Alabama Workers' Comp Blawg

Prior Injury can Become New Injury in Alabama when Permanently Aggravated

The Alabama Court of Civil Appeals recently released its decision in the case ofIn re: Henry Riley v. Reed Contracting Services, Inc. (Ala. Civ. App. January 29, 2016). In its opinion, the Court denied the petition for writ of mandamus filed by Reed Contracting Services, Inc., who was requesting that an Order from the Madison County Circuit Court be vacated. The trial court’s order directed Reed Contracting, Inc. to authorize surgeries, rejected that maximum medical improvement (MMI) had been reached, and further ordered the reinstatement of temporary total disability benefits (TTD) to include accrued benefits from the date the surgeries were initially denied.

Riley was an employee of Reed Contracting Services, Inc., who reportedly fell at work injuring his knees in 2012. Both knees also showed evidence of pre-existing arthritic changes. His authorized treating physician advised that the plan of care would not resolve osteoarthritic pain, which had been aggravated by his work injury. Riley declined further treatment at that time. 

Two years later, in 2014, Riley returned to his authorized treating physician, who opined that the current knee complaints were not related to his 2012 injury, placed him at MMI with no impairment rating and released him to return to work full duty.

Riley requested a panel of four physicians, pursuant to §25-5-77(a), Ala. Code 1975. The new authorized treating physician opined that Riley had pre-exisiting arthritic changes in his knees, but that the 2012 accident made the condition worse and more symptomatic, which then warranted bilateral knee-replacement surgery. Reed Contracting Services, Inc., denied authorization for the knee replacement surgeries.

The trial judge found that, prior to the fall, Riley was capable of working as a tire technician, but had not been able to following his fall. The Court also found that both of Riley’s authorized treating physicians believed that the arthritic condition was aggravated as a result of the fall. The trial court held that the 2012 work-related fall caused a "permanent aggravation" of Riley’s arthritic condition and that the knee-replacement surgeries were medically necessary. It also held that the assigned MMI date was invalid, and ordered Reed Contracting Services, Inc., to reinstate TTD to include the payment of accrued benefits. 

The Alabama Court of Civil Appeals held that substantial evidence supported the trial court’s finding that Riley’s fall produced a "permanent aggravation" of his arthritic condition and was therefore a contributing cause of the need for the recommended surgeries; making those surgeries compensable under the Act. It further held that substantial evidence supported the trial court’s finding that Riley had not reached MMI; and that the trial court had not erred when it ordered the reinstatement of benefits to include accrued benefits, from when the surgeries were denied.

MY TWO CENTS:

In cases involving a preexisting degenerative condition, the key issue is whether or not the aggravation is permanent. In many cases, you are simply dealing with a flare up which can be treated and returned to baseline. When that happens, the employer is only responsible for paying benefits during the flare up period. It is important to remember that returning to baseline does not necessarily mean returning to the same condition as before the work accident. A degenerative condition by definition gets worse over time. Therefore, returning to baseline simply means returning the employee to the condition he or she would now be in had the work accident not occurred.

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This blog submission was prepared by Karen Cleveland, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Cleveland by e-mailing her at kcleveland@fishnelson.com or by calling her directly at 205-332-1599.