Evidence Supports Finding of New Injury Rather Than Recurrence of Previous Injury
On August 27, 2010, the Court of Civil Appeals released their opinion in the Water Works Board of the City of Birmingham v. Allan Isom, affirming the trial court’s decision that the plaintiff suffered a new injury and was entitled to permanent partial disability benefits, pursuant to the Alabama Workers’ Compensation Act.
The evidence presented to the Court was that the plaintiff suffered injury to his left shoulder in 2003, which resulted in two surgeries to repair a tear in the left shoulder. In August 2005, the plaintiff was returned to work with no restrictions, with a disability rating of 10% to the body as a whole. This rating was based on a Court approved settlement of the 2003 injury.
In July of 2006 the plaintiff was involved in a second accident, re-tearing the left shoulder. He was returned to MMI with a 6% rating to the body as a whole. The authorized treating physician and medical records indicate he had recovered from the first injury and suffered a new injury. He filed another lawsuit claiming he suffered a new injury and was owed benefits. The Trial Court award him a permanent partial disability of at least 12.5% for loss of use of his left arm.
The employer argued it was a recurrence, not a new injury, and that because he already received a 10% rating, he was not entitled to benefits for a 6% rating.
The Court of appeals ruled that because the plaintiff was able to perform his job duties in a normal manner the 2003 injury had healed and was deemed not to exist pursuant to Alabama case law. Therefore, the 2006 accident re-tearing the same shoulder was a new injury and he was due workers’ compensation benefits for this new injury.
Of note, the Court also reiterated that despite the Act stating the employee must provide written notice, oral notice is sufficient when it provides the employer actual notice. The Court stated that just saying I injured my shoulder would not be sufficient but telling the supervisor about the injury and how it happened was enough. The purpose being, that notice is satisfied if the employer was assured the opportunity to investigate and protect itself.