Ex parte Warrior Met Coal, Inc.
Alabama Workmen's Compensation Self-Insurer's Guaranty Association, Inc., and Warrior Met Coal, Inc. In re: Steve Barnes
Tuscaloosa Circuit Court, CV-17-900913
PETITION FOR WRIT OF MANDAMUS
Barnes filed a complaint in the Tuscaloosa Circuit Court
("the trial court") seeking benefits from the
Alabama Workmen's Compensation Self-Insurer's
Guaranty Association, Inc. ("the Guaranty
Association"), and Warrior Met Coal, Inc.
("WMC"), under the Alabama Workers'
Compensation Act ("the Act"), Ala. Code 1975,
§ 25-5-1 et seq. WMC has filed with this court a
petition for a writ of mandamus in which it seeks a writ
directing the trial court to vacate its order denying
WMC's motion for a summary judgment and to enter an order
granting that motion because, according to WMC, the trial
court lacks subject-matter jurisdiction over Barnes's
claim because his claim is not ripe.
and Procedural History
on the materials before us, Barnes worked for Jim Walter
Resources, Inc. ("JWR"), from 1985 until
approximately August 7, 2015, after which JWR declared
bankruptcy and was determined to be insolvent. Thereafter,
the Guaranty Association allegedly assumed responsibility for
the payment of workers' compensation claims filed against
JWR. Barnes's last employment with JWR was as a washerman
at the "#5 mine."
began operation of the #5 mine on April 1, 2016. In mid-April
2016, Barnes allegedly began his employment with WMC, working
as an electrician at the #5 mine washer. On July 28, 2017,
Barnes filed a complaint in the trial court against the
Guaranty Association and WMC for workers' compensation
benefits. According to Barnes, as a result of his employment
with JWR and WMC, he was repeatedly exposed to loud noises
that caused hearing loss in both of his ears. Barnes alleged
that he was last exposed to the "injurious activities
and/or occupational conditions" causing his hearing loss
on July 25, 2017. Barnes also alleged that he "was
receiving a weekly wage at all times relevant to" his
complaint, and the materials before us do not indicate that
Barnes has missed any time at work or lost any pay based on
his alleged hearing loss. He apparently continues to work for
WMC "as an electrician at the #5 [mine] washer,"
where, according to Barnes, he is "exposed to various
noises, including, but not limited to, noises from rock
screens, coal screens, motors, fans, pumps, belt lines, belt
drive, decanters, dryers, feeders and air compressors,"
the same noises he allegedly was exposed to while working at
the washer for JWR. According to Barnes, both WMC and JWR
provided some form of hearing protection to him, but neither
required employees to wear hearing protection. Nevertheless,
Barnes purportedly used hearing protection when he was able
to do so.
alleged that he had incurred medical expenses for his hearing
loss, that such expenses would continue in the future, and,
based on his answers to WMC's interrogatories, that at
least some of his incurred medical expenses had not been paid
by WMC. Barnes's complaint further alleged that he had
suffered "temporary total disability and permanent
partial and/or permanent total disability ... rendering [him]
incapacitated" within the meaning of the Act. However,
in his answers to WMC's interrogatories, Barnes stated
that he was "not claiming any temporary total disability
benefits at this time." In his response to WMC's
interrogatory regarding "what permanent and partial
disability [he was] claiming," Barnes stated: "I am
claiming all benefits that I am entitled to for my bilateral
hearing loss pursuant to the ... Act." In response to
WMC's interrogatory regarding any alleged loss of earning
capacity, Barnes stated:
"[Barnes] objects to this interrogatory on grounds said
interrogatory is not relevant to any party's claim or
defense and not reasonably calculated to lead to the
discovery of admissible evidence. Subject to these
objections, [Barnes] is not aware of any lost earning
capacity at this time but reserves the right to supplement
this answer in accordance with the Alabama Rules of Civil
Procedure and any Pre-Trial Order ...."
December 11, 2018, WMC filed a motion for a summary judgment
arguing that Barnes's claim for his alleged hearing loss
was not ripe for adjudication because, according to WMC,
Barnes could not establish his "date of injury"
under Ala. Code 1975, § 25-5-117(b), because, WMC said,
he continued to work for WMC and to be exposed to the same
hazards that allegedly had caused his injury. Further, WMC
contended, its conclusion regarding a lack of ripeness was
supported by Ala. Code 1975, § 25-5-116(a), and the
precedents thereunder that purportedly preclude any
apportionment of benefits in an occupational-disease case.
Further, WMC argued, Barnes continued to be exposed to the
hazards that allegedly caused his hearing loss and, WMC said,
"it can be presumed that ... the impairment caused by
the hearing loss will increase." WMC continued:
"As the final alleged disability that may arise from the
exposures cannot be established, it cannot be determined that
there is no medical treatment that will improve that
disability, nor can a final permanent impairment be
established. Alabama Courts have long held that a permanent
impairment cannot be established before a Plaintiff reaches
[maximum medical improvement]."
WMC's motion for a summary judgment concluded:
"[Barnes] has admitted that he is currently still
exposed to the hazards of his alleged disease. As a result,
he cannot establish a date of injury, cannot establish ...
who will ultimately be liable for the disease, and cannot
establish a final degree of impairment. As several
fundamental elements of [Barnes's] claim cannot be
adjudicated, [his] claim is not ripe, and should be
dismissed, without prejudice, to refile when [he] can
establish a date of loss."
filed a response opposing WMC's motion for a summary
judgment. Barnes argued, in part, that he had reached maximum
medical improvement ("MMI"), that issues of
material fact precluded the entry of a summary judgment in
favor of WMC, and that WMC had misinterpreted §
25-5-117(b). Among the materials Barnes submitted in support
of his response opposing WMC's summary-judgment motion
were his affidavit and an affidavit from Dr. Salem K. David,
who allegedly performed all medical services associated with
Barnes's purported hearing loss. Dr. David's
affidavit included as an exhibit a letter from Sandra M.
Hinman, the audiologist who evaluated Barnes for Dr. David.
Hinman's letter states:
"[Barnes's] ideogram/test results reveal that he has
a mild sensorineural hearing loss at 250 Hz - 500 Hz for the
right ear and borderline normal hearing at 1000 Hz - 2000 Hz,
dropping to a moderate to severe loss at 3000 Hz - 8000 Hz.
For the left ear, he has a mild sensorineural hearing loss at
250 Hz - 500 Hz, and borderline normal hearing at 1000 Hz
only, dropping to a varying loss at 2000 Hz - 3000 Hz, and a
profound loss at 4000 Hz - 8000 Hz. His hearing loss is most
likely a combination of age related and noise induced
David's affidavit, he averred that he had diagnosed
Barnes "with bilateral sensorineural hearing loss"
and that it was Dr. David's "opinion [that] the
noise exposure in the mines has been a contributing factor in
causing ... Barnes's hearing loss." Dr. David
"Sensorineural hearing loss, due to ongoing noise, is
most often permanent and no further medical care or treatment
could be reasonably anticipated to medically treat ... Barnes
or lessen his impairment or disability. Continued unprotected
exposure can cause further decrease in hearing from which ...
Barnes is not expected to recover. After each injurious
exposure, no further medical treatment will likely yield
additional improvement or lessen his impairment or
4, 2019, the trial court entered an order denying WMC's
motion for a summary judgment. WMC timely petitioned this
court for a writ of mandamus.
"'Mandamus is a drastic and extraordinary writ, to
be issued only where there is (1) a clear legal right in the
petitioner to the order sought; (2) an imperative duty upon
the respondent to perform, accompanied by a refusal to do so;
(3) the lack of another adequate remedy; and (4) properly
invoked jurisdiction of the court.'"
Ex parte Perfection Siding, Inc., 882 So.2d 307,
309-10 (Ala. 2003) (quoting Ex parte Integon Corp.,
672 So.2d 497, 499 (Ala. 1995)). "Subject to certain
narrow exceptions ..., because an 'adequate remedy'
exists by way of an appeal, the denial of ... a motion for a
summary judgment is not reviewable by petition for writ of
mandamus." Ex parte Liberty Nat'l Life
Ins. Co., 825 So.2d 758, 761-62 (Ala. 2002); see
also Ex parte University of S. Alabama, 183 So.3d 915,
918 (Ala. 2016). One of those narrow exceptions is when a
trial court lacks subject-matter jurisdiction. See,
e.g., Ex parte Sanderson, 263 So.3d 681,
685 (Ala. 2018). The supreme court has stated that, when a
"claim is not ripe for adjudication, ... the trial court
lacks subject-matter jurisdiction." Ex parte Safeway
Ins. Co. of Alabama, Inc., 990 So.2d 344, 352 (Ala.
2008) (footnote omitted). In Ex parte Safeway
Ins. Co. of Alabama, Inc., the supreme court noted that
"[r]ipeness is defined as '[t]he circumstance
existing when a case has reached, but has not passed, the
point when the facts have developed sufficiently to permit an
intelligent and useful decision to be made' or '[t]he
requirement that this circumstance must exist before a court
will decide a controversy.' Black's Law
Dictionary 1353 (8th ed. 2004)."
990 So.2d at 352 n.5.
petition for a writ of mandamus essentially restates the
ripeness arguments made in its motion for a summary judgment.
Central to WMC's argument is the meaning of "the
date of the injury" in § 25-5-117, which supplies
the statute of limitations for occupational-disease claims
under the Act. In pertinent part, that Code section provides:
"(a) In case of the contraction of an occupational
disease, as defined in this article [i.e., Article 4 of the
Act, pertaining to compensation for occupational diseases],
or of injury or disability resulting therefrom, a claim for
compensation, as defined in [Ala. Code 1975, §] 25-5-1,
shall be forever barred, unless within two years after the
date of the injury, as hereinafter defined, the parties shall
have agreed upon the compensation payable under this article,
or unless within two years after the date of the injury, one
of the parties shall have filed a verified complaint as
provided in [Ala. Code 1975, §] 25-5-88. ...
"(b) For the purposes of occupational diseases other
than pneumoconiosis or radiation, 'the date of the
injury' shall mean the date of the last exposure to the
hazards of the disease in the employment of the employer in
whose employment the employee was last exposed to the hazards
of the disease."
on the language of § 25-5-117(b), WMC argues that
Barnes's "claim was not ripe for adjudication
because [he] could not establish [his] 'date of