Alabama Workers' Comp Blawg

In Alabama, Continued Pain After One Workers’ Compensation Injury Does Not Necessarily Equate To A Recurrence

In Alabama, Continued Pain After One Workers’ Compensation Injury Does Not Necessarily Equate To A Recurrence

On September 17, 2021, the Alabama Court of Civil Appeals ruled on an appeal filed by United-Johnson Brothers of Alabama, LLC involving a workers’ compensation claim filed by Luther Phillips. The claim also involved a third-party complaint in which United-Johnson Brothers of Alabama sought to bring in the administrator and workers’ compensation fund that had covered a prior injury. In this case, the Jefferson County Circuit Court, Bessemer Division, ruled that the subject case involved an aggravation as opposed to a recurrence and, therefore, the employer and its new workers’ compensation carrier were responsible for the claim and the employee was entitled to medical benefits as well as indemnity and vocational benefits. The employer appealed this decision, and the Alabama Court of Civil Appeals ultimately affirmed the Trial Court’s judgment.

The employee had suffered a back injury while working for United-Johnson Brothers of Alabama, LLC in October of 2016. At the time of that injury the employer’s workers’ compensation was handled by Employer’s Claim Management and Alabama Self-Insured Workers’ Compensation Fund. That claim involved a surgery by Dr. Martin Jones in March of 2017. The employee was ultimately placed at MMI and returned to work with the employer on June 29, 2017 and was working full duty without restrictions. However, the employee did continue to suffer pain and treat with Dr. Jones. The employee was also seen by Dr. Michelle Turnley. In December of 2017 the employee settled his October 2016 workers’ compensation claim closing indemnity benefits, but medical and vocational benefits were left open. Even after the settlement the plaintiff continued to treat with Dr. Turnley reporting pain. In December of 2018, as well as January of 2019, he sought treatment from Dr. Turnley as a result of continued pain and he even felt that there was a change in pain and requested an MRI to be performed. However, prior to that MRI the plaintiff suffered another incident on the job on February 12, 2019, while lifting the lift gate on a delivery truck. The employee testified that he felt a pop and immediate sharp pain in his back.

At trial the parties stipulated that if the Court found this to be a recurrence that Employers Claim Management and Alabama Self-Insured Workers’ Compensation Fund would be responsible for future medical treatment. In the alternative, the parties agree that if it was deemed to be an aggravation that the employer and its new workers’ compensation carrier would be responsible for medical treatment as well as indemnity benefits. The Court of Appeals focuses on the fact that Dr. Jones had released the employee to return to work without restrictions and that he was working full duty. They also noted that prior to February 2019 that he worked full duty despite having ongoing pain. This was over a 19-month period. It was understood that while he continued to have pain, he was able to do his job and was not having to miss work as a result of his back injury. It was not until after the February 2019 incident that he was ultimately placed at light duty and then unable to continue his job because he was not able to work 100%. Dr. Jones testified that it was reasonable that lifting the gate could have aggravated his injury. Dr. Jones also testified that he was wanting the employee to get back to baseline, but he just did not think that was going to happen. There were also diagnostic differences noted and it was indicated that there was decreased range of motion after the February 2019 incident as a result of worsened pain. It was also noted that the symptoms had spread after the February 2019 incident. The Court of Appeals stated that an aggravation is when the second injury contributes independently to the final disability, whereas a recurrence is when the second injury does not contribute even slightly to the causation of the disability which would even include a back strain followed by a period of continued symptoms culminating in a second period of disability precipitated by a lift or exertion. In this case, there was no transcript from the virtual trial and no statement of evidence. As a result, the Court of Appeals stated that they were bound to presume that there was evidence to support the Trial Court’s order and that presumption was conclusive. The employer argued that their position was a matter of law and the plaintiff’s testimony was irrelevant. The Court of Appeals, upon considering that argument stated that an employee can aggravate a prior condition even if they are still having pain. They stated continued pain does not preclude an employee from proving they suffered an aggravation. The Court of Appeals further stated that they have no way to know what the plaintiff said at trial about his pain or other symptoms, the extent, the location, and, therefore, they must find that what the Trial Court decision as to the employee’s testimony was accurate. Then they also considered the deposition of Dr. Jones, as well as medical records that showed the February 2019 incident could have caused new damage to the physical structure of the employee. They again pointed out the fact that there was a pop felt and that pop was worse than prior. The Court of Appeals again referred to the fact that the plaintiff had been able to work full duty prior to the February 2019 incident. As a result, the Court of Appeals affirmed the Trial Court’s ruling that the employee suffered an aggravation as opposed to a recurrence.

ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish, Nelson & Holden, 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. 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.