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Grieser v. Advanced Disposal Services Alabama, LLC

Alabama Court of Civil Appeals

August 11, 2017

Jack Grieser
v.
Advanced Disposal Services Alabama, LLC

         Appeal from Crenshaw Circuit Court (CV-11-8)

          MOORE, Judge.

         Jack Grieser ("the employee") appeals from a judgment entered by the Crenshaw Circuit Court ("the trial court") to the extent that it awarded him permanent-partial-disability benefits under the Alabama Workers' Compensation Act ("the Act"), § 25-5-1 et seq., Ala. Code 1975, based, he says, on the wrong average weekly wage; declined to award him benefits based on his alleged vocational impairment; and denied his request to hold Advanced Disposal Services Alabama, LLC ("the employer"), in contempt of court. We affirm the judgment in part and reverse it in part.

         Facts and Procedural History

         On February 7, 2011, the employee filed a complaint in the trial court, alleging that he had suffered an on-the-job injury and seeking workers' compensation benefits from the employer. On March 8, 2011, the employer answered the complaint. The employee amended his complaint on March 16, 2011, to correct an error in the employer's name. The employer answered the amended complaint on March 21, 2011.

         On November 21, 2011, the employer filed a motion requesting a determination regarding whether it was obligated to pay for pain-management treatment for the employee. That same day, the employee amended his complaint to add a claim alleging retaliatory discharge. The employer filed an answer to the second amended complaint on November 30, 2011. On March 14, 2012, the trial court entered an order requiring the employer to provide pain-management treatment for the employee.

         On June 9, 2014, the employer filed a motion for a partial summary judgment on the retaliatory-discharge claim. The employee filed a response to the partial-summary-judgment motion on October 20, 2014. On December 16, 2014, the trial court entered a partial summary judgment in favor of the employer on the retaliatory-discharge claim.

         On March 9, 2015, the employer filed a motion in limine requesting "an Order precluding [the employee], [the employee's] witnesses, and [the employee's] counsel from offering any evidence or giving any testimony concerning, or making any argument about or [in] reference to, or asking any questions or soliciting testimony about, any alleged vocational impairment or vocational disability of the [employee]." The employer argued that Ala. Code 1975, § 25-5-57(a)(3)i. ("the return-to-work statute"), a part of the Act, precluded the employee from offering evidence of vocational disability. Specifically, the employer argued that the employee had "return[ed] to work at a wage equal to or greater than the [employee's] pre-injury wage, " § 25-5-57(a)(3)i., and that, although the employee's employment had subsequently been terminated, it had been terminated "for actual or threatened misconduct committed in connection with his ... work after previous warning to the employee, " § 25-5-57(a)(3)i. (iv). In the alternative, the employer moved for a partial summary judgment on that issue.

         On March 15, 2015, the employee filed an objection to and a motion to strike the employer's motion in limine or, in the alternative, for a partial summary judgment. The employee argued, among other things, that the entirety of the return-to-work statute, as well as the portion of the statute regarding whether the employee's employment had been terminated "for actual or threatened misconduct committed in connection with his ... work after previous warning to the employee, " were affirmative defenses. He asserted that, because the employer had not raised those defenses in its answer, those defenses were waived. On March 19, 2015, the trial court held a trial at which it heard, among other evidence, testimony regarding the employee's vocational disability.

         On January 22, 2016, the employee filed a motion requesting that the trial court hold the employer in contempt for its failure to pay for the employee's pain-management treatment. The employee specifically argued that the employer had failed to pay for an injection of medication that the employee had received in November 2015 to treat the employee's pain and that the employer had requested that the employee be weaned off of oral pain medications that his physician had deemed medically necessary.

         On January 26, 2016, the trial court entered an order, stating, in pertinent part:

"2. [On January 21, 2010], [the employee] suffered an accident arising out of and in the course of his employment. The accident occurred when [the employee] stepped down from a flatbed truck onto a concrete loading ramp while performing his job duties for [the employer].
"....
"4. Ultimately, [the employee's] back injury was treated by physicians at Neurosurgery & Spine Associates of Central Alabama. [The employee] also received and continues to receive pain-management treatment from the Pain Center of Montgomery. All of this treatment has been authorized and approved by [the employer] pursuant to the Act. There was no proof submitted at trial that [the employee] had incurred medical treatment or related expenses in connection with his injury that had not been paid for by [the employer] and the Court finds that no such bills and expenses are presently due, owing or known to either party.
"5. Neurosurgery & Spine Associates of Central Alabama determined that [the employee's] back injury resulting from the accident was due to 'multifactorial issues; degenerative disc disease probably exacerbated by injury.' The Court accepts this conclusion in making its determinations in this case. [The employee] is not a candidate for surgery for his back condition according to the evidence.
"6. [The employee] reached maximum medical improvement for his injury on July 23, 2010, and was assigned a 5% medical impairment to his body as a whole.
"7. At the time of his injury, [the employee's] average weekly wage with [the employer] was $491.66.
"8. Since [the employee's] injury is not scheduled under the provisions of the Act, [the employee] may receive permanent-partial-disability benefits for 300 weeks, less the number of weeks [the employee] was paid temporary-total-disability benefits. Ala. Code [1975, ] § 25-5-57(a)(3)g. There was no proof offered at trial whether [the employee] received temporary-total-disability benefits or was due to receive temporary-total-disability benefits. Accordingly, the Court does not award such benefits and, therefore, [the employee] is due to receive 300 weeks of permanent-partial-disability benefits.
"9. [The employee] was returned to employment by [the employer] following his injury earning wages at least equal to those he had been earning at the time of the accident. He continued his employment with [the employer] following the date he reached maximum medical improvement, again earning wages at least ...

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