WORK COMPENSATION NUTS BOLTS PRESENTED BY JUDGE CLAUDE

WORK COMPENSATION: NUTS & BOLTS PRESENTED BY: JUDGE CLAUDE E. HUNDLEY, III

I. Work Compensation “Terms of Art” A. Functional Capacity Evaluation (FCE) B. Vocational Evaluation Report (VOC) C. Permanent Physical Impairment (PPI) D. Maximum Medical Improvement (MMI) E. Average Weekly Wage (AWW) F. Workers’ Compensation Rate (WCR) G. Temporary Total Disability (TTD) H. Temporary Partial Disability (TPD) I. Permanent Partial Disability (PPD) J. Permanent Total Disability (PTD) K. Independent Medical Evaluation (IME)

A. Functional Capacity Evaluation “FCE” A FCE evaluation is an evaluation based upon a series of physical test which are to describe what physical abilities/ restrictions an employee may have. Frequently, a physician will send the employee for a FCE prior to placing work restrictions on the employee. FCE’s are often important when a dispute has arisen as to whether the employee’s allegation of pain with activity is valid or not.

B. Vocational Evaluation Report “VOC” A VOC report assigns a percentage number to represent the loss of earning capacity and loss of access to the job market an employee has incurred due to an injury. VOC reports may vary in their assessment of the vocational loss of an employee and may range between 0% and 100%. VOC reports are important when an employee is unable to return to his pre -injury job/pre-injury wage.

C. Permanent Physical Impairment “PPI ” After an employee has reached maximum medical improvement, the employee’s physician will assign the employee a PPI rating. This rating reflects the physical impact an injury has had upon an employee’s body. A PPI rating is based upon findings such as a loss of range of motion, loss of grip strength, etc. In those situations where an employee has returned to work at his preinjury wage and has incurred a non-scheduled injury, the employee’s recovery will be based on his assignment of a PPI rating.

D. Maximum Medical Improvement “MMI ” MMI will be a particular date on which the plaintiff’s treating physician decides that the employee has reached a plateau in his improvement. The date of MMI will end an employer’s obligation to pay temporary total disability benefits. An employee must be at MMI before he is entitled to an award for a permanent disability.

E. Average Weekly Wage “AWW ” An employee’s AWW is the average of the employee’s wages over the 52 weeks preceding the accident. An employee is entitled to have included in his AWW the value of any employer paid health and life insurance benefits.

F. Worker’s Compensation Rate “WCR ” The WCR is 66 2/3% of the employee’s average weekly wage. The employee’s benefits are based on his WCR as opposed to his average weekly wage.

G. Temporary Total Disability “TTD ” This is the period when the employee is temporarily unable to work at all. Payment of TTD benefits are not due an employee until the fourth day of disability, however, if the disability lasts for more than 21 days the employee is entitled to payment for the first three days of his TTD.

H. Temporary Partial Disability “TPD” An employee has incurred a TPD when he is unable to continue his present employment, but remains able to perform some type of gainful employment. An employer is responsible to an injured employee for 66 2/3% of the difference between the employee’s average weekly earnings at the time of the injury and the average weekly earnings the employee is able to earn in his partially disabled condition.

I. Permanent Partial Disability “PPD ” An employee has a PPD when, after reaching maximum medical improvement, he is still disabled but is not totally disabled.

J. Permanent Total Disability “PTD” This is the description of an employee who after reaching maximum medical improvement is no longer capable of performing gainful employment. If an employee is determined to be PTD, then he is entitled to weekly benefits for the remainder of his life. PTD is awarded when three considerations are met: 1. Worker is unable to perform the work of his trade 2. Worker is unable to find other gainful employment 3. Worker is unable to be retrained for gainful employment

K. Independent Medical Evaluation “IME” If the employer questions the employee’s treating physician’s findings or recommended course of treatment, the employer may request that the employee be examined by another physician.

II. Classification of Injury A. Scheduled Injury The Alabama Worker’s Compensation Act provides a list of various injuries to different body parts and also provides the number of weeks available for such an injury. Under the schedule injury provisions of the Act, an employee is entitled to this compensation rate (subject to the 220 cap) for the number of weeks provided in the schedule. B. Non-Scheduled Injury A non-scheduled injury is any type of injury which does not fall within the scheduled injury provision of the Act. Typical non-schedule injuries include neck and back injuries.

III. Evaluating and Proving Your Case For an injury to be compensable under the Worker’s Compensation Act, the employee must establish both: 1. Legal Causation 2. Medical Causation Ex parte Moncrief, 627 So. 2 d 385, 388 (Ala. 1993).

III. Evaluating and Proving Your Case A) Legal Causation § 25 -5 -51 “…in every case of personal injury or death of his or her employee caused by an accident arising out of and in the course of his or her employment, without regard to any question of negligence. Notwithstanding the foregoing, no compensation shall be allowed for an injury or death case by the willful misconduct of the employee, by the employee’s intention to bring about the injury or death of himself or herself or of another, his or her willful failure or willful refusal to use safety appliances provided by the employer or by an accident due to the injured employee being intoxicated from the use of alcohol or being impaired by illegal drugs. ”

III. Evaluating and Proving Your Case A) Legal Causation (§ 25 -5 -51 continued) “ A positive drug test conducted and evaluated pursuant to standards adopted for drug testing by the U. S. Department of Transportation in 49 C. F. R. Part 40 shall be a conclusive presumption of impairment resulting from the use of illegal drugs. No compensation shall be allowed if the employee refuses to submit to or cooperate with a blood or urine test as set for the above after the accident after being warned in writing by the employer that such refusal would forfeit the employee’s right to recover benefits under this chapter. No compensation shall be allowed if, at the time of or in the cause of entering into employment or at the time of receiving notice of the removal of conditions from a conditional offer of employment, the employee knowingly and falsely misrepresents in writing his or her physical or mental condition and the condition is aggravated or reinjured in an accident arising out of and in the course of his or her employment. “

III. Evaluating and Proving Your Case A) Legal Causation 1. Satisfying Case Under the Statute The phrases “Arising out of” and “Arising In the course of” are not synonymous; where both are used conjunctively a double condition has been imposed, and both terms must be satisfied in order to bring a case within the act

III. Evaluating and Proving Your Case A) Legal Causation 1(a). Arising ‘Out of Employment’ To prove injury arose ‘out of employment’ you must show the following: 1. Causal relationship between claimant’s performance of duties as an employee and the complained of injury 2. Employment must be the source and cause of the accident 3. Claimant to establish a definite causal connection 4. Arise from a risk or danger incidental to the character of claimant’s employment

Dana Louise Pollock v. Girl Scouts of Southern Alabama, INC 176 So. 3 rd 222 Court of Civil Appeals of Alabama (2015) Background: Claimant, who suffered an injury to her back while she and other employees were horseback riding at summer camp, sought workers’ compensation benefits. The Mobile County Circuit Court entered summary judgment for employer, and claimant appealed. Findings: Court of Civil Appeals held that claimants injury from horseback ride at summer camp was a voluntary recreational activity that was unrelated and not incidental to claimants duties as business manager of the camp. Thus, her injury was not compensable and the trial Court’s judgment was affirmed.

III. Evaluating and Proving Your Case A) Legal Causation 1(b). Arising ‘In the Course of Employment’ An injury to an employee is ‘in the course of employment’ when it meets all the following criteria: 1. Injury occurs within the period of claimant’s employment 2. Injury results at a place where claimant may reasonably be 3. Injury happened while claimant was reasonably fulfilling the duties of their employment or engaged in an activity incident to it

III. Evaluating and Proving Your Case A) Legal Causation 1(b). Arising ‘In the Course of Employment’ (cont. ) Consider these criterion in determining whether an activity is within the ‘course of employment’ v Customary nature of the activity v Employers encouragement or subsidization of activity v Extent to which the employer managed or directed activity v Presence of substantial pressure or actual compulsion upon employee the employee to attend and participate v Fact that the employer expects or receives a benefit from employees’ participation in activity

III. Evaluating and Proving Your Case B) Medical Causation “Once legal causation has been established, i. e. , that an accident arose out of, and in the course of employment, medical causation must be established, i. e. , that the accident caused the injury for which recovery is sought. ” Hammons v. Roses Stores, Inc. , 547 So. 2 d 883, 885 (Ala. Civ. App. 1989)

Ex parte Fairhope Health & Rehab, LLC (In re Lula Durgin v. Fairhope Health & Rehab, LLC). 175 So. 3 rd 622 Court of Civil Appeals of Alabama (2015) Background: Claimant (Lula Durgin), a nursing- home employee who injured her knee while attempting to climb into driver’s seat of van to take residents shopping, sought worker’s compensation. The Baldwin County Circuit Court, found that claimant had sustained a workrelated injury to her knee, and employer appealed. Findings: Claimant met her burden of proving legal causation, that is, of proving that an accident arose out of and in the course of her employment; Claimant failed to meet her burden of proving medical causation as it related to her need for knee replacement. Petition granted in part and denied in part; writ issued

Ex parte Fairhope The trial Court explicitly found that Durgin had not reached MMI An employee suffering from a preexisting condition is not precluded from recovering workers’ compensation benefits merely because the condition existed before the work-related incident giving rise to a workers’ compensation claim It is equally true that “an employer is not the absolute insurer of an employee’s health and should bear only the cost of compensating employees for accidents that arise out of and in the course of their employment. ” If a work related accident temporarily aggravates a preexisting condition, not contributing at all to the preexisting condition after a period, the employer is liable for compensation under the Act only for the temporary disabling effects caused by the accident.

Ex parte Fairhope After an employee recovers from a temporary aggravation, an employer bears no liability under the Act for any lingering or permanent injury or disability caused solely by a preexisting condition. In this case, there was undisputed evidence that four years before her knee injury, she had been diagnosed with arthritis in her right knee and that the degenerative condition of her right knee at that time left her with a “terrible-looking” knee. The doctor that performed knee surgery on Durgin stated that the twisting injury caused “an acute exacerbation” of her right-knee condition; however, he said, as a result of the subsequent surgery he performed, he “ got her back to better than she was before the (work-related) accident. ”