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Holden: Court Rules Return to Work May Not Prevent Vocational Disability

By Joshua G. Holden

Monday, October 28, 2019 | 333 | 0 | min read

On Oct. 4, the Alabama Court of Civil Appeals released its opinion in AMEC Foster Wheeler Kamtech Inc. v. Jimmy Chandler, wherein it upheld the trial court’s finding that the employee suffered from a vocational disability as a result of his on-the-job back injury.

Joshua G. Holden

Joshua G. Holden

The evidence at trial was that the employee was working on or about Nov. 16, 2015, when he felt pain in his back while lifting a pipe. This job, according to the plaintiff, involved welding and being able to get into awkward positions and perform precision welding.

The employee was ultimately diagnosed with a protrusion at C5-6, a protrusion at T7-8 and a protrusion at L4-5, along with degenerative changes in the spine. The plaintiff was given lifting restrictions, and his authorized treating physician performed conservative measures including epidural injections.

After missing several appointments, the plaintiff was placed at maximum medical improvement on or around June 14, 2016. The employer had placed the employee at light duty, and the employee left his employment with AMEC on Jan. 11, 2016.

At that time he was not receiving any benefits because light duty was being provided. The plaintiff did go back to treat with the authorized treating physician at a subsequent date, and the doctor noted that he had improved significantly and should need additional treatment only once or twice a year.

Note that the employee did work with other employers on and off after his employment with AMEC. However, at the time of the trial, he was not working. These jobs included working as a supervisor of other welders who would inspect welds but did not perform welding himself mostly.

There were some tasks in which he had do a little bit of mechanic work, but again it was mostly supervising. The employee testified that it was nothing like the precision and specialty welding that he had to perform that involved getting in unusual positions with AMEC.

The employer appealed the decision, asserting that the return-to-work provision should have applied because the employee had returned to work for another employer earning the same or greater wages. The trial court ruled that the return-to-work statute did not apply because the employee was no longer working at the time of the initial disability determination by the court and, therefore, had not returned to work, as that term was used in the return-to-work statute.

The court of appeals went on to point out that for the purposes of this argument, it did not really have to address it because the employer did not argue and/or calculate correctly the employee’s average weekly wage with the other employers so it can accurately be compared to his wages with AMEC.

The court noted that the employment with the other employers was on and off, and in order to determine the average weekly wage, the employer on appeal had to secure the gross wages from the other employers and then divide that by the number of weeks worked.

The court of appeals pointed out that AMEC was required to do this and it was not the court’s job to make that calculation in order to determine if the employee was earning the same or greater wages. Therefore, the court of appeals ruled that AMEC failed to demonstrate that the employee actually returned to work making a higher average weekly wage, and thus could not find the trial court in error.

AMEC also argued that the employee admitted that after long hours, his back felt worse and, therefore, that the last injurious exposure rule should apply, which would preclude the employee from receiving workers’ compensation benefits from AMEC.

The court of appeals stated that the employee’s testimony that pain worsened by his subsequent employment activities supported the conclusion that he suffered a recurrence of the symptoms of his injury and not that he suffered a secondary injury to his back that contributed independently to the final disability. As a result, the last injurious exposure rule would not apply because there was a recurrence, as opposed to a new injury.

AMEC also appealed, arguing that the MMI date asserted by the trial court was not supported by the evidence. The court of appeals noted that the trial court is not bound by a physician’s determination of an MMI date. The trial court stated that MMI is the date in which the claimant reaches a plateau and there is no further medical care or treatment that could be anticipated to lessen the employee’s disability.

The court noted that a doctor testified that the employee had improved since June 2016, and in February 2018 had reached a point where he would have to have epidural injections a couple of times a week. Therefore, the court of appeals stated that the trial court’s conclusion that MMI was reached on Feb. 2, 2018, was supported by the evidence.

Joshua G. Holden is a partner of Fish Nelson & Holden LLC, headquartered in Birmingham, Alabama. This entry is republished, with permission, from the firm's Alabama Workers' Comp Blawg.


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