Alabama Workers' Comp Blawg

Alabama Court of Civil Appeals Addresses Compensability of Injury First Documented Several Months After Accident

On September 9, 2016, the Alabama Court of Appeals released its decision in Kennamer Bros., Inc. v. Stewart, in which it affirmed the Circuit Court of Marshall County determination that Stewart’s shoulder injury was compensable. In that case, the truck driver-employee was involved in a rollover accident and sustained multiple injuries. However, the primary issue was whether Stewart’s right shoulder injury was compensable. Stewart had been airlifted to a hospital after the accident, where he was treated for head injuries. He underwent several procedures to remove shards of glass from his scalp and was prescribed antibiotic and pain medications. After he came off of pain medications for his head injury, he then noticed pain his right shoulder and was later diagnosed with a rotator cuff tear. However, Stewart did not report his alleged right shoulder pain to his treating physician until nearly five months after the alleged accident. The physician testified that while it would be very unusual for a person with a rotator cuff tear to not experience immediate pain, it was possible that pain from more severely injured parts of his body and/or pain medications administered for others injuries could mask the symptoms of a rotator cuff tear. The physician further testified that Stewart’s symptoms were consistent with his self-reported medical history and were consistent with a rotator cuff injury. Kennamer Brothers failed to present evidence of any subsequent accident or injury that would explain Stewart’s symptoms.

Stewart was ultimately released to return to work in February 2013, but was unable to drive for Kennamer Brothers because the employer could not secure insurance coverage for him due to the fact that he had been involved in several automobile crashes. In January 2014, Stewart went to work for a different employer.

Based on the evidence, the trial court found that Stewart’s right shoulder injury was compensable, and awarded TTD benefits through January 2014. Kennamer Brothers appealed. The Alabama Court of Appeals noted that the employee’s burden of proof is to produce substantial evidence tending to show that the alleged accident occurred and that it caused or was a contributing cause of the injury. The Court of Appeals held that Stewart met this burden of proof, and noted that symptoms that first appear a few hours, days, or even months after a traumatic event may nonetheless properly be deemed causally related if no intervening event has occurred and no alternative medical explanation is provided for the presence of symptoms.

The Court of Appeals acknowledged that TTD benefits may not be owed if the injured employee is able to work and earn his pre-injury wages, but he is prevented from working for reasons unrelated to his workplace injury. However, the Court of Appeals found that the trial court had a sufficient basis on which to determine that the reason for the termination of Stewart’s employment (i.e. his uninsurability) was related to the injury he sustained. The Court noted that had Stewart not been involved in the crash, he probably would not have been an impossibly high insurance risk. Based on this, the Court of Appeals stated it could not conclude that Stewart failed to show a causal link between his injury and his diminished earning capacity, and affirmed the portion of the order awarding TTD benefits through January 2014.

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About the Author

This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond 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. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.