Alabama Court of Appeals Declines to find Permanent and Total Disability to be Exception to the Schedule
On August 22, 2014, the Alabama Court of Civil Appeals released its opinion in Goodyear Tire & Rubber Co. v. Stephen Bush. Bush alleged on February 11, 2011, he was walking down some stairs when he stumbled and fell onto his right knee. He then climbed back up the stairs and notified his supervisor of the accident, which both Bush and his supervisor reportedly laughed off. Bush did not report that he had injured his knee at that time, but he apparently told his supervisor that his knee was swollen and painful a few weeks later. Goodyear denied Bush’s workers’ compensation claim based on Bush’s alleged failure to provide timely and adequate notice of the injury, and Bush filed suit.
The parties proceeded to trial in May 2013. Following trial but before the trial court entered judgment, the parties reached a settlement agreement, which they presented to the trial court for approval in July. The trial court determined that the settlement was not in Bush’s best interest because it would have closed his medical benefits, and rejected the settlement. A few days later, the trial court entered judgment in favor of Bush. The trial court ultimately found that Bush’s testimony that he reported pain and swelling within 90 days of the accident more credible than his supervisor’s testimony that Bush never reported the injury. The court also found that Bush’s right knee injury had limited him to working light duty jobs which required no stooping, squatting, kneeling, climbing or lifting over twenty pounds, and that those restrictions prevented him from returning to work as an automobile mechanic, which was his primary occupation for over forty years. The trial court rejected Goodyear’s argument that Bush’s compensation should have been limited to that set out in the schedule for the leg, and concluded that Bush was permanently and totally disabled. Goodyear appealed, asserting that the trial court exceeded its discretion in refusing to approve the settlement. Goodyear also asserted that the trial court erred (1) in finding that Bush provided adequate notice of his injury, (2) in finding that Bush’s compensation was not limited to the schedule for the leg, and (3) in finding that Bush was permanently and totally disabled.
In regard to the Trial Court’s rejection of the settlement, the Court of Appeals stated that when a settlement is approved by an Alabama Department of Labor Ombudsman, it may only be set aside upon a showing of fraud, coercion or undue influence within 60 days of the settlement. However, when a settlement is presented to the circuit court for approval, it is the duty of the trial judge to ensure that the settlement is in the employee’s best interest. The Court of Appeals held that since the parties chose to submit the settlement to the court for approval, the trial judge had discretion to determine whether the settlement was in Bush’s best interest, and that the judge did not abuse his discretion by rejecting the settlement.
In regard to Goodyear’s notice defense, the Court of appeals stated that while the Act requires notice of an accident, case law indicates that the pertinent inquiry is whether the employer has received actual notice of the injury, such to enable the employer to provide immediate medical diagnosis and treatment in an effort to minimize the seriousness of the injury and facilitate the earliest possible investigation of the facts surrounding the injury. The appellate court noted that Goodyear did not argue that Bush’s alleged notice was insufficient to put Goodyear on inquiry notice. The Court of Appeals stated that since the trial judge had the opportunity to hear and observe the witnesses first hand, the fact that it found Bush’s testimony credible was sufficient to support a finding that Bush gave proper notice of his injury.
However, the Court of Appeals reversed the trial court’s finding that Bush was permanently and totally disabled, because the trial court failed to make a finding that the effects of Bush’s knee injury extended to and affected the use and efficiency of other parts of his body. Citing Advantage Sales of Alabama, Inc. v Clemons, the Court of Appeals reiterated that if the employee does not prove that the injury to the scheduled member prevents him from using the uninjured parts of his body, the injury shall be classified as a permanent partial disability as a matter of law, and no evidence of vocational disability is to be considered.
My Two Cents
The Court of Appeals’ reliance on Advantage Sales of Alabama, Inc. v Clemons is good news for employers, as it resolves what is somewhat of a chicken-egg argument. Employees’ attorneys have long argued that permanent total disability was effectively an exception allowing compensation outside of the schedule. However, as this ruling points out, an inquiry into the effects of the scheduled-member injury on the other parts of the body is necessary before a determination of whether evidence of vocational disability can even be considered. Assuming totally or virtually totally disabling pain or psych are not issues, even if an employee has a severe knee injury, his compensation is limited to 200 weeks unless the effects of his knee injury somehow extend beyond his leg and permanently affect the efficiency of other body parts.
About the Author
This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at firstname.lastname@example.org or (205) 332-3414.