Workers Compensation Law Update April 2012

Workers Compensation Law Update April 2012 Sean C. Pierce Carr Allison Court of Civil Appeals of Alabama Maxim Healthcare Servs. v. Freeman, 2012 Ala. Civ. App. LEXIS 91 (Ala. Civ. App. April 13, 2012) The Alabama Court of Civil Appeals affirmed the trial court s judgment, holding there was substantial evidence to prove medical causation, because, despite evidence the employee experienced chronic back pain before the accident, the evidence indicated the employee s back pain was substantially more severe, and for the first time, debilitating following the employee s on-the-job accident. In 2004, Debra Freeman, a licensed nurse, began working for Maxim Healthcare Services, Inc. ( Maxim ), a nursing-referral agency. In December 2008, Freeman was working at a rehabilitation facility she had been referred to, when she injured her lower back, left-hip, and left-leg while moving a patient into a wheelchair. In April 2009, Freeman filed an action against Maxim seeking workers compensation benefits for her injuries. At trial, the parties stipulated Freeman s left hip and left leg injuries arose out of and in the course of her employment with Maxim, and that Freeman gave proper notice of those injuries. However, the parties disputed whether Freeman s back problems were related to her work accident. The medical records submitted at trial, showed Freeman was treated by several doctors from January 2009 to December 2009. During that time, she continuously complained of pain in her lower back, left hip and left leg. In October 2009, Dr. Michelle Turnley, Freeman s authorized treating physician, diagnosed Freeman with right-sided sciatica, which she indicated was preexisting. However, Dr. Turnley further stated she was sure that some of the sciatica was related to Freeman s December 2008 accident. Dr. Bruce Pava, Freeman s personal physician, testified he treated Freeman in 2004 for injuries she received in an automobile accident. He testified Freeman presented with a history of chronic, mild back pain, but that during the several occasions he saw her before the December 2008 accident in question, she never complained of low back problems. Dr. Pava further testified he saw Freeman in January 2009, at which time she complained of pain in her lower back since the December 2008 1

accident. Dr. Pava saw Freeman at least 10 more times before trial, and he testified Freeman consistently complained of pain in her lower back. The trial court entered a detailed judgment finding Freeman s December 2008 accident caused the chronic pain in her lower back or aggravated a pre-existing condition in her lower back. On appeal, Maxim argued Freeman failed to prove her December 2008 accident was the medical cause of her lower back symptoms. Maxim pointed out Freeman s authorized treating physician testified there was not a causal relationship between the December 2008 accident and Freeman s back injury. Maxim further argued Dr. Pava admitted his lack of qualifications to disagree with Freeman s authorized treating physicians, and deferred to her opinions and conclusions on that issue. After reviewing all of the evidence presented at trial, the Alabama Court of Civil Appeals held there was substantial evidence indicating Freeman s December 2008 accident caused or contributed to her lower back pain. In reaching this conclusion, the appellate court cited Freeman s testimony that she felt a sharp pain in her back immediately after she attempted to seat the patient in the wheelchair. Freeman also immediately sought treatment, and her medical records indicated she consistently complained of low back pain after the accident. Although Dr. Pava testified Freeman had chronic, mild back pain before the accident, he also testified Freeman did not complain of low back pain until he started treating her following the December 2008 accident. Dr. Pava further testified Freeman was fully able to perform her job at Maxim before the accident. Consequently, the appellate court found the evidence indicated Freeman s back pain was substantially more severe, and for the first time, debilitating following her December 2008 accident. This change in her symptoms and ability to work provided some support for a finding of medical causation. Additionally, the appellate court found that although Dr. Pava testified he would defer to the doctors in other specialties, he was never presented with a specific opinion contrary to his own regarding medical causation. Therefore, Dr. Pava s general deference to the other doctors for certain conclusions went to the weight of his testimony, not its admissibility. Although Maxim cited three cases in support of its contention that substantial evidence of medical causation was lacking, the appellate court found none of these cases applied. In the first case, Ex parte Southern Energy Homes, Inc., 873 So. 2d 1116 (Ala. Civ. App. 2003), the Alabama Supreme Court held a worker s testimony alone did not constitute substantial evidence of medical causation. However, the appellate court distinguished this case for two reasons: 1) none of the doctors stated with any degree of certainty that the worker s back condition was due to the workplace injury, and 2) in the nine months the worker s doctor treated her, the worker never mentioned or complained about an injury to her back. In Jackson Landscaping, Inc. v. Hooks, 844 So. 2d 1267 (Ala. Civ. App. 2002), the worker testified he did not begin to experience pain until 16 months after the accident he alleged caused his back injury. In addition, one treating doctor testified the worker s back injury was not related to his on-the-job accident, and another treating doctor testified there was only a probability there could have been a causal relationship between the two. In Valtex, Inc. v. Brown, 897 So. 2d 332 (Ala. Civ. App. 2004), there was no evidence indicating the worker experienced a sudden or traumatic event that could have served as the cause of the worker s alleged injuries, therefore the worker was required to produce clear and convincing evidence of medical causation. The only evidence relating the worker s pain to her employment was her testimony she did not begin to experience pain until working for the employer. Furthermore, the treating physician testified he could not say with any degree of medical certainty what the causes of her symptoms were. Therefore, the court concluded the worker s testimony alone was not sufficient to prove medical causation. In this case, the appellate court pointed out that unlike Valtex, this case involved a sudden or traumatic event Freeman s December 2008 accident. The appellate court also concluded Freeman s testimony alone would have been enough to constitute substantial evidence in this case, and Dr. Pava s testimony strengthened that contention. In sum, the appellate court found there was substantial evidence to support the trial court s finding that Freeman s back pain was caused or contributed to by her December 2008 on-the-job accident. Affirmed. 2

Mobile Airport Authority v. Etheredge, 2012 Ala. Civ. App. LEXIS 97 (Ala. Civ. App. Apr. 20, 2012) The Alabama Court of Civil Appeals affirmed the trial court s judgment finding the employee s claim for a back injury was not barred by the statute of limitations, because the back injury resulted from the employee s altered gait due to an earlier foot injury, for which a timely complaint had been filed; therefore the back injury was a successive compensable injury for which no notice to the employer was required and the back injury claim related back to the timely filing for the earlier foot injury. On March 31, 2006, Robert Etheredge was working for the Mobile Airport Authority ( MAA ), and was injured when a 300-poound manhole cover fell on his left foot. Initially, Etheredge treated with an orthopedic surgeon, and his foot healed without complication. Etheredge returned to work for five weeks beginning in May 2006, after which time he returned to his doctor, complaining of pain, swelling, and discoloration of his foot. He was referred to pain management, and after several sympathetic nerve blocks failed to provide more than temporary relief, Etheredge underwent surgery to implant a neurostimulator in his spine. Following the surgery, Etheredge completed a work-hardening program, and returned to work without restrictions in January 2007. Soon after returning to work, Etheredge claimed he started experiencing pain in his foot again, and began to favor his left foot and walk with a limp. Etheredge had previously been diagnosed with degenerative-disk disease, and started experiencing lower-back pain that became progressively worse, especially with the bouncing that occurred while he was driving a tractor to mow the grass at the airfield. In December 2007, while mowing grass on the tractor, Etheredge ran over a large hole. Etheredge claimed the jolt caused him searing pain, and he felt like the neurostimulator was ripped out of his spine. In January 2008, Etheredge underwent corrective surgery to reposition the device, but never returned to work after surgery. In September 2008, Etheredge underwent a Functional Capacity Evaluation ( FCE ) that placed him in the light physical demand category. In November 2008, Etheredge s pain management specialist performed a diskography of his lumbar spine, after which the specialist concluded the tractor accident had accelerated Etheredge s degenerative disk disease. The specialist also testified Etheredge s altered gait that resulted from the 2006 foot injury had combined with the 2007 jolt from the tractor accident to aggravate or accelerate his pre-existing disk disease. In August 2009, Etheredge filed a complaint seeking benefits for his 2006 foot injury. In March 2010, Etheredge amended his complaint, asserting he had suffered an injury to his back that had aggravated his preexisting degenerative-disk disease, which had combined with his 2006 foot injury to render him permanently and totally disabled. MAA acknowledged Etheredge had suffered a compensable injury to his foot, but denied it had any notice of Etheredge s alleged back injury, and claimed the back injury was barred by the statute of limitations. The trial court determined Etheredge suffered a foot injury in March 2006, and, as a consequence of favoring the injured foot, he developed an altered gait that contributed to his lower-back pain. The trial court also found Etheredge sustained a second work-related injury to his lower back in December 2007, of which MAA had received notice. Finally, the trial court determined Etheredge s foot injury and the traumatic jolt of the tractor accident, combined to cause an aggravation and acceleration of his preexisting degenerative-disk disease, thereby rendering him permanently and totally disabled. MAA raised three issues on appeal. First, MMA claimed Etheredge s back injury claim was barred by the statute of limitations. However, the Alabama Court of Civil Appeals affirmed the trial court s conclusion that the back injury was not time-barred, because it arouse out of the 2006 foot injury. MAA argued the back injury did not relate back to the foot injury because it was an entirely different kind of injury than the injury alleged in the complaint. MAA further argued it paid TTD benefits through June 3

2009 for Etheredge s foot injury, not his back injury, therefore the statute of limitations should not be extended to the back injury. The appellate court rejected these contentions and found there was substantial evidence to support the trial court s conclusion that Etheredge s back injury resulted from a combination of his altered gait, which was due to his 2006 foot injury and favoring his left foot and the trauma from the tractor jolt in 2007. The appellate court concluded that although Etheredge had not timely filed a claim for his back injury, he had filed a timely complaint for his foot injury and, by implication, for every natural consequence that flowed from that injury. The court cited Ex parte Pike Cnty. Comm n, 740 So. 2d 1080 (Ala. 1999), wherein it was noted that the general rule is when the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment. Because the 2006 foot injury was a contributing cause of Etheredge s back injury, the back injury was compensable as a consequence of the foot injury. As a result, Etheredge s back injury was not time-barred, because it was compensable as a part of his foot injury claim, and related back to the timely filing of his initial complaint. Second, MAA claimed there was not substantial evidence it had notice of the December 2007 tractor accident. Etheredge alleged he gave notice to his manager and MAA s workers compensation carrier, and that he was told the accident would be covered under his already claimed foot injury. MAA denied both of these allegations. The trial court determined Etheredge had given notice, citing the workers compensation carrier s payment for the corrective surgery following the tractor accident. Paying for the surgery gave the carrier actual notice of the accident, which removed the written notice requirement under the Alabama Workers Compensation Act. The trial court also noted MAA chose not to call the adjuster Etheredge claimed he spoke to over the phone, to testify at trial. A co-worker also testified he was present when Etheredge told his manager about the tractor accident, the day after it occurred. The trial court further noted that no notice of the tractor accident was even required, because MAA was already on notice of the foot injury. The appellate court held the above findings were supported by substantial evidence and supported by Alabama law. Lastly, MAA argued Etheredge s back injury was a cumulative-physical-stress disorder, and that he had failed to establish his claim by clear and convincing evidence, pursuant to 25-5-81(c), of the Alabama Workers Compensation Act. The appellate court concluded the trial court was presented with evidence from which it could have reasonably determined there was clear and convincing evidence establishing Etheredge developed an altered gait as a consequence of his foot injury. Ex parte Advantage Resourcing, Inc., 2012 Ala. Civ. App. LEXIS 99 (Ala. Civ. App. Apr. 20, 2012) The Alabama Court of Civil Appeals denied an employer s petition for a writ of mandamus, and confirmed the trial court s finding that the employee s slip-and-fall injury was compensable, because it was sustained while the employee was walking from his parked vehicle into work before working hours, and because the injury contributed to the employee s development of pain symptoms in his neck. On January 21, 2010, Hennon Hollinghead reported to work at a shop located at an industrial plant. Hollinghead entered the shop using a walkway running from a nearby parking lot. However, Hollinghead left his radio unit in his vehicle, so he returned to the parking lot to retrieve it. As he headed back to the shop on the walkway, Hollinghead slipped on a piece of PVC pipe, causing him to fall on his back and right side, which resulted in immediate and debilitating pain. At the time of the accident, Hollinghead was 72 years old. Hollinghead called for help on his radio unit, and was transported to a local hospital for treatment. After leaving the hospital, Hollinghead was initially sent for treatment with an industrial-medicine practitioner. However, the practitioner was unable to relieve Hollinghead s continued pain, so he was referred to Dr. William Patton. Dr. Patton initially believed the pain stemmed from arthritis. However, after undergoing an MRI, it was determined Hollinghead had foraminal stenosis and accumulated fluid in 4

his neck. Dr. Patton referred Hollinghead to Dr. Kevin Donahoe, who observed Hollinghead had symptoms potentially indicating pressure in the region of his spinal cord. Dr. Donahoe recommended a surgical procedure to decrease Hollignhead s pain by removing impinged vertebral disks in his spine, however his employer, Advantage Resourcing, Inc. ( Advantage ), would not authorize the procedure. After trial, the court entered an order directing Advantage to permit Hollinghead to undergo the procedure. The trial court found Hollinghead s slip-and-fall injury was compensable, because it occurred while Hollignhead was walking from his parked vehicle to his place of work, and contributed to the development of pain symptoms in his neck. On appeal to the Alabama Court of Civil Appeals, Advantage challenged the trial court s determination as to both legal and medical causation. First, Advantage contended Hollinghead s injury did not arise out of and in the course of his employment. The appellate court noted the test for legal causation requires the employee to establish a definite causal connection between the work and the injury such that the rational mind is able to trace the resultant personal injury to a proximate cause set in motion by the employment, and not by some other agency. After viewing the evidence in a light most favorable to Hollinghead, the appellate court determined legal causation did exist due to the following factors: (1) at the time of the injury Hollinghead was returning to the shop where he worked, after having gone to his vehicle to retrieve a two-way radio, which no party disputed was a tool of his work; (2) the walkway Hollinghead used was also used by his co-workers; (3) a PVC pipe was allowed to remain in close proximity to the walkway used by the workers when reporting to work each day; and (4) Hollinghead s fall occurred at a time and place he would reasonably be expected to have reported in furtherance of the employment relationship. Advantage also contested medical causation. The appellate court agreed with the trial court that lay testimony, such as that of Hollinghead, could be considered along with medical testimony, as proof of medical causation. This is because the causation test finds it application in the overall substance and effect of the evidence as a whole, when viewed in context of all lay and expert evidence. At trial, Hollinghead testified he experienced debilitating pain immediately after the fall, and that he continued to experience pain that rendered him unable to resume working afterwards. Although Hollinghead admitted he saw a doctor for neck pain in 2002, he testified he had no neck pain since 2002, until after the fall in 2010. Dr. Donahoe testified the fall made Hollinghead s neck worse and at least contributed to the necessity of the surgery. Although the industrial-medicine practitioner testified Hollinghead s neck injuries were not new and were from an earlier condition, he also admitted the fall at least contributed to Hollinghead s post-fall medical problems. Based on this evidence, the appellate court concluded that although Hollinghead suffered from degenerative stenosis before the injury, there was substantial evidence indicating the condition was latent until Hollinghead s fall caused debilitating neck pain, which necessitated the surgery recommended by Dr. Donahoe. The appellate court found the totality of the lay and expert evidence in the case showed more than a mere possibility of medical causation. Supreme Court of Alabama Workers Compensation Cases No Supreme Court cases at this time. 5