Alabama Court of Civil Appeals Reverses Permanent and Total Award
On September 9, 2013, the Alabama Court of Civil Appeals released its opinion in SouthernCare, Inc v. Margaret Cowart wherein it reaffirmed that a mere possibility does not establish medical causation. Although it affirmed the trial court’s finding of medical causation, it reversed the permanent and total disability award and remanded it for the trial court to determine the level of disability.
The facts before the Court involved a preexisting back injury and then 4 separate accidents injuring the lower back over a 3 year period with SouthernCare, Inc. Prior to a 2004 fall on the job, Cowart had a preexisting back injury but she had been working without restriction. After the 2004 fall and injury, Cowart had periods of disability but returned to full duty. She then had 2 incidents in 2005 and 2 in 2007 where she felt pain in the same region and of the same nature as she did after the 2004 fall. After the 2007 injury was determined not to be work related by the employer, Cowart returned to work but testified that she worked in constant pain. Cowart suffered another accident on the job injuring the same area of the back but testified that the pain was even more excruciating this time.
Cowart was seen by several different doctors and all the medical records indicated that the tests were unremarkable and that Cowart’s symptoms were degenerative or related to fibromamyalgia and not work related. After the June 2007 injury Cowart was treat by Dr. James White. Dr. White opined that without further testing he could not say if stenosis was causing the symptoms or if there was a herniated disk below the stenosis. Dr. White also testified that without further testing he could not say if the injury was work related. He did testify that the back pain could be due to fibromyalgia but the fact that Cowart did not have radiating pain prior to the first fall in 2004 indicated that fibromyalgia was not causing the current symptoms.
The trial court considered the medical records, Dr. White’s testimony and heard the plaintiff’s testimony in a compensability hearing and found the injury compensable and ordered the tests requested by Dr. White. The trial court later held a disability hearing with the only testimony being the employer’s vocational expert, which resulted in a permanent and total disability award. The employer then appealed the compensability decision and the permanent and total disability award.
The Court of Civil Appeals reviewed the testimony but did not re-weigh the evidence as it related to the decision on medical causation and permanent and total disability. The Court noted that the applicable standard for medical causation set forth by the Alabama Supreme Court was the evidence must establish more than a mere possibility that the injury was caused by the work place accident. Ex parte Southern Energy Homes, 873 So. 2d 1116, 1121-22 (Ala. 2003). The court also stated the "expert medical testimony is not always required to establish medical causation; however, an employee’s testimony, while not always insufficient alone to establish medical causation, cannot establish medical causation when ‘the evidence as a whole weighs heavily against finding the [employee’s] testimony alone to be substantial evidence of medical causation.’" Id at 1122. In the instant case the Court of Appeals noted that the only record that specifically said the injury was not related was from a doctor that reviewed the wrong MRI after the first 2007 incident. In addition, Cowart’s doctors stated that her symptoms were related to degenerative problem and/or fibromylgia. The Court then turned to the only detailed opinion on the subject of medical causation, Dr. White’s deposition testimony. This testimony stated that without further testing he could not say if the symptoms were related to the falls at work or not but that it was not until after the fall that Cowart reported radiating pain. The Court of Appeals then turned to Cowart’s testimony to determine if, when viewed with all the evidence, it could provide substantial evidence as to medical causation. Cowart’s testimony was that prior to the 2004 fall her fibromylgia had seldom caused her to miss work. She also testified that after the first fall she had returned to work at full duty with several subsequent incidents causing severe pain in the same region of her back. Cowart further testified that after the first incident in 2007 she returned to work but was in constant pain. The Court of Appeals pointed out that the trial court may infer medical causation from circumstantial evidence that indicates the employee was working normally before the incident, but afterwards the symptoms appeared and continued. Based on this, the Court of Appeals found that substantial evidence was present for the trial court to find medical causation.
The Court of Appeals did find that there was not sufficient evidence to support the permanent and total disability award. They pointed to Cowart’s testimony that she had been able to perform her duties despite her pain, her testimony that she desired to return to work and the employers vocational expert stating she had transferable skills and no loss of earnings capacity. Based on this, the Court of Appeals found there was not sufficient evidence to support a permanent and total disability award and the trial court should review the evidence again to determine the level of disability.
It has long been the position of the Alabama Appellate Courts that they are not to re-weigh the evidence in a workers’ compensation appeal. However, Judge Moore, in his concurring opinion, stated that when the legislature eliminated the certiorari review of workers’ compensation case in 1992 and created the substantial evidence standard, the standard of review for an appeal also changed. Judge Moore stated that the prior standard of review applicable to certiorari review only required support by any evidence, not substantial evidence. Therefore, by changing to the substantial evidence standard the legislature intended to change the standard of review and allow the Court of Appeals to re-weigh the evidence. Judge Moore also asserted that, under the current ruling by the Alabama Supreme Court, the Court of Appeals cannot re-weigh the evidence and must leave the trial court’s ruling alone if there is any evidence that supports the trial court’s ruling, which is the same as the certiorari review pre 1992 amendment. With the legislature creating the substantial evidence standard, Judge Moore opined that the Court of Appeals should be allowed to re-weigh the evidence to establish if there is substantial evidence and not just any evidence to support the decision.
ABOUT THE AUTHOR
The article was written by Joshua G. Holden, Esq. a Member of Fish Nelson, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. He is the current Chair of the ABA/ TIPS Workers’ Compensation and Employers’ Liability Committee. He is also on the Board of the Alabama Workers Compensation Organization and a member of numerous other associations and organizations. Holden has been selected as a "Rising Star" by Super Lawyers.
Holden 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 205-332-1428.