Equity Group – Alabama Division d/b/a Keystone Foods v. Rodney DeWayne Harris:

On June 4, 2010, the Alabama Court of Civil Appeals released this opinion wherein it affirmed the Trial Court’s finding of notice and causation but reversed the Court’s decision to require the employer to provide a panel of four. In addition, the Court of Appeals disagreed with the employer’s argument that past, present, and future medical benefits are not owed when the 5 day notice requirement is not satisfied and, instead, interpreted the applicable Code provision to state only that the medical benefits incurred prior to actual notice being given are not owed.

Interestingly, the evidence at trial revealed that the employee was allegedly injured on a Friday just 15 minutes before he was to leave for a week long vacation. It was undisputed that he provided no notice to his employer at that time. The employee did not seek medical attention until the following Monday. In the medical records it stated that the employee was injured the day before (2 days after alleged accident). The employee returned to the same doctors the following Sunday because he fell due to alleged numbness in his leg that he attributed to his original injury. No work accident was mentioned in the records from either visit and the doctors did not recall the employee stating that his injuries were work related. Although the employee’s wife testified that she notified the employer the next day about the alleged work accident, the employer’s witnesses all testified this was simply not the case.

The employee next went to a neurosurgeon of his own choosing. In the neurosurgeon’s records, it was noted that the employee did not relate a job injury but rather felt his back pop when he got out of bed after a vacation. The neurosurgeon further testified that the employee told him that he was not injured at work. Of course, the employee disputed the good doctor’s testimony.

Approximately five weeks after the alleged accident, the employee filed a disability claim with his union. It was denied and he was at that time told he needed to file a workers’ compensation claim. Although the employee was subsequently issued a workers’ compensation prescription drug card, the employer asserted that it was erroneously issued.

Despite the lack of any mention of a work injury in the medical records and the testimony of the employee’s own doctor, the Trial Judge found that notice was proper and that the employee proved both medical and legal causation. The Court of Appeals had no choice but to affirm since it could not re-weigh the evidence and the Judge obviously assigned more weight to the testimony of the wife. In addition, the issuance of the prescription drug card supported the employee’s case regarding notice. Further, an accident report completed by the employer two months after the alleged accident stated that the employee claimed a work injury. Finally, it was noted that the employee was deaf which may have caused some communication problems with his physicians despite the fact that his wife was always present.

The Court of Appeals reversed the Trial Court’s order so far as it required the employer to furnish a panel of four. Although by allegedly denying the claim, the employer relinquished its right to choose the initial doctor, the employee is stuck with the doctor of his own choosing until such time that he becomes dissatisfied and requests a panel of four.

My Two Cents:

I think most employers and defense attorneys would feel fairly comfortable going to trial with a text book red flag injury and testimony from a doctor of the employee’s own choosing stating affirmatively that the employee admitted his injuries were not job related. You just never know what will happen if you proceed to trial. That is why most cases are resolved via settlement.

Goodyear Tire and Rubber Company v. Bobby Long:

On September 4, 2009, the Alabama Court of Civil Appeals released this opinion concerning the issue of notice. At trial, the plaintiff testified that he told his supervisor that "his knee was bothering him again" and asked that he be allowed to leave and go to the doctor. The trial court determined that proper notice was given. On appeal, the employer argued that the plaintiff’s general statement concerning a knee injury did not amount to adequate notice of a work injury. The Court of Appeals agreed that the statement made by the plaintiff, taken alone, did not constitute proper notice. However it affirmed the trial court because the plaintiff provided enough information to the staff at the company infirmary to put the employer on "inquiry notice." In other words, the employer had at least some information that his condition was related to his employment thus placing an affirmative duty on the employer to investigate the incident further.

Francis Powell Enterprises, Inc. v. Andrews:

On April 24, 2009, the Alabama Court of Civil Appeals released a twenty-four (24) page opinion which covered numerous issues. Due to the voluminous nature of the opinion, bullet point summaries of the issues are provided below.

Notice Requirement

In this case the employee felt pain in his back after a fall on November 3, 2003. However, he did not think it was serious and went on with his job. On November 5, 2003, the plaintiff was on the job and felt the pain again and could not straighten up. He notified his employer on November 6, 2003 of the November 3, 2003 fall. The employer argued that the employee said he did not believe he sustained a major injury on November 3, 2003. Therefore, the employer took the position that the Trial Court made no findings concerning adequate notice of the November 5, 2003 injury.

The Court of Civil Appeals held that November 3, 2003 was the date of injury and this was supported by substantial evidence. The Court held that the seriousness of the employee’s injury from the November 3, 2003 fall did not manifest itself until later, November 5, 2003. For this reason there was substantial evidence that the injury was on November 3, 2003 and the employee provide adequate notice of the injury pursuant to Ala. Code §25-5-88.

Medical Causation

The treating physician testified that, based on an assumed set of facts, which mirrored the plaintiff’s past medical history, he would assume the November 3, 2003 fall exacerbated the employee’s condition. The Court noted the Alabama Supreme Court’s previous ruling, Ex parte Bryant, "In appropriate circumstance, awards may be made when the medical evidence on these matters is inconclusive, indecisive, fragmentary, inconsistent, or even nonexistent.

The Court held that the doctor’s assumption based on the hypothetical facts mirroring the employees medical history provided substantial evidence of medical causation.

Apportionment of Benefits

The fact that the employee was previously deemed permanently and totally disabled by the Social Security Administration did not trigger the apportionment provision set forth in Ala. Code §25-5-58. The Court found that the employee had returned to work at full duty thus nullifying the effect of the prior decision

Estoppel

The evidence before the Court was that the employee received Social Security benefits until 2001. After this period he returned to work, at full duty, for several employers without complaints of back pain. Therefore, the Court found the previous Social Security benefits did not estop him from claiming he was able to do his job.

Note: The employer tried to establish that the employee received benefits from Social Security in 2003 as well. However, the Court noted that the employer did not present sufficient evidence to prove this. Therefore, it is possible the outcome would have been different if the employer had provided sufficient evidence of benefits in 2003.

Payment of Benefits not Admission of Guilt

The Alabama Workers’ Compensation Act §25-5-56 provides that if an employer pays compensation benefits to an employee, it is not an admission of liability. Based on this the Court can not infer that because an employer paid benefits that they are liable for the claim. The Court held that they must presume the Trial Court knows the law. Therefore, the fact payment of benefits is mentioned in the Trial Court’s findings of fact does not indicate an improper inference and was not error.