Alabama Court of Civil Appeals Considers Matter Involving Last Injurious Exposure Rule
Jeff White v. HB&G Building Products, Inc.;
On August 20, 2010, the Alabama Court of Civil Appeals considered a matter involving the Last Injurious Exposure Rule. This rule deals with subsequent injuries in workers’ compensation involving accident dates with either two different insurers or two different employers.
In this case, the employee fell and injured his knee. His treating physician first indicated that there was a probable tear to the soft tissue around the employee’s knee cap. After two months of treatment, the treating physician made the determination that the employee’s knee had healed and returned him to regular duty. The employee continued to complain to the treating physician and requested a second opinion; which the treating physician encouraged. The physician set up an appointment for the employee to be seen by a second physician.
In between the time the employee asked for the second opinion and the time he saw the second physician; the employee voluntarily changed jobs. The employee’s new job required him to stand most of the day (something the previous job did not require). The employee stated that at his new job his knee would ache and swell everyday and that he would occasionally develop leg craps.
At trial the second physician stated that while he thought the employee’s job requirements could have aggravated the existing injury; he did not know whether the injury was a new injury, an old injury, an aggravation, or a recurrence. The Trial Court found that the employee’s knee injury was an aggravation of the injury he had incurred with the first employer.
The last injurious exposure rule mandates that a new employer is responsible for the treatment of the employee if: 1) the second injury is an aggravation of the prior injury; or 2) the second injury is a "new injury." The new employer is not responsible if the second injury is an old injury or a recurrence (of an old injury).
The Alabama Court of Civil Appeals reversed the judgment of the lower court stating that there was no evidence to support the trial court’s findings that there was either a second injury to the knee or that the employee had aggravated his previous injury.