Alabama Employment Law Report : Alabama Employment Lawyer & Attorney : Daniel J. Burnick : Sirote & Permutt Law Firm

The Alabama Court of Civil Appeals recently addressed the continuing attempt of workers injured on the job, with a scheduled member, trying to get around the schedule relying on disabling pain.  In Wehadkee Yarn Mills v. Harris, Deborah Harris was a long time employee at the mill, and at the time of her injury was a lab technician.  Her job required her to lift packages of yarn weighing 3 to 12 pounds.  On February 7, 2006, she was lifting a package of yarn when she felt pain in her right thumb.  She was treated by numerous doctors, and had surgery on her right hand.  She continued to have constant pain, rating it a 5 or 6 on a scale of 10, and that simple activities, such as washing dishes or putting on makeup increased her pain to an 8 on a scale of 1-10.  She testified that the pain did not go more than 2 inches above her wrist.  She returned to work at Wehadkee, but the plant shut down shortly thereafter.  She applied for and received unemployment compensation for about 5-6 months, and then took a job at Wal-Mart, where she worked for approximately 5 months, before quitting due to the pain in her right hand.  At the time of trial, she had been approved for Social Security Disability.  The trial court found her 100% permanently disabled as a result the disabling pain, and did not treat her injury as a scheduled injury.

On appeal, the Alabama Court of Civil Appeals remanded the case to the trial court since the trial court did not apply the test set forth in Norandal U.S.A. Inc, v. Graben, which held that "a worker who sustains a permanent injury to a scheduled member resulting in chronic pain in the scheduled member that is so severe that it virtually totally physically disables the worker would not be limited to the benefits set out in the schedule." 

Practice Pointer.  In a workers' compensation case, many times the injured worker who otherwise has a scheduled injury is claiming pain that results in a permanent total disability.  The court can find for such a claim, so long as the facts support it.  As I have frequently said, the 2 most important factors in a workers' compensation case are the judge and the demeanor of the injured worker.  The judge has the discretion to make almost any finding in a non-jury setting, so long as it is supported by a reasonable interpretation of the facts.  And the injured worker, when he/she makes a credible witness, has a much better chance of succeeding on the claim. 

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I was in Memphis yesterday to attend the finals of the Dizzy Dean World Series.  Fortunately, my son's team, the Alabama Rays, won the senior division. Unfortunately, in the 6th inning, the tornado sirens went off.  Heavy rain, lots of lightning, strong winds and word of a nearby tornado.  The park board had a weather emergency plan: all the players, parents and others in attendance were required to go into the only building available: either in the bathrooms or the concession storage closet.  Although a tight fit, everyone did as instructed.  After about 30 minutes, the all clear was given and we were allowed back outside.  Later, we learned that a tornado touched down about 5 miles away, causing damage to buildings, cars, etc.  I was impressed that the park board had a weather emergency plan, those in charge knew what it was, and it was implemented quickly and efficiently. 

Practice pointer.  It is important that companies have a weather emergency plan in place, all employees are trained as to what it is, and that it be implemented as necessary.  Training should take place on a regular basis, and supervisors need to  know what to do when the tornado sirens  sound.  Employees who are injured may be eligible for workers' compensation benefits.

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Over the last several weeks, both the Alabama Court of Civil Appeals and the 11th Circuit Court of Appeals have issued a number of cases that impact the employment arena.  In my opinion, the most important ones are the following:

1.  Duran v. Goff Group:  Silva was working in Alabama for Jarman Construction when he died as the result of an on the job accident in 2003.  He was survived by a wife and two minor children, both of whom resided in Mexico at the time of his death.  The workers' compensation carrier, Goff Group, filed for a declaratory judgment that death benefits were not payable to Silva's dependents because they were nonresident aliens.  The Court of Civil Appeals found that since the dependents were neither citizens nor resident aliens in the United States, they were not afforded Constitutional guaranties to equal protection and due process.  The Court further found that the rights of dependents are separate and distinct from the rights of the deceased employee rather than derivative of the employee's rights.  As such, the non-resident alien dependents were not entitled to death benefits under Alabama's workers' compensation statute. 

2.  Allmond v. Akal Security Inc.:  Allmond applied for a job with Akal Security Inc. which, among other things, provided security officers at federal courthouses under contract with the U.S. Marshals Service.  Allmond was employed as a security officer in Columbus, Georgia.  One of the prerequisites of holding this job was to pass a hearing test, without the use of a hearing aid since the security officers must "be able to clearly understand directions in time of crisis....must be able to hear communication at a level of sound that does not inform persons causing an incident of the [officers'] response plans...[and] must be able to discern the direction of a disturbance or detect an approaching threat".  The hearing aid ban ensures that the officers can perform their job duties in the event the hearing aid fails or becomes dislodged.  Allmond failed the hearing test, and filed his lawsuit under the ADA and Rehabilitation Act.  The 11th Circuit, upholding the trial court's granting of summary judgment against Allmond, found that the hearing aid ban was job related and was consistent with a business necessity.  "When considered in the light of the tremendous harm that could result if a security officer could not perform the essential hearing functions of his job at a given moment, we accept this justification as legitimate and wholly consistent with business necessity".

3.  Gregory v. First Title of America Inc.:  Gregory worked as marketing representative for First Title, a title insurance company.  After she left her employment, she sued for overtime pay under the FLSA, seeking $10,000 in unpaid overtime compensation.  Her allegations included the fact that she never consummated a sale, that she was employed only to promote the company's services and to stimulate sales.  At her deposition, she testified that she did in fact obtain orders for title insurance and was paid a commission on her successful sales.  The 11th Circuit found that she was exempt under the FLSA as an oustside sales employee:  she was customarily and regularly performing her duties away from her employer's place of business, free from direct supervision,  that her primary duty was to obtain orders for title insurance, and her income was directed related to the number of orders she brought in or obtained. 

Seminar Update.  Due to an overwhelming response, my firm, Sirote & Permutt will conduct a second seminar addressing actual and anticipated changes in employment law on March 11, 2009 at Vulcan Park in Birmingham.  If you are interested in attending please contact ewilbourne@sirote.com or call 205.930.5494 to RSVP.

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In Ex parte Dolgencorp, Inc., the Alabama Supreme Court examined Ala. Code § 25-5-57(b) that defines how to compute compensation and determine average weekly wages. The statute provides for the calculation based on the employee's compensation for 52 weeks immediately preceding the injury. The statute further provides that if an employee has not worked for 52 weeks prior to the injury, the average weekly wage shall be calculated by dividing the employee's compensation by the number of weeks the employee earned wages immediately preceding the injury. Here, the plaintiff suffered an on-the-job injury after working 33 weeks for Dollar General. The Alabama Supreme Court, noting that the Workers' Compensation Act was passed to minimize litigation over work related injuries, found that the trial court's use of the second method of determining average weekly wages was accptable so long as the result is just and fair to both parties.

Practice Pointer    When an injured employee pursues a claim for workers' compensation benefits, it is important to work with the workers' compensation carrier and/or third party administrator to comply with the various provisions of the statute, including how to calculate average weekly wages.

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