rehabilitation," respectively, as well as the context of those terms within the Alabama Workers' Compensation Act as a whole. In doing so, it noted that:  

Since the psychological treatment refused by the claimant was not offered for the purpose of restoring her physical function, the Court did not consider that treatment "physical" within the meaning of the exclusion found in Ala. Code §25-5-57(a)(4)d.

However, application of the above definition to a recommended surgical procedure provides a much different result. Clearly, a recommended back surgery pertains to the body. Further, back surgery is a service provided for the purpose of restoring function to a disabled person’s body. As such, it stands to reason that, if a claimant refuses to undergo a surgery, then she is refusing physical rehabilitation for the purpose of restoring function to her body. Pursuant to Ala. Code §25-5-57(a)(4)d. and the new definitions provided in Ex parte SAAD’s Healthcare Services, the claimant would therefore be excluded from being deemed permanently and totally disabled.

Ex Parte Saad’s Healthcare Services, Inc.:

On April 3, 2009, the Alabama Supreme Court released this opinion which addressed a trial court’s ability to find an employee permanently and totally disabled when the employee has refused psychological and psychiatric treatment. The case arose out of an unfortunate incident in which a licensed practical nurse was stabbed 47 times by a patient’s relative. She received treatment for both physical and mental injuries. At trial, evidence was introduced that the employee refused psychological/psychiatric treatment. As a result, the trial judge applied the Ala. Code § 25-5-57(a)(4)d exclusion which states that an employee cannot be found permanently and totally disabled when he or she refuses to undergo physical or vocational rehabilitation. The case was appealed twice. The first appeal resulted in the Alabama Court of Civil Appeals reversing the trial court on the grounds that the exclusion set forth in Ala. Code § 25-5-57(a)(4)d only applied to refusals taking place after the employee reached maximum medical improvement (MMI). The matter was appealed to the Alabama Supreme Court where the petition was quashed without opinion. When the matter was returned to the trial court, it was learned that the employee had continued to refuse psychological/psychiatric treatment after being placed at MMI by refusing to take her antidepressant medication. Despite this new evidence, the trial court held the employee to be permanently and totally disabled. In support of this finding, the court noted that the Ala. Code § 25-5-57(a)(4)d exclusion did not apply since psychological/psychiatric treatment did not constitute "physical or vocational rehabilitation" as required by the statute. The employer appealed this decision and the Alabama Court of Civil Appeals agreed with the trial court. The Alabama Supreme Court subsequently granted the employer’s petition for certiorari review and held that, because the post-MMI treatment refused by the employee was not offered for the purpose of restoring her physical function or her ability to engage in gainful employment, but was instead offered to treat her mental impairments, the treatment was not "physical or vocational rehabilitation" within the meaning of the Ala. Code § 25-5-57(a)(4)d exclusion.

Practice Pointer:

If you are facing a similar situation then you will want to read the 11 page dissenting opinion authored by Justice Parker quoting extensively from Justice Moore’s partial dissent in the underlying Court of Civil Appeals opinion.

Waters Brothers Contracting, Inc. v. Wimberly:

On March 6, 2009, the Alabama Court of Civil Appeals affirmed the trial court’s decision to award permanent and total benefits for a shoulder injury. The employer based its appeal on the testimony of the treating orthopaedic surgeon who stated that only the employee’s thoracic-outlet syndrome was related to the accident. The surgeon went on to say that the employee’s gout, cervical stenosis, and his degenerative arthritis were not related to the accident. The employer argued that this was important because, if only the thoracic-outlet syndrome is considered, then the only permanent restriction related to the accident was occasional overhead work with the left arm. The employer relied on the fact that a trial court may not consider the effect of adverse health conditions or symptoms not satisfactorily proven to be medically caused by the claimed accident. The Court of Appeals was not convinced that the trial court erroneously relied on the pain and limitations caused by the employee’s gout, degenerative arthritis, and cervical problems. Although the Court acknowledged the testimony of the orthopaedic surgeon, it also noted that the trial court is not bound to accept a physician’s testimony. Rather, the trial court must consider the totality of the evidence. In affirming the trial court, the Court of Appeals considered a second treating physician’s medical records, additional parts of the orthopaedic surgeon’s deposition, and the plaintiff’s own testimony. The Court also pointed out that the fact that the employee went back to work for a short period of time did not disqualify him from being deemed permanently and totally disabled.