In a staggering blow to the hard working and trusting citizens of Alabama, the Alabama Pre-paid Affordable College Tuition Plan (PACT) has announced that it is likely to be unable to fund tuition for its beneficiaries who purchased a “guaranteed” plan.  The Trustees of the PACT fund, led by State Treasurer Kay Ivey, has lost more than $350 million and is now is attempting to dodge State responsibility for paying tuition for the thousands of families that have bought into the PACT program.  We believe the PACT program is an agency and instrumentality of the State of Alabama and is responsible for its contractual obligation under the PACT contract. We have consulted a finance expert who agrees that the PACT contracts failed to identify any market risk or that the PACT contract was an investment in the stock market as required by law.  PACT contract owners have significant legal rights they may wish to protect as soon as possible.

The following is the Alabama Court of Civil Appeals opinion regarding Jim Phillips’ workers’ compensation case for occupational heart disease arising from his employment as a firefighter for the City of Hoover.  Jim Phillips, a veteran firefighter, suffered from a heart attack that left him totally disabled.  I tried this case in Shelby County, Alabama and was able to both clarify and establish the law regarding occupational heart disease for  firefighters.

City of Hoover v. James Ernest Phillips

Rel: May 07, 2004

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2003-2004

2021023

Appeal from Shelby Circuit Court
(CV-01-733)

PITTMAN, Judge.

James Ernest Phillips (”the employee”), a firefighter formerly employed by the City of Hoover (”the City”), sued the City in the Shelby Circuit Court (fn1) in July 2001 seeking benefits under the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala. Code 1975 (”the Act”); the employee claimed to have suffered an injury to his cardiovascular system arising out of and in the course of his employment or, in the alternative, claimed to have suffered from cardiovascular disease that was occupational in nature and therefore compensable under the Act. The City answered the complaint, denying its pertinent allegations and asserting that the employee had not given the City notice of his injury. After an ore tenus proceeding, the trial court entered a judgment in favor of the employee, stating findings of fact and conclusions of law and determining both that the employee was permanently and totally disabled as a result of a work-related injury and that the employee suffered from occupational heart disease. The City’s postjudgment motion for a new trial was denied, and the City appeals.

The City raises three issues on appeal: (1) whether the City had proper notice of the employee’s claim; (2) whether causation by the employee’s employment was demonstrated; and (3) whether the employee suffered from an occupational disease. This court will not reverse a judgment based on the factual findings of the trial court in a workers’ compensation case if those findings are supported by “substantial evidence.” Ala. Code 1975, § 25-5-81(e)(2). “Substantial evidence” is “‘evidence of such weight and quality that fair- minded persons in the exercise of im-

partial judgment can reasonably infer the existence of the fact sought to be proved.’” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala. 1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989)). Pursuant to that principle of review, “‘the trial court’s findings on disputed evidence in a workers’ compensation case are conclusive,’” and this court must not “‘weigh the evidence before the trial court.’” Ex parte Golden Poultry Co., 772 So.2d 1175, 1176 (Ala. 2000) (quoting Ex parte Ellenburg, 627 So.2d 398, 399 (Ala. 1993), and Edwards v. Jesse Stutts, Inc., 655 So.2d 1012, 1014 (Ala. Civ. App. 1995)); see also Ex parte Holton, [Ms. 1012143, June 13, 2003] ___ So.2d ___, ___ (Ala. 2003). Moreover, we must “consider the evidence in a light most favorable to the findings of the trial court.” Ex parte Staggs, 825 So.2d 820, 822 n.1 (Ala. 2001).

The record reveals the following facts. The employee worked for the City for 23 years as a firefighter with a paramedic certification until June 2000. The employee was diagnosed with heart disease in late 1999 after undergoing an arteriogram; after the employee underwent surgery to have a stent placed in a coronary artery, his treating physician, Dr. Larry E. Dye, returned the employee to work with no restrictions, although he was prescribed nitroglycerin. The employee was medically recertified by the City’s fire-department physician, and he resumed his normal work routine thereafter.

At approximately 8:00 a.m. on June 2, 2000, the employee reported to work pursuant to a “twenty-four on, forty-eight off” schedule (i.e., the employee remained at a fire station for a 24-hour work shift, including on-duty sleep periods, that was to be followed by 48 hours off work). The employee performed paperwork and undertook continuing-education lessons during the first hours of his shift, and then he went to sleep.

At approximately 10:00 p.m. that evening, a fire-alarm call was received at the employee’s fire station. The employee testified that when the fire station receives such a call when he is asleep, he must awaken, dress in protective gear, and board a fire engine with his crew within 30 seconds. On this occasion, after arriving at the scene of the fire, the employee reported to a division chief at the bottom of a slight incline, and then began walking uphill to rejoin his company; however, as the employee walked up the hill, he began to experience burning chest pains. The employee completed his climb and informed his crew, as they reboarded the fire engine, that he was experiencing chest pains. Although he was uncertain why he was experiencing chest pains, the employee apparently initially believed that those pains could have been caused by particularly spicy chili that he had consumed in the firehouse that evening because his symptoms did not resemble the pain he had previously experienced in late 1999. Upon returning to the station, the employee submitted to a blood-pressure examination; ingested a nitroglycerin tablet, a dose of aspirin, and an antacid; and returned to bed after his symptoms subsided.

At approximately 2:00 a.m. on the morning of June 3, 2000, the fire station received another emergency call arising from a fall suffered by an elderly resident of an extended-care facility. The employee’s fire company responded to the call and transported the resident for medical treatment. The employee reported similar chest-pain symptoms after awakening and boarding the fire engine on this occasion; upon his return to the fire station, he repeated his medications, which reduced his chest pains considerably, and he filled

out a written report of his fire crew’s response to the emergency call before again falling asleep.

The employee completed his work shift at 8:00 a.m. on June 3, 2000, at which time he reportedly was continuing to experience low-grade pain symptoms. After leaving work, the employee went to the home of one of his friends to help construct wooden outdoor steps along an incline. However, while the employee was at his friend’s home, his chest-pain symptoms again set in. When nitroglycerin did not alleviate the employee’s symptoms, an emergency call was placed on the employee’s behalf; the responding personnel connected the employee to a heart monitor that revealed that the employee was actually undergoing a myocardial infarction (i.e., a heart attack). The employee was then transported to a local hospital emergency room for immediate heart-catheterization treatment; although the employee’s occluded coronary artery was opened and his heart was stabilized, he contracted a severe infection caused by staphylococcus bacteria, requiring his hospitalization for over three weeks.

While the employee was being treated in the hospital emergency room, he was visited by the City’s fire chief, Tom Bradley, and by a co-employee, Rusty Lowe. Although he was under medication at the time of that visit, the employee testified that he remembered “very clearly” that during their hospital visit he had said to Fire Chief Bradley that he had had no doubt that the heart attack had started while he was ascending the incline during his first fire call on June 2, 2000; he added that he and Fire Chief Bradley had discussed a fire-department training film that had involved a firefighter succumbing to a heart attack while administering aid to a patient during an emergency call. In response, according to the employee, Fire Chief Bradley directed the employee not to worry; he also indicated to the employee that “everything would be handled” with respect to workers’ compensation. The employee also testified that first notices of firefighters’ injuries to the City would typically be completed by a firefighter’s supervisor when the injured firefighter was unable to return to work after an injury to complete a notice form, and there was evidence that Fire Chief Bradley had completed injury-notice forms on behalf of the employee in the past.

Upon recovering from his infection, the employee underwent successful cardiac-bypass surgery performed by Dr. John Richardson, Jr.; however, the employee was ultimately instructed by Dr. Dye that he should not return to work for the City as a firefighter. Although the employee apparently believed he was receiving workers’ compensation benefits during his extended convalescence, he was informed in November 2000 that he had actually been receiving payment for his accumulated leave time and that other firefighters had donated such time to him so that he could qualify for retirement. In December 2000, the employee signed a “first notice of injury” form that one of his co-employees had prepared with respect to his heart attack; he also sought disability benefits at that time and applied for a service retirement, which was granted. The employee has been determined by the Social Security Administration to be totally disabled, and no issue has been raised by the City concerning the permanency or the totality of the employee’s disability.

As we have noted, the employee’s workers’ compensation claim was not based solely upon the proposition that his heart attack was a discrete work-related injury compensable pursuant to Article 3 of the Act; rather, the employee alternatively contended that his heart disease was

an “occupational disease” compensable under the provisions of Article 4 of the Act, and the trial court also found in favor of the employee on that alternative contention. If a workers’ compensation claimant asserts entitlement to permanent-total-disability benefits under both Article 3 and Article 4 of the Act, and the trial court subsequently awards permanent-total-disability benefits (as in this case), this court will affirm the trial court’s judgment if the evidence supports an award under either article, even if an award would not be appropriate under the other article. See Bidermann Indus. Corp. v. Peterson, 655 So.2d 997, 999 (Ala. Civ. App. 1994) (”Our conclusion that [the employee] did not suffer from an occupational disease, however, is not dispositive of this appeal because we find that recovery was proper under the ‘accident’ provisions of the [A]ct.”).

Like we did in Bidermann, we first address the issue of whether compensation was proper based upon Article 4. The City contends that the trial court erred in determining that the employee’s heart disease giving rise to his heart attack was an occupational disease under Article 4. It cites § 25-5-81(c), Ala. Code 1975, which generally provides for a “clear and convincing evidence” standard of proof with respect to cumulative-stress injuries, as authority for its argument that the employee did not demonstrate causation by “clear and convincing evidence.” However, this court has previously held that the “clear and convincing evidence” standard does not apply to occupational-disease claims under Article 4 because Article 4 treats death or disability caused by an occupational diseases as an “injury by accident.” Drummond Co. v. Moore, 730 So.2d 222, 224 (Ala. Civ. App. 1998); see also 1 Terry A. Moore, Alabama Workers Compensation § 9:18.50 (Supp. 2003) (agreeing that “clear and convincing evidence” standard set forth in § 25-5-81(c) does not apply to occupational-disease claims). The employee’s contention that the “preponderance of the evidence” standard of proof and the “substantial evidence” standard of appellate review apply to his occupational-disease claims is, therefore, correct. See Ala. Code 1975, §§ 25-5-81(c) and 25-5-81(e)(2).

Under Article 4 of the Act, for a condition to be classified as an “occupational disease,” that condition or ailment “must be ‘due to hazards in excess of those ordinarily incident to employment in general and [be] peculiar to the occupation in which the employee is engaged.’” Avondale Mills, Inc. v. Weldon, 680 So.2d 364, 366 (Ala. Civ. App. 1996) (quoting Ala. Code 1975, § 25-5-110(1)). Also, to prove entitlement to compensation, a claimant “must prove causation or aggravation of an existing condition.” Avondale Mills, 680 So.2d at 366 (emphasis added). Stated another way, under Alabama law, “[a]n occupational disease is not compensable if it is not caused or aggravated by the nature of the employment.” Id. We further note that recent authority indicates that cardiovascular conditions ultimately giving rise to a heart attack are more properly treated, as a legal matter, as “occupational diseases” under Article 4 rather than as nonaccidental injuries under Article 3. See Safeco Ins. Cos. v. Blackmon, 851 So.2d 532, 536-37 (Ala. Civ. App. 2002).

Was the employee’s heart disease an “occupational disease” that was, at least, aggravated by his employment? There was substantial evidence that the employee’s particular work as a firefighter exposed him to more sudden, stressful conditions than those ordinarily incident to employment in general and that those conditions contributed to the development of his heart disease. According to the employee, the symptoms of his heart at-

tack first manifested themselves on the evening of June 2 and the early morning of June 3, 2000, while he was working a 24-hour shift. On two separate occasions during that shift, he was awakened and was required to dress and equip himself in full fire gear in less than a minute in order to board a fire truck that was responding to an emergency call. Dr. Dye described the chest pains experienced by the employee during that shift as the “beginning symptoms” of a heart attack; Dr. Dye specifically identified immediate abrupt increases in heart rate and blood pressure arising from responding to fire alarms, such as those to which the employee testified, as stressors on the heart and the vascular system.

Although Dr. Dye testified that heart disease is generally caused by a buildup of arterial plaque, a process that begins during childhood, he added that “it progresses at different rates in different people according to their risk factors.” Dr. Dye opined that the employee’s work as a firefighter was a “stressful” and “high risk” occupation and that the employee’s occupation was a “significant part” of his risk of developing heart disease and suffering a heart attack; he agreed that the inhalation of fumes and smoke would also be a risk factor for developing heart disease. Dr. Dye based his opinions, in part, on his medical observations of other firefighters.

In addition, Dr. Richardson agreed that a person working as a firefighter, where sudden, intense energy demands are required, is at a higher risk of having a heart attack than people employed generally. Fire Chief Bradley testified to the effect that he considered the employee’s heart condition to be related to his employment as a firefighter; Bradley identified two other individuals who had served under his command who had suffered heart attacks while on duty, and the employee testified that firefighters suffering heart attacks had been “a fairly common event” during his 23-year tenure of employment. Finally, as the trial court judicially noticed, an Alabama statute governing firefighters’ compensation specifically identifies conditions or impairments of health arising from “heart disease” as being “occupational diseases” of firefighters. (fn2) Ala. Code 1975, § 11-43-144(a)(3); see also Chrysler Corp. v. Henley, 400 So.2d 412, 417 (Ala. Civ. App. 1981) (Wright, P.J., concurring specially) (citing § 11-43-144 for the proposition that “firemen are regularly exposed as a general group to the conditions contributing to heart disease”). We cannot conclude that the trial court erred in determining that the employee’s heart disease was an occupational disease that was aggravated by his employment as a firefighter such that compensation under Article 4 of the Act was proper.

Although our conclusion with respect to compensability under Article 4 is arguably dispositive of the appeal under Bidermann, we will, out of an abundance of caution, turn to the employee’s alternative theory - that his heart attack was a compensable nonaccidental injury. Noting that the employee’s first written notice of injury was not prepared by fire-department personnel and signed by the employee until early December 2000, the City contends that the employee did not afford adequate notice under the Act with respect to his nonaccidental-injury theory. The City relies on that portion of the Act, Ala. Code 1975, § 25-5-78, providing that

an injured employee “shall give or cause to be given to the employer written notice of the accident” made the basis of the employee’s claim for workers’ compensation benefits; (fn3) that section also provides that “no compensation shall be payable unless written notice is given within 90 days after the occurrence of the accident.” We summarized many of the pertinent principles of law concerning effective notice under the Act in Davis v. Paragon Builders, 652 So.2d 762 (Ala. Civ. App. 1994):

“The purpose of written notice is to advise the employer that the employee received a specified injury, in the course of his employment, at a specified time, and at a specified place, so that the employer may verify the injury by its own investigation. Written notice is not required where it is shown that the employer had actual notice of the injury. Oral notice is sufficient to give the employer actual notice. Like written notice, oral notice imparts to the employer the opportunity to investigate and to protect itself against simulated and exaggerated claims. Even with oral notification, the employer must be notified that the employee was injured while in the scope of his employment. The fact that an employer is aware that the employee suffers from a malady or has medical problems is not, by itself, sufficient to charge the employer with actual notice. ‘If, however, the employer has some information connecting work activity with an injury, it may be put on reasonable notice to investigate further.’ Knowledge on the part of a supervisory or representative agent of the employer that a work-related injury has occurred will generally be imputed to the employer. The employee has the burden of proving that the employer had notice or knowledge of the injury.”

Davis, 652 So.2d at 764 (citations omitted).

As we noted in Davis, an employer may properly be found to be on reasonable notice when the employer, or a supervisory agent of the employer, becomes aware of information connecting an employee’s work activity with an injury to the employee. See also Ex parte Slimp, 660 So.2d 994 (Ala. 1995) (reversing this court’s judgment of reversal based upon lack of notice where evidence appeared in record that employee notified his supervisor that he had hurt his back on the day he was injured). The trial court’s judgment properly concluded that the employee’s having informed Fire Chief Bradley, just after the employee’s hospitalization, of the original onset of his symptoms in the line and scope of his employment during an emergency fire call sufficiently conveyed “reasonable notice” of a connection between the employee’s work activity and his subsequent injury so as to defeat the City’s contention that notice was not given. Davis, 652 So.2d at 764.

To the extent that the trial court awarded workers’ compensation benefits based upon a determination that the employee’s heart attack was a nonaccidental injury under Article 3 of the Act, we conclude that the trial court’s judgment is supported by substantial evidence. The City has conceded in its initial brief to this court that legal causation of the heart attack by the employee’s work was established; as to the employee’s nonaccidental-injury theory, the City addressed only the issue of medical causation in its initial appellate brief. (fn4) As to medical causation,

much of the evidence we have detailed above provides support for the proposition that the employee’s heart attack is causally related to the cardiovascular stress he was subjected to in responding to the two emergency calls on June 2 and 3, 2000. While Dr. Richardson opined that the employee’s heart attack did not occur until the employee had left his employment for the day on June 3, Dr. Dye testified that the employee’s heart attack actually began on June 2 during his work shift and that the precipitating events would have been the fire alarms and the stress on the employee’s body. Substantial evidence indicates that the employee’s work was in fact a “contributing cause” of his heart attack so as to render the City liable to pay workers’ compensation benefits on a nonaccidental-injury theory. See Ex parte Trinity Indus., 680 So.2d at 270.

Based upon the foregoing authorities, and viewing the evidence in a light most favorable to the findings of the trial court, Ex parte Staggs, 825 So.2d at 822 n.1, we conclude that the trial court’s judgment is due to be affirmed.

AFFIRMED.

Yates, P.J., and Crawley, J., concur.

Thompson, J., concurs in the result, without writing.

Murdock, J., concurs in the result, with writing.

MURDOCK, Judge, concurring in the result.

The main opinion concludes its analysis by holding that the trial court correctly awarded benefits under Article 3 of the Workers’ Compensation Act. In this regard, the main opinion relies upon the so-called “nonaccidental injury theory” articulated in Ex parte Trinity Industries, Inc., 680 So.2d 262 (Ala. 1996). I agree with the result reached by the main opinion because I agree that, under our Supreme Court’s holding in Ex parte Trinity Industries, the trial court’s holding in this regard is due to be affirmed.

I do not agree with the alternative ground for affirming the trial court set out in the main opinion, however. Specifically, I do not agree that we could affirm the trial court’s judgment based on Article 4 of the Workers’ Compensation Act.

Article 4 of the Workers’ Compensation Act addresses the issue of compensation for employee’s suffering from occupational diseases. Section 25-5-110(1) of Article 4 defines an occupational disease in regard to the causal relationship that must exist between the employee’s working conditions and the disease itself:

“A disease arising out of and in the course of employment, including occupational pneumoconiosis and occupational exposure to radiation as defined in subdivisions (2) and (3), respectively, of this section, which is due to hazards in excess of those ordinarily incident to employment in general and is peculiar to the occupation in which the employee is engaged but without regard to negligence or fault, if any, of the employer. A disease, including, but not limited to, loss of hearing due to noise, shall be deemed an occupational disease only if caused by a hazard recognized as peculiar to a particular trade, process, occupation, or employment as a direct result of exposure, over a period of time, to the normal working conditions of the trade, process, occupation, or employment.”

The City argues that the record does not support a finding that the employee suffers from an occupational disease under this causation-oriented definition. I agree.

The occupational disease at issue is coronary artery disease. The record indicates

that myocardial infarctions, or heart attacks, occur as a result of that disease. They are not the occupational disease itself. See Safeco Ins. Cos. v. Blackmon, 851 So.2d 532 (Ala. Civ. App. 2002). Insofar as compensability under Article 4 is concerned, therefore, the main opinion’s focus on whether the stress of events of June 2 and 3, 2000, might have triggered the employee’s heart attack is misplaced. Instead, the question is whether the record supports the trial court’s finding that the employee’s job as a firefighter caused him to develop coronary artery disease. I find that it does not.

___________________
Footnotes:

1. Although the City’s seat of government is located in Jefferson County, the City’s territorial limits include land located within Shelby County, and a workers’ compensation action may therefore be brought against the City in either venue. See Ala. Code 1975, §§ 6-3-11 and 25-5-88, and Ex parte City of Haleyville, 827 So.2d 778 (Ala. 2002).

2. Citing Byrd v. State ex rel. Colquett, 212 Ala. 266, 102 So. 223 (1924), the City contends in its reply brief that the trial court could not take judicial notice in the absence of a request on the part of counsel that it do so; however, Rule 201(c), Ala. R. Evid., provides that a court “may take judicial notice whether requested or not.”

3. We note that pursuant to § 25-5-123, Ala. Code 1975, the provisions of § 25-5-78 do not apply to occupational-disease claims under Article 4 of the Act.

4. Notably, the City did not reply to the employee’s arguments regarding medical causation in its reply brief.

By C. Brian Davidson

            The calculation of workers’ compensation benefits has confused, baffled, and eluded attorneys since Alabama adopted the Workers’ Compensation Act in 1909.  The confusion is created by the various types of workers’ compensation benefits allowed by the statute and the plethora of exceptions and combinations of benefits allowed by the statutes and interpretations thereof by our appellate courts.  Those of us who primarily practice workers’ compensation litigation often do not calculate the injured employee’s benefit’s correctly which can cause the employee to be underpaid or the employer to pay too much in benefits.  Therefore, it is extremely important for the practitioner to have at least a rudimentary understanding of the calculation of benefits to properly represent our clients.

            The first step in calculating workers’ compensation benefits is to determine the injured employee’s average weekly earnings.  The employee’s average weekly earnings is the employee’s average gross earnings for the fifty-two weeks preceding the date of injury.  If the employee has not been employed by the employer paying compensation for fifty-two weeks then the employee’s average weekly earnings is calculated according to the average weekly earnings of a similarly situated employee who has been employed for fifty-two weeks.  The employee’s average weekly earnings is often confused with the term average weekly wage which is the average gross wage of an employee in the State of Alabama and is determined annually by the Department of Industrial Relations. 

            The next term the practitioner should be familiar with is “weekly benefit” which is the maximum amount of workers’ compensation benefits the employee is entitled to per week.  The employee is entitled to 66 2/3 percent of his average weekly earnings per week subject to the maximum and minimum caps established by Ala. Code § 25-5-68 (1975).

            There are five types of workers’ compensation benefits allowed by the Alabama Workers’ Compensation Act pursuant to Ala. Code § 25-5-57 (1975): (1) Temporary Total Disability Benefits  (2) Temporary Partial Disability Benefits  (3) Permanent Partial Disability Benefits  (4) Permanent Total Disability Benefits and  (5) Death Benefits.  Each of these five types of benefits are calculated differently according to the statutes.  This article will address and explain how to calculate benefits for each of these types of disability.

Temporary Total Disability Benefits

            The calculations for Temporary Total Disability Benefits are set forth in Ala. Code § 25-5-57(a)(1).  Temporary Total Disability benefits are paid to an employee who is injured and is unable to return to work for a period of time.  Temporary Total Disability benefits are the simplest workers’ compensation benefits to calculate.  The employee is entitled to 66 2/3 of his average weekly earnings subject to the aforementioned maximum and minimum limitations for the period of time which the employee is unable to return to work.

Temporary Partial Disability Benefits

            The calculations for Temporary Partial Disability are set forth in Ala. Code § 25-5-57(a)(2).  Temporary Partial Disability benefits are to be paid when the injured employee is able to return to work but is not able to earn the same amount of money.  This commonly occurs when the employee must miss time for doctor’s appointments, according to doctor’s orders, physical therapy, must leave due to pain, or is placed on “light” duty at a lower wage.  The employee’s benefits are paid according to what the employee’s average weekly earnings at the time of injury and what the employee is able to earn after the injury.  Therefore, the practitioner must determine what the employee is able to earn in his/her partially disabled condition.  This can be accomplished by the employee’s earnings since the date of injury or by expert medical and/or vocational testimony.  The employee is entitled to 66 2/3 percent of the difference between his/her average weekly earnings at the time of injury and his/her average weekly earnings or earning ability since the date of injury.  The employee’s benefits are subject to the aforementioned maximum and minimum limitations and are payable for a total of 300 weeks.

Permanent Partial Disability Benefits

            Once a temporary injury is deemed permanent by the employee’s physicians, commonly referred to as maximum medical improvement, temporary benefits cease and the employee may be entitled to permanent workers’ compensation benefits.  Permanent Partial Disability  benefits are the most common permanent benefits paid and the most difficult to calculate pursuant to Ala. Code § 25-5-57(a)(3).  Permanent Partial Disability is paid when the injured employee has sustained a permanent injury but is able to sustain gainful employment.  The practitioner must first determine whether the injured employee has sustained a scheduled or a non-scheduled permanent injury.  Scheduled injuries are injuries to specific parts of the body which have each been assigned a total number of weeks for which workers’ compensation benefits are payable.  The schedule is set forth at Ala. Code §25-5-57(a)(3)a.  The amount of compensation for a scheduled injury is calculated according to the extent(percentage) of the disability.  The extent of disability (or permanent impairment rating) is most often proved by utilizing the treating physician’s permanent impairment rating or the results of a functional capacity evaluation but can also be proved by the testimony of the injured employee.  The practitioner must remember that the judge is not bound by expert medical testimony.  The judge may take into consideration all of the evidence and testimony to adjudicate the employee’s extent of disability.  Once the extent of disability is determined, the benefits are calculated by multiplying the percentage of disability by the number of weeks allowed for the scheduled injury to arrive at the number of weeks payable.  The number of weeks payable is then multiplied by the employee’s weekly benefit or $220.00 whichever is less. 

            Non-scheduled injuries are those permanent injuries not set forth in Ala. Code § 25-5-57(a)(3)a.  The most common non-scheduled injuries are back injuries and those injuries which result in a significant disability to the body as a whole.  Non-scheduled injuries are calculated according to the extent that the injury has reduced the injured employee’s ability to earn income pursuant to Ala. Code § 25-5-57(a)(3)(g).  The extent of disability is most often proved by expert vocational and medical testimony, functional capacity evaluations, the testimony of the injured employee, and the difference between the earnings prior and subsequent to the employee’s injury.  However, if the injured employee returns to work at the same or greater amount of remuneration, no vocational evidence is admissible to prove the extent of disability but instead the court must rely solely upon the extent of physical disability.  If the employee received any weekly Temporary Total Disability or Temporary Partial Disability benefits, the number of weeks paid are subtracted from the total number of Permanent Partial Disability benefits available.  The amount of benefits payable for a non-scheduled Permanent Partial Disability injury is limited by Ala. Code § 25-5-68 to a maximum of 300 weeks and $220.00 per week.  Once the extent of disability is determined, the benefits are calculated by multiplying the percentage of disability by the maximum number of weeks allowed (300) to arrive at the number of weeks payable.  The number of weeks payable is then multiplied by the employee’s weekly benefit or $220.00 whichever is less.

Permanent Total Disability Benefits

            The employee is entitled to Permanent Total Disability benefits if the employee is unable to return to suitable gainful employment, meaning employment of similar kind and of similar remuneration, due to his/her on-the-job injury pursuant to Ala. Code § 25-5-57(a)(4).  Permanent Total Disability benefits are calculated the same way as Temporary Total Disability benefits with the exception that Permanent Total Disability benefits are paid for the remainder of the employee’s life or until such time as the employee returns or is able to return to suitable gainful employment and is determined by the Court to not be Permanently Totally Disabled.  There are no deductions made from Permanent Total Disability benefits for Temporary Total Disability or Temporary Partial Disability benefits which have been paid.

Death Benefits

            The last category of workers’ compensation benefits are Death benefits which are set forth in Ala. Code § 25-5-57(a)(5) and Ala. Code § 25-5-60 through Ala. Code § 25-5-67.  The employer must first pay the expenses of the deceased employee’s burial up to $3,000.  Workers’ compensation Death benefits are calculated according to the number of the deceased employee’s surviving dependents at the time of his or her death.  If the deceased employee has no surviving dependents, the employer must make a lump sum payment of $7,500 to the estate of the deceased employee.  If the deceased employee has one total dependent that person is entitled to 50% of the employee’s average weekly earnings for a maximum of 500 weeks subject to the minimum and maximum limitations of Ala. Code § 25-5-68.  If the deceased employee has more than one total dependent at the time of death, those dependents are entitled to 66 2/3 percent of the employee’s average weekly earnings for a maximum of 500 weeks subject to the minimum and maximum limitations of Ala. Code § 25-5-68.  A partial dependent is also entitled to Death benefits to the extent of the employee’s contribution to the partial dependent’s total income.  The employer also receives a credit for the number of weeks of benefits paid to the employee prior to his/her death.

Present Value

            A common problem practitioners have when dealing with workers’ compensation calculations is that of determining the present value of the employee’s future benefits.  The present value of the employee’s future benefits (Permanent Partial, Permanent Total, and Death) is needed to determine the employee’s attorney’s fees and to calculate the value of a lump sum settlement.  The calculation of the present value of Permanent Total Disability benefits is more complicated than those for Permanent Partial Disability and Death benefits.  The first step in calculating the present value of Permanent Total Disability benefits is to determine the employee’s life expectancy by utilizing the Standard Ordinary Mortality Table which is available from the Alabama Department of Industrial Relations.  The Mortality table is listed in terms of years so a calculation to transfer the figure to weeks will be necessary.  This is done by multiplying the number of years listed in the Mortality Tables by 52.2 weeks.  The life expectancy of the employee in the terms of weeks is then reduced to present value by utilizing the Table of Present Values which is available from the Department of Industrial Relations by finding the employee’s life expectancy in the “Number of Weeks” column.  Then look to the figure listed in the “Present Value of $1.00″ column to the right of the “Number of Weeks” column.  Multiply the figure listed in the “Present Value of $1.00″ column by the employee’s weekly benefit to determine the present value of the employee’s Permanent Total Disability benefits.  To calculate the present value of Permanent Partial Disability or Death benefits, simply locate the number of weeks of benefits payable in the “Number of Weeks” column in the Table of Present Values and locate the figure in the “Present Value of $1.00 column.  Multiply the figure listed in the “Present Value of $1.00″ column by the employee’s weekly benefit (or $220.00 whichever is less) to determine the present value of the employee’s Permanent Partial Disability benefits.

            The practitioner who intends to litigate a workers’ compensation case must become fully aware of the correct way to calculate the benefits which are to be paid.  Those who attempt to calculate workers’ compensation benefits without a complete understanding of the statutes and, more importantly, the case law are almost destined to err on behalf of their clients.  This article does not go into the plethora of exceptions to the rules, combinations of calculations usually necessary, or the case law which interprets, defines, and explains the various types of disability.  Workers’ compensation litigation, like most areas of the legal profession, is becoming increasingly specialized due to the complexity of the Alabama Workers’ Compensation Act and the opinions rendered by our honorable appellate courts.

By C. Brian Davidson

            One of the most difficult and complex types of workers’ compensation cases is that which involves mental injuries.  These cases are difficult to litigate for both the employee and the employer due to the often complex issues of medical and legal causation and extent of vocational impairment. However, the numbers of workers’ compensation claims in which a mental injury or disorder is involved is on the increase.  The medical community is increasingly diagnosing injured workers with mental disorders such as depression and post traumatic stress disorder as a result of the injured workers’ accident and/or subsequent pain and disabilities in conjunction with the physical injuries suffered by the worker.  The appellate courts are affirming trial court awards of permanent and total disability which included mental disorders and disabilities and physical disabilities.  See Sanders v. Green, 726 So. 2d 715 (Ala. Civ. App. 1998); Elite Transportation Services v. Humphreys, 690 So. 2d 439 (Ala. Civ. App. 1997).  Those cases in which the injured worker has permanent physical disabilities as well as contributing mental disorders will not be discussed in this article.  This article will also not address the separate issue of emotional distress claims in workers’ compensation outrage cases.  This article addresses those instances wherein a worker suffers a physical injury and develops a mental neurosis or disorder which is, in and of itself, disabling.

            Upon first impression in the case of Fruehauf Corp. v. Prater, 360 So. 2d 999 (Ala. Civ. App. 1978), the Court of Civil Appeals was called upon to decide whether mental injuries were compensable pursuant to the Alabama Workers’ Compensation Act.  In Fruehauf, the injured employee suffered severe burns to a large portion of his body when an aluminum melting furnace exploded.  The injured worker claimed total disability due to a depressive neurosis following the accident.  The Court of Civil Appeals sought the guidance of persuasive Minnesota case law.  The Supreme Court of Minnesota held that, “Under our decisions it is clear that traumatic neurosis is compensable if it is the proximate result of the employee’s injuries and results in disability.” Hartman v. Cold Spring Granite Co., 67 N.W.2d 656 (1954).  The Alabama Court of Civil Appeals followed Minnesota case law finding for the Plaintiff and held that,

 ”If it is established by legal evidence that an employee has suffered a physical injury or trauma in the line and scope of his employment and he develops a neurosis as a proximate result of such injury or trauma which neurosis causes or contributes to an occupational or physical disability, such disability is compensable.” Fruehauf supra at 1001. 

             The Courts of this state have consistently applied the Fruehauf standard to the issue of compensability of mental disabilities.  See ABEX Corporation v. Coleman, 386 So. 2d 1160, 1162 (Ala. Civ. App. 1980) (employee suffered depressive reaction as a result of injury to back); Bickerstaff Clay Products Co. v. Dixon, 444 So. 2d 390, 391 (Ala. Civ. App. 1983) (employee suffered disabling neurosis as a result of injury to back);  Armstrong v. Lewis and Associates Construction Co., Inc., 451 So. 2d 332, 334 (Ala. Civ. App. 1984) (injured employee suffered hypochondriacal neurosis as a result of back injury); Allen v. Diversified Products, 453 So. 2d 1063, 1065 (Ala. Civ. App. 1984) (employee suffered conversion hysteria as a result of injury to hand); Federal Mogul Corp. v. Campbell, 494 So. 2d 443, 445 (Ala. Civ. App. 1986) (employee suffered schizophrenia as a result of minor injuries to neck, head, and back); Magouirk v. United Parcel Service, 496 So. 2d 55, 57 (Ala. Civ. App. 1986) (employee’s anxiety neurosis as a result of harassment and pressure held not compensable); Transco Energy Co. v. Tyson, 497 So. 2d 184, 186 (Ala. Civ. App. 1986) (employee suffered mental injury as a result of back injury); Jones v. Pickens County Health Care, 589 So. 2d 754 (Ala. Civ. App. 1991) (employee found not to have disabling mental injury as alleged); City of Montgomery v. Kittler, 621 So. 2d 295, 297 (Ala. Civ. App. 1993) (employee suffered from conversion neurosis as result of back strain); Ex parte Bryant, 644 So. 2d 951 (Ala. 1994) (employee suffered from neurosis as a result of groin injury and loss of testicle); Taylor v. Mobile Pulley & Machine Works, 714 So. 2d 300 (Ala. Civ. App. 1997) (employee suffered schizoaffective disorder as a result of fractured hip).

            The mental disability of the employee must be precipitated and/or produced by, or a proximate result of a physical injury.  The Court of Civil Appeals has denied workers’ compensation benefits for mental injuries based upon this premise on multiple occasions.  In Magouirk v. United Parcel Service, 496 So. 2d 55, 57 (Ala. Civ. App. 1986), the Court of Civil Appeals, after an extensive review of the term “injury” in the Alabama Workers’ Compensation Act, denied benefits to an employee claiming mental injuries as a result of workplace harassment and pressure stating,

“Therefore, we hold that the Alabama’s Workmen’s Compensation Act does not extend coverage to mental disorders or injuries that have neither produced nor been proximately caused by some physical injury to the body.” Id. at 58; See also Belcher v. Pinkerton’s Inc, 519 So. 2d 529 (Ala. Civ. App. 1987) (employee denied benefits for mental injuries as a result of overwork and pressure); Rogers v. Bruno’s Inc., 554 So. 2d 1034 (Ala. Civ. App. 1989); J.C. Penny Co. v. Pigg, 544 So. 2d 169 (Ala. Civ. App. 1989); Marley Erectors, Inc. v. Rice, 620 So. 2d 31, 33 (Ala. Civ. App. 1993) (employee granted benefits for depression caused by physical trauma or injury); Nix v. Goodyear Tire & Rubber Company, 624 So. 2d 641 (Ala. Civ. App. 1993) (employee denied benefits for mental injury resulting from death of co-employee); Goolsby v. Family Dollar Stores of Alabama, 689 So. 2d 104, 106 (Ala. Civ. App. 1996) (employee denied benefits for post traumatic stress disorder not precipitated by a physical injury); Ex parte M & D Mechanical Contractors, 725 So. 2d 292 (Ala. 1998) (employee denied benefits as workplace injury did not cause mental injury).

             The Court of Appeals further explained its holding in Magouirk while denying benefits to an employee claiming mental injuries as a result of stress in J.C. Penny Co. v. Pigg, 544 So. 2d 169 (Ala. Civ. App. 1989) stating,

‘”It is well settled that only those injuries which are caused by an “accident” arising out of and in the course of one’s employment are compensable under the Act.  We have also held that to be compensable under the Act, the “accident” must actually produce some physical injury or harm to the body.’” Id. at 170.

             In Rogers v. Bruno’s Inc., 554 So. 2d 1034 (Ala. Civ. App. 1989), the Court of Civil Appeals denied benefits to an employee claiming mental injuries as a result of practical jokes and harassment stating,

“Therefore, for the employee to be entitled to recover on this instance, she must demonstrate a causal connection between her alleged disability and a physical injury to her body.  This she has not done” Id. at 1035; See also City of Montgomery v. Kittler, 621 So. 2d 295, 297 (Ala. Civ. App. 1993); Herchenhahn v. Amoco Chemical Company, 688 So. 2d 847 (Ala. Civ. App. 1997).

             In the 1992 amendments of the Alabama Workers’ Compensation Act, the legislature reacted to Magourick and its progeny and amended the definition of the term “injury” found in Ala. Code § 25-5-1(9) to state: “Injury does not include a mental disorder or mental injury that has neither been produced nor been proximately caused by some physical injury to the body.”

            The Court of Civil Appeals also addressed the danger of an injured employee falsifying his mental state.  In Fruehauf, the Court of Civil Appeals stated that,

“We recognize the possible difficulty of establishing the existence of or the precipitating cause of any neurosis or psychic disorder.  We recognize that there is a distinct possibility of attempted malingering in the absence of objective symptoms.  We believe, however, that the difficulty of proof may be overcome by the use of expert medical testimony and/or objective evidence.  We also believe that malingering will be minimized by the vigilance of a discerning trial judge.”  Fruehauf, supra at 1001; see also Armstrong, supra at 334; Ex parte Bryant, supra at 953

             The Courts have also applied the standard of proving disability by expert testimony in physical injury cases to mental injuries.  The mental disability does not have to be proved by expert testimony.  Fruehauf, supra at 1002, Allen, supra at 1065; Federal Mogul, supra at 445; Ex parte Bryant, supra at 952-53.  The Court of Civil Appeals stated in Federal Mogul,

“Although this court has previously recognized that psychic injuries which occur as the proximate result of an accident suffered by an employee while in the line and scope of his employment are compensable, we have specifically refused to require that the existence and effect of such mental disability may be expert medical opinion.”

 ”Given the beneficent and remedial purposes of the Workmen’s Compensation Act, we hold that in appropriate circumstances, an award may be made for mental disability even though medical testimony relating to its existence or cause is inconclusive, or even non-existent.” Id. at 445.

             Often, the injured employee has been treated for a mental condition prior to his/her occupational injury.  The issue of preexisting and latent mental conditions was specifically addressed by the Court of Civil Appeals in Taylor v. Mobile Pulley & Machine Works, 714 So. 2d 300 (Ala. Civ. App. 1997).  The Court of Civil Appeals stated in its opinion,

‘”The trial court, while noting that Taylor had previously been hospitalized for a nervous breakdown, specifically found that Taylor “had performed his job [for Mobile Pulley] very satisfactorily” for 23 years.  Thus, Taylor’s latent schizoaffective disorder may not be considered in the determination of his workers’ compensation benefits.  Because Taylor’s latent schizoaffective disorder had not affected the performance of his job duties before the injury, his latent condition, activated by the injury, was compensable.’” Id. at 302.

             The Taylor Court relied on the well established law in Alabama that, “No preexisting condition is deemed to exist for the purposes of a workers’ compensation award if the employee was able to perform the duties of his job prior to the subject injury” to affirm the award of permanent and total disability to the injured employee based upon a mental injury.  Jackson v. Comptronics Corp., 679 So. 2d 1079 (Ala. Civ. App. 1996); Holmes v. Goldkist, 673 So. 2d 449 (Ala. Civ. App. 1995); Blue Bell, Inc. v. Nichols, 479 So. 2d 1264 (Ala. Civ. App. 1985).  The Court also relied on the well established law that, “If a preexisting injury is aggravated by a work related injury, the injury is compensable even though the accident may not have caused the same injury in a normal person.” G.C. Colyer & Co. v. McAdams, 562 So. 2d 1326 (Ala. Civ. App. 1994); Goldkist v. Hobbs, 650 So. 2d 914 (Ala. Civ. App. 1994)(affirming benefits for the injured employee’s mental injuries); Armstrong, supra at 335 (employee had been previously committed for severe depression but no medical testimony linked hypochondriacal neurosis with preexisting condition). 

            In closing, counsel for both parties should thoroughly review the injured worker’s medical records.  It is very common for a general practitioner, orthopedic specialist, or neurologic specialist to diagnose the employee with a mental disorder and prescribe anti-depressant medications.  Furthermore, it is extremely important to remember that pain management should include psychiatric evaluations and treatment.  In my opinion, both parties should seek independent psychological evaluations of the injured worker to properly assess causation and the extent of the worker’s vocational disability due to the mental disorder.  The employee’s attorney should be cognizant that a mental disorder can very easily alter a claim from permanent partial disability to permanent and total disability.  The employer’s attorney should not overlook a mental disorder as he/she will need to be prepared to defend that claim before the Court.  Practically speaking, this would be difficult to do without expert testimony. 

            Mental injuries are unfortunate for both the employee and employer.  The employee does not understand why he/she cannot return to work if “nothing is broken”.  The employer does not understand why it should be responsible for the mental state of an employee.  I believe that more and more injured workers will be diagnosed with mental disorders as medical science and the field of psychology advances.  Therefore, the practitioner, both plaintiff and defendant, must be aware and knowledgeable of the law concerning these unfortunate types of occupational injuries.

We recently opened our new offices in Helena, Alabama to better serve the needs of our clients as well as expand the legal services we are able to offer.  We take pride in giving each of our clients the personal service that their legal need deserves.  From a will or new corporation to representation in Workers’ Compensation, Social Security disability, divorce or a criminal matter we are here to zealously represent you!

We represent all Social Security, Workers’ Compensation and most other civil cases on a contingency fee basis so there is no out-of-pocket expenses or fees unless we recover for you.  Our hourly and flat fee rates are reasonable and we now accept payment via Pay Pal for your convenience.  Helena City Employees and Helena Elementary, Helena Intermediate and Helena Middle School faculty and staff receive discounts on most of their legal needs.

We invite you to stop by any time you are in Old Towne Helena to discuss your legal needs or just to say hello.

C. Brian Davidson
Attorney at Law
3965 Helena Road
Post Office Box 267
Helena, AL  35080
Office Phone: 205-685-4822
Facsimile:       888-802-5102