Welcome to the WPM case law recap of 2017 Alabama worker’s compensation judicial opinions. This newsletter does not constitute legal advice, nor does it form an attorney-client relationship. Wainwright Pope & McMeekin, P.C. is a law firm located in Birmingham, Alabama that maintains a civil litigation practice with an emphasis on worker’s compensation defense. During 2017, the Alabama Court of Civil Appeals issued numerous opinions interpreting various provisions of the Alabama Workers’ Compensation Act, which this newsletter will discuss below.
In Ex parte Associated Gen. Consts. Workers’ Comp. Self Insurers Fund, No. 2160120 (Ala. Civ. App. Jan. 6, 2017), the Alabama Court of Civil Appeals once again affirmed that when an employer files a preemptive motion to determine rights and benefits pursuant to Ala. Code § 25-5-88 — presumably in a venue of its choosing — the choice of venue is not subject to the venue rules that apply when suing an individual as opposed to suing a corporation. In this case, the employer filed a petition to determine rights and benefits in a venue of its choice that was proper under Alabama’s “corporation” venue statute set out in Ala. Code § 6-3-7. Due to the broad language of the Alabama Workers’ Compensation Act contained in § 25-5-88 stating, in part, that “Either party to a controversy … may file a verified complaint in the circuit court of the county which would have jurisdiction of an action between the same parties arising out of tort…” the appellate court placed its stamp of approval on the employer’s venue choice in this case as venue was proper under the “corporation” venue statute enumerated in § 6-3-7 where the employer initially chose to file the petition. Although the employer made the pre-emptive move in this case, the employer was not limited by the venue rules that apply to suing individuals as set out in Ala. Code § 6-3-2.
The venue theme was addressed again in Ex parte Hibbett Sporting Goods, Inc., No. 2160069 (Ala. Civ. App. Jan. 27, 2017), a case that this firm handled. Here, the appellate court found that a defendant employer that is an agent of a non-party umbrella corporation cannot be subject to venue in a county where the umbrella corporation would be subject to venue (and where the agent-employer conducts no business) simply because a third-party agent of the umbrella corporation does business in the subject county. Initially the trial court deemed venue proper in Lamar County Alabama after the plaintiff presented evidence that a company called Hibbett Team Sales, Inc. did business in Lamar County, Alabama. Both Hibbett Sporting Goods, Inc. and Hibbett Team Sales, Inc. were agents of Hibbett Sports, Inc. On mandamus, the appellate court ordered the Lamar County, Alabama Circuit Court to transfer the case to Jefferson County, Alabama, the principal place of business of defendant Hibbett Sporting Goods, Inc., based on the evidence presented by the defendant that Hibbett Team Sales, Inc. was a separate and distinct agent of Hibbett Sports, Inc. with no direct sales connection with Hibbett Sporting Goods, Inc., which was the brick and mortal retail arm of Hibbett Sports, Inc., and which operated no retail or warehouse establishments in Lamar County, AL.
Venue is a popular issue in worker’s compensation appeals and was addressed yet again in Ex parte R.E. Garrison Trucking, Inc., No. 2160556 (Ala. Civ. App. June 16, 2017). In this case the Plaintiff, a resident of Washington County, AL sued his employer, a trucking company principally located in Cullman County, Alabama, for worker’s compensation benefits related to an injury sustained in Cullman County, Alabama. The plaintiff submitted evidence that he was permitted to park his employer’s trailers on his property when he was home on weekends and additional evidence that he recruited other drivers in Washington County, Alabama to do work for Garrison Trucking. As such, the plaintiff argued that he was acting as agent for Garrison for purposes of doing business in Washington County, Alabama. Garrison submitted affidavits stating that allowing employees to park trailers at their homes was a convenience for the employees and did not actually further its business as those trailers would be out of use while not available for pick up at the Cullman headquarters. Garrison further asserted that during the preceding 15 years, it did not transport any goods to or for clients located in Washington County, Alabama. Garrison also submitted affidavits admitting that employees were provided bonuses for recruiting drivers, but that those bonuses are only triggered if the recruited drivers work for Garrison for a specified period of time, and that this particular plaintiff never received any recruiting bonuses. The circuit court denied Garrison’s motion to transfer venue to Cullman County and Garrison filed a petition for writ of mandamus. The Court of Civil Appeals granted Garrison’s petition and ordered the case transferred to Cullman County reasoning that Garrison’s permitting trailers to be parked on employee’s property is a convenience for employees and merely incidental to the Defendant’s business of transporting goods. It further reasoned that providing employees with recruiting bonuses is incidental to the business of transporting goods. Conduct considered to be incidental to an employer’s primary business is not considered “doing business by agent.” As this case illustrates, determining whether conduct is incidental to the primary business purposes of an organization is a fact specific, case-by-case inquiry.
Ex parte Tenax Corp., No. 1151122 (Ala. Jan. 27, 2017) is a case where the Alabama Supreme Court explored the application of the exclusivity provisions of the Alabama Worker’s Compensation act to a “special employer.” The plaintiff in this case brought several claims in tort against the special employer – the employer where the employee was currently working through a separate staffing agency. The trial court denied the special employer’s motion to dismiss the tort claims, in part, based on the plaintiff’s assertion that he was an employee of the staffing agency rather than the defendant special employer. First, the Alabama Supreme Court determined whether a “special employer” relationship existed between the plaintiff and the defendant by looking at 1) whether there was an express or implied contract for hire between the plaintiff and defendant; 2) whether the plaintiff was performing the work of the defendant at the time of accident; and 3) whether the defendant controlled the details of the plaintiff’s employment. After determining that all of these requirements were satisfied between the plaintiff and defendant, the appellate court held that the defendant special employer, just like the staffing agency, was protected against general tort liability claims through the exclusivity provisions of the Alabama Workers’ Compensation Act.
In Ex parte Thompson Tractor Co., No. 2160086 (Ala. Civ. App. Jan. 13, 2017), the Alabama Court of Civil Appeals examined subject matter jurisdiction as it relates to worker’s compensation death claims and the longstanding rule that a plaintiff’s claim for worker’s compensation benefits is terminated upon his death. Here, the plaintiff died during the pendency of a worker’s compensation claim involving alleged asbestos exposure. Counsel for the plaintiff substituted the plaintiff’s spouse for the deceased employee as party plaintiff in the worker’s compensation claim, and the trial court allowed the claim to proceed over the employer’s opposition. Ultimately the appellate court found that the trial court lost subject matter jurisdiction over the worker’s compensation claim as soon as the plaintiff died. The decedent’s spouse’s claim as a dependent for worker’s compensation survivor benefits is a separate and distinct claim from an injured worker’s claim for worker’s compensation indemnity and vocational benefits.
Hand Constr. LLC v. Stringer, No. 2150730 (Ala. Civ. App. Jan. 13, 2017) is another case that dealt with subject matter jurisdiction in a worker’s compensation – this one involving out-of-state employment. The plaintiff, an Alabama resident, was contacted via telephone about a job position that involved supervising a construction site in North Dakota for a Louisiana corporation. The plaintiff was injured in a motor vehicle accident in Arkansas on his way back from North Dakota to his home in Mobile, AL. The Mobile County Circuit court determined that it had subject matter jurisdiction over the plaintiff’s worker’s compensation claim reasoning that the plaintiff’s contract for hire was made in Alabama and that the plaintiff was doing work in Alabama since he claimed that he would check and respond to emails from his employer-provided laptop when he was at home on break from the jobsite in North Dakota. After running through the fact specific inquiry set out in Ala. Code § 25-5-35(d) which permits an employee to claim Alabama worker’s compensation benefits when working out of state in circumstances that include when 1) the plaintiff’s employment is principally located in Alabama; or 2) a contract for hire was made in Alabama but the plaintiff was not principally localized in any state, the Appellate Court determined that Alabama did not have subject matter jurisdiction. Although the employee was contacted about the job while at his home in Alabama, he completed his interview and employment application in Louisiana. Likewise, even though the plaintiff claimed that he would check his work emails on a company provided laptop while he was home in Mobile for a few days after every 10 days of working in North Dakota, the Appellate court found that the plaintiff’s work was principally located in North Dakota as his presence at the job site was required to do the essential functions of his job, and that his being contacted about a job position over the phone was not sufficient to establish that a contract for hire was made in Alabama.
Brewton Area YMCA v. Lanier, No. 2150914 (Ala. Civ. App. Mar. 17, 2017) is an interesting causation case where the substantial evidence that was affirmed on appeal came almost exclusively from the plaintiff’s testimony. The trial court awarded permanent total disability benefits after the plaintiff testified that she fractured both of her hips from tripping over a credenza at work. She further testified that she hit her head in the fall and could not remember many of the details about how the incident occurred. The employer presented medical testimony that the bone breaks were outward, which was not consistent with the plaintiff falling into a credenza, suggesting that the plaintiff’s fall was idiopathic due to her weight and pre-existing bone structure. The employer also produced evidence from a nearby co-worker witness who testified that the plaintiff did not strike her head. The employer also testified that the plaintiff did not report the injury as work related initially. The plaintiff testified that she did not report it as worker’s compensation because she thought worker’s compensation only applied to manual labor employees. Ultimately, the trial court ruled in the plaintiff’s favor, finding that the plaintiff’s testimony about the accident was credible, and this was affirmed on appeal noting the trial court’s wide discretion in weighing the credibility of the witnesses and evidence.
In SSC Selma Operating Co., LLC v. Fikes, No. 1160080 (Ala. May 19, 2017), the plaintiff tried to avoid an arbitration agreement governing her termination by asserting that her retaliatory discharge claim, in which she alleged she was fired because she filed a worker’s compensation claim, is a claim asserted under a special statute – the Alabama Workers’ Compensation Act – such that the arbitration agreement should not apply. The Alabama Supreme Court disagreed, reasoning that while the Act does carve out a retaliatory discharge claim in § 25-5-11.1, the remedies for the retaliatory discharge claim lie in tort and are not governed by the Alabama Workers’ Compensation Act. Accordingly, the Court found that the arbitration agreement should be enforced in this case.
Kirby v. Jack’s Family Rests., LP, No. 2160220 (Ala. Civ. App. June 16, 2017) is an appellate procedure case where the court found the Plaintiff’s appeal to be untimely because the appeal was taken from a non-final judgment. In this case involving several defendant’s including the employer and its worker’s compensation provider, among others, the defendants obtained a dismissal of the plaintiff’s tort of outrage claim against several of the defendants, which left a retaliatory discharge claim and worker’s compensation claim pending against the employer. The appellate court determined that the Order dismissing the tort-of-outrage claim was not “final” because this claim was “closely intertwined” with the allegations made the basis of the retaliatory discharge claim and might result in “repeated appellate review of the same underlying fact.” As such, the court ruled that plaintiff’s appeal was untimely and dismissed the appeal.
Wyatt v. Baptist Health Sys., No. 2160280 (Ala. Civ. App. July 21, 2017) is another case dealing with causation – here medical causation. The Court of Civil Appeals affirmed a trial court’s judgment in favor of the employer where the employee failed to prove medical causation by substantial evidence. Here the employer presented evidence from two physicians which tended to show that the plaintiff’s alleged repetitive trauma injury was not related to her employment. The employee appealed on the grounds that she also presented testimony from a third doctor finding that her alleged condition was caused by her repetitive job duties. Plaintiff reasoned that because she also presented medical testimony at trial and because Alabama’s worker’s compensation laws should be liberally construed in favor of the injured worker, the trial court should have ruled in her favor. Not surprisingly, the appellate court found that testimony from the two physicians presented by the defendant constituted “substantial evidence” sufficient the trial court’s determination and affirmed the trial court’s judgment.
In Bailey v. Jacksonville Health & Rehab. Ctr., No. 2160350 (Ala. Civ. App. July 21, 2017), the appellate court reversed and remanded a summary judgment entered in favor of the employer finding that there were issues of disputed fact. This case involved an employee’s allegations that she contracted scabies on the job and subsequently developed a psychological disorder from contracting scabies. In support of its motion for summary judgment, the defendant presented evidence from one physician, who indicated that the plaintiff definitively did not have scabies. However, the plaintiff presented medical records showing that two prior physicians had diagnosed her with scabies. Furthermore, because scabies would be considered a physical injury, the plaintiff also had sufficient grounds to allege subsequent psychological injury. Accordingly, because there was a dispute between the testimony elicited by the employer from one physician and the medical records of the plaintiff’s previous treating physicians, the appellate court found that there were genuine issues of material fact such that summary judgment was not proper in this case.
Saarinen v. Hall, No. 116066 (Ala. Sep. 1, 2017) involved a plaintiff’s claim pursuant to § 25-5-11(c)(2) that his employer willfully removed a safety device which resulted in his injuries. The plaintiff argued his injuries sustained from an old saw on his employer’s premises could have been prevented had the employer replaced the old saw with a newer, safer saw that had been purchased and received by the employer before the date of accident, but that had not yet been installed. In this case the Alabama Supreme Court was not willing to stretch the legal definition of willful removal of a safety guard to a scenario where newer equipment is available on the premises but not yet in production.
Grieser v. Advanced Disposal Servs. Ala., LLC, No. 2190290 (Ala. Civ. App. Aug. 11, 2017) is an interesting procedural opinion regarding the various aspects of the “Return to Work” statute set out in Ala. Code § 25-5-57(a)(3)i. Shortly before trial, the employer filed a motion to exclude evidence of vocational disability reasoning that the employee returned to work making the same wages after his accident but was subsequently terminated due to his own misconduct. The employee moved to strike the employer’s motion based on the argument that the employer had not raised these issues as an affirmative defense in its answer. While the trial agreed with the employer and excluded vocational testimony, the Court of Civil Appeals partially agreed with the employee’s argument in reversing and remanding the case. The appellate court first noted that if the employee had, indeed, been working at the time of trial, such evidence would serve to exclude vocational evidence based on § 25-5-57(a)(3)i without the need of raising an affirmative defense, because the first sentence of the return-to-work statute is the mechanism for how a trial court is to calculate permanent partial disability benefits when the employee is back at work.
However, because the employee had been terminated before trial, and because the employer was attempting to assert one of the five exceptions that limit a trial court’s inquiry to physical impairment after an employee is no longer working making similar wages – namely subsection (iv) in which vocational testimony may be excluded in the event that the employee is not working if the employee was terminated for his own misconduct – this placed an affirmative duty upon the defendant to establish this defense by “clear and convincing” evidence. Ultimately the Alabama Court of Civil Appeals opined that the five subparts of § 25-5-57(a)(3)i are 5 separate defenses that are waivable – as affirmative defenses — if not sufficiently raised before a trial on the merits.
Ex parte W. Fraser, Inc., No. 2160814 (Ala. Civ. App. Sept. 15, 2017) addressed a common recurring issue with trial court orders not complying with section 25-5-88 of the Alabama Workers’ Compensation Act, requiring orders to contain “a statement of the law and facts and conclusions” of the trial judge. This case involved a compensability hearing where the employer contested, among other things, whether the employee sustained an on-the-job accident, and, if so, whether the employee had provided notice within 90 days. After the compensability hearing, the trial court issued an order requiring the employer to provide the employee with medical treatment so that medical causation could be further evaluated. This order made no mention of whether the employee sustained a compensable injury or whether the employee provided sufficient notice of an injury. Accordingly, because the trial order left out specific findings of fact and conclusions of law, the appellate court remanded the case for specific findings.
Ex parte Ampro Prods., No. 2160818 (Ala. Civ. App. Oct 13, 2017) is yet another opinion that reinforces the principle that a trial court’s findings based on substantial evidence will not be reversed on appeal. Here the employer petitioned the Alabama Court of Civil Appeals for a writ of mandamus to find that the trial court had committed reversible error by failing to issue sanctions against the employee for admittedly lying during his deposition. During the deposition, the plaintiff did not disclose the extent of prior medical treatment he had received for body parts alleged to be injured in his current worker’s compensation claim. The plaintiff admitted this upon cross examination at trial, but also tempered this with testimony that he could not recall the extent of his prior medical treatment at the time of his deposition. The trial court nonetheless ruled that the employee sustained a compensable injury, and in so ruling, noted in its Order that, despite the employee’s deposition testimony’s harm to his own credibility, the medical evidence supporting legal and medical causation for a new injury outweighed the plaintiff’s limited credibility. As such, the Court of Civil Appeals found that there was substantial evidence to support the trial court’s findings of compensability, and that the trial court did not commit error in failing to issue sanctions against the employee, in part, because of the employee’s testimony regarding his poor memory.
This case was not a complete loss for the employer, as the employer raised on appeal certain expenses that were taxed against it by the trial court. The Appellate court reversed several of the expenses that the trial court levied against the employer including mediation expenses. The employer argued that it and the employee agreed to split the cost of mediation at the time of mediation, therefore it was error for the trial court to tax this cost upon the employer. The appellate court agreed. The employer also cited prior case law finding that the cost of a private investigator to serve subpoenas is not a cost that can be taxed upon an opposing party. The appellate court also agreed with this. However, the costs of the employee’s vocational expert and costs of the deposition of the vocational expert were properly taxed to the employer upon the trial court’s discretion.