Alabama Court of Civil Appeals Considers Last Injurious Exposure Rule
Office Max, Inc. v. Academy, Ltd. - Released May 17, 2013
This case stems from a workers’ compensation case involving an employee of Office Max. The employee claimed that in 2002 and 2005 she injured her knees and shoulders, respectively, while working in the line and scope of her employment with Office Max. On three occasions, June 2008, March 2010 and July 2010 the employee sought orders compelling Office Max to provide medical treatment, which were granted. Office Max responded to the second motion arguing that the employee suffered a new injury, or aggravation of a preexisting injury, to her knees and shoulders while working for her new employer, Academy, Ltd. Pursuant to the Last Injurious Exposure Rule, Office Max argued that Academy was responsible for the medical treatment and any disability benefits related to the current treatment and injury. Office Max brought Academy into the action and Academy responded with a motion for summary judgment. Academy argued that the employee suffered a recurrence of the injuries she originally incurred while employed by Office Max. At the same time the employee filed a fourth motion to compel Office Max to provide further surgery on the left knee. The trial court granted the Motion for Summary Judgment and the Motion to Compel.
Under the Last Injurious Exposure Rule liability falls on the employer or carrier covering the risk at the time of the most recent injury with a casual connection to the disability. In order to determine this, the court must decide if the second injury is a new injury, an aggravation of a prior injury, or a recurrence of an old injury. If deemed a recurrence, then the first employer/carrier is responsible. However, if the second injury is a new injury or aggravation of the first injury, the second employer/carrier is responsible. A recurrence is found to have occurred when the second injury does not even slightly contribute to the disability. This is supported when the employee suffers injury, followed by a period of work with continued symptoms and then suffers a second event causing a second period of disability. An aggravation is deemed to have occurred when the second injury contributed independently to the final disability.
In regards to the shoulders, prior to starting employment with Academy in 2007, the employee suffered from tendinitis in both shoulder that lead to a diagnoses of a rotator cuff tear in the right shoulder. This lead to surgery in January 2007 and a determination that the plaintiff suffered from a 8% impairment rating in October 2007. In November of 2008, over one year after starting her job with Academy, the employee reported increased symptoms in her right shoulder which was ultimately determined to be another rotator cuff tear requiring surgery. After that surgery it was determined that the employee had a 9% impairment. The authorized treating physician testified that this would certainly be an aggravation. The Alabama Court of Civil Appeals found that the doctor’s testimony, coupled with the increased impairment would amount to substantial evidence supporting a finding that the employee suffered an aggravation and that Academy was responsible for the medical bills and indemnity benefits.
As to the knee, the evidence showed that, prior to her employment with Academy, the employee had no significant abnormalities. However, after her employment with Academy an MRI revealed a medial meniscal tear. The employee also testified that during her employment with Academy her job duties aggravated her knee condition. Given the new damage and the employee’s testimony, the Court of Civil Appeals again found that there was substantial evidence supporting a finding that the employee suffered an aggravation and Academy was responsible for the medical bills and indemnity benefits.
The Court of Civil Appeals found that the trial court erred in granting the motion for summary judgment in favor of Academy noting that the trial court must decide which employer is responsible given that the facts support that the employee suffered a compensable injury.
The Court of Civil Appeals also found that the order compelling Office Max to pay for medical treatment was premature and reversed it as well.
Of note the Presiding Judge, J. Thomas and Judge P.J. Thompson, wrote specially to highlight the problem created by these situations and called for a legislative amendment to address the issue.
My Two Cents: Depending on the facts and circumstances of a particular case, it may be advisable to consider paying for medical treatment pending a judicial determination of responsibility so that you do not lose control of the medical treatment (See Flour Enterprises, Inc v. Lawshe blog posting, February 6, 2009). In the event that the judge eventually agrees that the other employer is responsible, then full reimbursement will also likely be ordered. However, if you are not successful, then you will have maintained control of the medical treatment.
ABOUT THE AUTHOR
The article was written by Joshua G. Holden, Esq. a Member of Fish Nelson, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. He is the current Chair of the ABA/ TIPS Workers’ Compensation and Employers’ Liability Committee. He is also on the Board of the Alabama Workers Compensation Organization and a member of numerous other associations and organizations. Holden has been selected as a "Rising Star" by Super Lawyers.
Holden 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 firstname.lastname@example.org or 205-332-1428.