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Alabama Forest Products Industry Workmen's Compensation Self-Insurer's Fund v. Harris

Alabama Court of Civil Appeals

June 13, 2014

Alabama Forest Products Industry Workmen's Compensation Self-Insurer's Fund
Amos Harris

Appeal from Marengo Circuit Court CV-12-900136

MOORE, Judge.

The Alabama Forest Products Industry Workmen's Compensation Self-Insurer's Fund ("Alabama Forest Products") appeals from a judgment of the Marengo Circuit Court ("the trial court") ordering it to pay certain attendant-care expenses for Amos Harris. We affirm.

Facts and Procedural History

The facts essential to this appeal appear to be largely undisputed. In 1990, Harris suffered a work-related accident resulting in severe injuries to his pelvis and right lower extremity. On November 1, 1991, Dr. Stuart Stephenson, an orthopedic surgeon and Harris's authorized treating physician, wrote a letter stating that, due to his ambulatory difficulties, it was "imperative that [Harris] have help at home during his recovery phase." Thereafter, Alabama Forest Products, who insured Harris's employer, paid various members of Harris's family a monthly stipend to assist Harris as instructed by Dr. Stephenson.

Harris reached maximum medical improvement in 1992 and settled his workmen's compensation claim against his employer in 1993. Pursuant to the terms of the settlement, which was approved by a judgment of the trial court, the employer remained "liable and shall pay any reasonable and necessary medical expenses on account of [Harris's] injuries as are required by the workmen's compensation laws of Alabama." As before the settlement, Alabama Forest Products, on behalf of the employer, continued to pay a monthly sum to various members of Harris's family for attending to Harris for the next nearly 20 years.

In the fall of 2011, Harris sent notice to the third-party administrator for Alabama Forest Products that he wanted Anthony Watkins, his future son-in-law, to replace Shaquita Harris, his daughter, as his designated caregiver. After complying with that request, the third-party administrator sent several payments to Watkins at Harris's mailing address. However, the third-party administrator later discovered that Watkins was employed full-time out of the town where Harris lived. On June 22, 2012, the third-party administrator informed Harris that it was terminating further payments for attendant care. Harris thereafter filed a declaratory-judgment action requesting that the trial court enforce the settlement by requiring Alabama Forest Products to reinstate the payments.[1]

At trial on February 21, 2013, the trial court received into evidence the deposition of Dr. Stephenson, who testified that, due to his work-related injuries, Harris is permanently and severely limited in lifting, range of motion, bending, stooping, squatting, climbing, and walking and that those limitations preclude Harris from independently performing ordinary activities of daily living. Dr. Stephenson maintained that, although Harris has long since reached maximum medical improvement, Harris still requires assistance with activities of daily living and in-home physical-therapy exercises and that he will require such attendant care for the rest of his life. Dr. Stephenson agreed that the attendant care provided by Harris's family members in the past had not improved Harris's underlying physical condition and that further attendant care would not improve Harris's condition in the future, but, he testified, the attendant care, which he considered to be "medical attention" and "physical rehabilitation, " had allowed and would continue to allow Harris to "maintain his function" and "prevent the deterioration of his condition." Dr. Stephenson opined that, without the attendant care provided by Harris's family members, Harris would otherwise have to be admitted into a skilled-nursing facility or else become bedridden.

The trial court also heard testimony from Harris; his wife, Willie Harris; and his daughter, Felicia Moore. That testimony established that, despite using strong narcotic medication prescribed by Dr. Stephenson, Harris continues to experience pain from the waist down and a substantial loss of the use of his right lower extremity. Harris uses a wheelchair and can walk for short distances only with the aid of a walker. He requires assistance to rise from his bed, to use the toilet, to get into and out of his bath, to negotiate steps, and to put on his clothes. He cannot prepare his own meals. At times, Harris, who was 71 years old at the time of the trial, has to be reminded to take his medication. Harris also depends on family members to bend and exercise his right leg, to rub medication on his injured areas, and to take precautions against bedsores, all tasks that Dr. Stephenson recommends and that ordinarily would be performed by nurses or nursing assistants at a cost.

At the time of the trial, Harris was living in his home with his son, Amos Harris, Jr. ("Amos Jr."). Willie resides next door in a mobile home approximately 10 yards away, which she shares with her sister and her disabled mother. Each morning, Willie goes to Harris's home and prepares breakfast for Harris. Sometimes, Amos Jr. helps Harris get up from his bed, which is a hospital bed with rails, in the morning, but mainly Willie assists Harris with getting out of bed and putting on his clothes. Harris feeds himself and then gets in a recliner, where he ordinarily watches television all day by himself, although he sometimes drives Willie to the grocery store and to pay his bills while he stays in his truck. Willie routinely returns to Harris's mobile home and prepares Harris's other daily meals. If Harris requires further assistance during the day, such as to go to the bathroom or to exercise his legs, he contacts Willie via telephone up until 9:30 at night. Felicia, a former certified nursing assistant, and Shaquita also provide intermittent care for Harris and transport him to his doctor's visits. After he returns from his job, Amos Jr. helps Harris until Harris goes to bed. No one spends the entire day with Harris, and he is often alone, a fact that surprised Dr. Stephenson.

After the trial, the trial court entered a judgment on April 8, 2013, ordering Alabama Forest Products to pay for the attendant-care expenses provided by Harris's family members from the date they had been discontinued and into the future. On April 24, 2013, Alabama Forest Products filed a postjudgment motion; that motion was denied by operation of law on July 23, 2013. See Rule 59.1, Ala. R. Civ. P. On August 28, 2013, Alabama Forest Products filed its notice of appeal.


On appeal, Alabama Forest Products argues that the trial court erred in ordering it to continue to pay Harris's family members for providing him attendant care. Alabama Forest Products argues primarily that, as a matter of law, an injured employee has no right to payment for attendant care and, secondarily, that, under the facts of this case, the trial court erred in ordering such payments. We address each argument in turn.

Before proceeding further, the court notes that Harris was injured in a 1990 work-related accident and that his rights would ordinarily be governed by the Alabama Workmen's Compensation Act ("the old Act"), former § 25-5-1 et seq., Ala. Code 1975. See Wal-Mart Stores, Inc. v. Green, 740 So.2d 412 (Ala. Civ. App. 1999) (date of injury, not date of final order approving settlement, determines which version of statute applies). Moreover, in the 1993 settlement, the parties agreed, and the trial court ordered, that the employer would be liable for medical expenses "as are required by the workmen's compensation laws of Alabama, " which references the old Act. See Ala. Acts 1992, Act No. 92-537, § 52 (noting that the old Act was known as the "Alabama Workmen's Compensation Law, " whereas the amended Act would be entitled the "Alabama Workers' Compensation Law"). Nevertheless, the parties tried, and the trial court decided, the underlying case under the theory that Harris's right to receive continuing attendant care at the expense of Alabama Forest Products was to be determined by application of the current medical-benefit provisions of the Alabama Workers' Compensation Act ("the Act"), § 25-5-1 et seq., Ala. Code 1975, and Rule 480-5-5-.30, Ala. Admin. Code (Dep't of Labor), a regulation promulgated by the then Department of Industrial Relations in 1996 pursuant to § 25-5-293, Ala. Code 1975, a part of the Act.[2] ...

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