COURT WITHDRAWS PRIOR OPINION AND RELEASES NEW OPINION CONCERNING AWW AND PERMANENT AND TOTAL AWARD
(Note: The Alabama Court of Civil Appeals withdrew its opinion of July 17, 2009 and substituted it with the opinion summarized below)
G.A. West & Co. v. Ricky McGhee:
On January 29, 2010, the Alabama Court of Civil Appeals released this opinion in which it reconsidered a previous opinion. Specifically, the Court addressed whether the trial court properly calculated the AWW and whether or not a permanent and total award was proper. At trial, the employee introduced evidence that he was injured on his second day of work. Since the employee was a welder and iron worker and did not work consistent work weeks throughout the year, the judge determined that the 3 methods for calculating an AWW provided in the Code were not applicable. Therefore, the judge also considered the testimony of a co-worker who explained how much the employee would have worked had he not been injured and arrived at an AWW he considered just and fair to both parties. The Court of Civil Appeals agreed that the judge was allowed to depart from the 3 methods provided for in the Code. However, the Court reversed the trial court’s method because it resulted in giving the employee his best case scenario. Such a result could not be considered just and fair to the employer.
The employer also appealed the permanent and total award based on its vocational expert’s testimony that jobs were available. The Court upheld the trial court on that issue since the plaintiff’s vocational expert rendered the opposite opinion and it was within the trial court discretion to weigh the credibility of the testimony.
The employer also sought a reversal based on certain affirmative defenses. First, it asserted that the employee was guilty of a willful safety rule violation by not wearing the safety harness at the time of the subject accident. The Court refused to reverse the trial court based on that defense because the employee was not provided notice of the defense until six days before trial. Second, the employer asserted that the employee did not meet the definition of "permanent and total" because he refused to undergo vocational retraining or to accept a reasonable accommodation. The Court refused to reverse based on that defense because it was not asserted until the day of trial. Third, the employer asserted that the employee did not meet the definition of "permanent and total" because he refused reasonable medical treatment. Since that defense was not asserted during the trial at all, the Court refused to consider it.
Practice Pointer: The Code provides three methods to calculate an AWW. First, you take the total wages (and employer paid fringe benefits) earned in the 52 weeks prior to the injury and divide it by 52. Second, you take the total amount as set forth above and divide it by the actual number of weeks worked. Third, you take the AWW of a similarly situated employee. In the above case, the employer offered the testimony of such an employee but could not establish to the judge’s satisfaction that the employee was, in fact, similarly situated to the plaintiff. It is important to make sure that you can establish such a foundation or the testimony may be ignored. In addition, it is important to assert all available affirmative defenses in your answer and in the form of amended answers as soon as those defenses become known. Such defenses should become part of your trial stipulations which should, in turn, be part of your trial brief and/or asserted at the commencement of the trial.