Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ex Parte Warrior Met Coal, Inc.

Alabama Court of Civil Appeals

September 6, 2019

Alabama Workmen' s Compensation Self-Insurer' s Guaranty Association, Inc., and Warrior Met Coal, Inc.).


          Tuscaloosa Circuit Court, CV-17-900913

Page 781

[Copyrighted Material Omitted]

Page 782

          John C. Webb V and Aaron D. Ashcraft of Lloyd, Gray, Whitehead & Monroe, P.C., Birmingham, for petitioner.

          Steven W. Ford and Burke M. Spree of King Simmons Ford & Spree, P.C., Tuscaloosa.


         EDWARDS, Judge.

         Steve 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'

Page 783

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.

         Facts and Procedural History

         Based 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."

         WMC 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.[1] 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.

         Barnes 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

Page 784

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...."

         On 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]."[2]

         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."

         Barnes 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

Page 785

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 factors."

         In Dr. 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 further averred:

"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 disability."

         On May 4, 2019, the trial court entered an order denying WMC's motion for a summary judgment. WMC timely ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.