Alabama Workers' Comp Blawg

The Court of Civil Appeals Addresses Statute of Limitations, Notice and Standard of Proof Dealing With a Foot Injury, Successive Back Injury and Traumatic Back Injury

On April 20, 2012, the Alabama Court of Civil Appeals released its decision in the case of Mobile Airport Authority v. Robert Etheredge affirming the trial court’s permanent and total disability award. The employee had suffered a scheduled injury to his foot on March 31, 2008. The foot injury resulted in a dual electrode intraspinal neurostimulator being implanted. The employee was then returned to work in January of 2007. The employer did not dispute the compensability of the foot injury.

It was further alleged that after returning to work in January of 2007, an altered gait as a result of the foot injury, and bouncing created by the use of a tractor to mow the grass for the employer resulted in the aggravation of a pre-existing degenerative low back condition. The employee also alleged that in December of 2007, while working through the pain in his back and foot, he was operating the tractor and ran over a hole causing him to experience searing pain in his low back. It was determined by the authorized treating physician, who implanted the stimulator, that the jolt from this incident caused the stimulator leads to migrate out of the epidural space preventing it from providing any pain control. The stimulator was reimplanted and the employee continued various forms of treatment but never returned to work. The authorized treating physician opined that the altered gait and traumatic jolt of the 2007 tractor accident combined to aggravate or accelerate the pre-existing degenerative disc disease. An IME was done and the opinion was given that the degenerative disc disease was natural wear and tear and neither the implantation nor the dislodging of the stimulator could have aggravated the degenerative condition. The IME doctor did agree that the 2007 tractor jolt could have aggravated the pre-existing condition.

On August 12, 2009, the employee filed a complaint seeking benefits for a September 2007 foot injury. On March 19, 2010, the employee amended the complaint asserting that the foot injury occurred on March 31, 2006 and after which he suffered an injury to his back in the latter part of 2007 or early 2008 that aggravated his preexisting degenerative disc disease. The employer answered and acknowledged the March 31, 2006 foot injury but denied notice of the second alleged occurrence causing the aggravation of the pre-existing disc disease.

The trial court ruled that the employee suffered a compensable foot injury that resulted in an altered gait and contributed to the low-back pain. The trial court further noted that the employee had a second work-related injury to his low back in December of 2007, of which the employer received notice. The trial court ruled that the employee’s pre-existing degenerative disc disease in his low back was aggravated or accelerated by the combination of the altered gait, created by the foot injury, and the traumatic jolt in December of 2007.

On appeal the employer asserted the following issues: 1. The back injury was barred by the applicable statute of limitations, 2. The finding that the employer had notice of the 2007 tractor accident was not supported by substantial evidence and 3. The back injury was a cumulative stress injury and compensable only if proven by clear and convincing evidence that it arose out of and in the course of the employment.

1. Statute of Limitations

The employer argued that the December 2007 back injury was a separate injury and did not relate back to the original complaint. Therefore, when it was asserted on March 19, 2010 for the first time the statute of limitations had run. The trial court ruled that the back injury resulted from not only the 2007 incident but also the altered gait created by the foot injury. Due to the altered gait and resulting back injury being the natural consequence of the foot injury, the back injury was not barred even though the December 2007 incident occurred more than 2 years before the claim was asserted.

The Court of Appeals ruled that while the claim seeking compensation of the 2007 incident was not timely asserted, the 2006 foot injury was also a contributing cause of the back injury. Due to evidence presented at trial establishing that the back injury was also caused by the foot injury, i.e. the altered gait, the back injury claim was not barred. The Court of Civil Appeals stated that it was immaterial that the authorized treating physician stated that had it not been for the 2007 tractor incident the rate of degenerative change would not have been the same because the altered gait only had to contribute to the aggravation or acceleration.

2. Notice

The Court of Civil Appeals agreed with the trial court on two issues dealing with notice in this matter:

(1) That by telling the workers’ compensation adjustor handling the foot injury about the 2007 tractor incident and then the surgery to reimplant the stimulator being approved as a result of the incident, there was sufficient evidence to support a finding that the employer’s representative had actual knowledge of the 2007 work related tractor incident that resulted in injury.

(2) That Alabama law supported the trial court’s finding that notice of the tractor incident was not required because the employer had notice of the foot injury and evidence supported that the altered gait, resulting from the foot injury, contributed to the aggravation of the pre-existing degenerative disc disease.

3. Burden of Proof for Cumulative Stress Injuries

The employer argued that because the employee alleged the back injury was the result of an altered gait, it was a cumulative stress disorder and subject to the clear and convincing evidence standard, which was not met. The Court of Civil Appeals agreed with this argument but stated that the burden was met. The Court of Civil Appeals pointed out that 3 witnesses testified that the employee did not have a limp (two treating physicians and the FCE evaluator) while 6 different sources of evidence supported that the employee did have a limp (the employee, 1 treating physician’s testimony, 2 treating physicians’ medical records, the employee’s supervisor and the trial court’s observations at trial). The Court of Civil Appeals stated that the trial court could have resolved the conflict by determining that the witnesses who did not see the limp only saw the plaintiff early in the day or while seated, when the limp was not present or was less pronounced.

In regards to the burden of proof and medical causation, the Court of Civil Appeals stated there was no conflict that the altered gait had developed as a natural consequence of the foot injury and was a contributing cause of the disc derangements. As a result, the Court of Civil Appeals opined that the finding was based upon evidence that would produce a firm conviction in the mind of the trial court as to each element of the claim and a high probability that the conclusion is correct, as required with the clear and convincing evidence standard.