EX PARTE WARRIOR MET COAL, INC. (In re: Steve Barnes
Alabama Workmen' s Compensation Self-Insurer' s Guaranty Association, Inc., and Warrior Met Coal, Inc.).
Tuscaloosa Circuit Court, CV-17-900913
[Copyrighted Material Omitted]
C. Webb V and Aaron D. Ashcraft of Lloyd, Gray, Whitehead
& Monroe, P.C., Birmingham, for petitioner.
W. Ford and Burke M. Spree of King Simmons Ford & Spree,
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
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 factors."
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 disability."
4, 2019, the trial court entered an order denying WMC's
motion for a summary judgment. WMC timely ...