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AMEC Foster Wheeler Kamtech, Inc. v. Chandler

Alabama Court of Civil Appeals

October 4, 2019

AMEC Foster Wheeler Kamtech, Inc.
v.
Jimmy Chandler

          Appeal from Escambia Circuit Court (CV-16-900090)

          PER CURIAM.

         On November 16, 2015, Jimmy Chandler was employed as a welder by AMEC Foster Wheeler Kamtech, Inc. ("AMEC"). Chandler felt a pain in his back upon lifting a pipe. Chandler reported the accident to his foreman, who suggested that he "walk it off." The next day, Chandler reported to his foreman that he was still suffering back pain, and the foreman sent Chandler to "safety," where he completed forms and was given "bio-freeze" and a patch, which, Chandler said, did not alleviate his pain. A few days after the accident, AMEC sent Chandler to a local physician, Dr. Mark Roberts, who ultimately referred Chandler to Dr. James West, an orthopedic surgeon specializing in spinal injury.

         Dr. West first evaluated Chandler on January 5, 2016. According to Dr. West, Chandler suffered from degenerative changes in his spine and had a "small protrusion" at the C6-7 vertebrae, a protrusion at the T7-8 vertebrae, and a protrusion at the L4-5 vertebrae. Dr. West believed that Chandler was suffering from chronic thoracolumbar strain and prescribed some medication and physical therapy. Dr. West restricted Chandler from lifting over 10 pounds and ordered that he avoid sweeping. After physical therapy was unsuccessful in improving Chandler's condition, Dr. West prescribed an epidural injection, which was administered on February 25, 2016. Dr. West prescribed a second epidural injection for Chandler on March 31, 2016. Chandler then missed three appointments, and, as a result, Dr. West placed Chandler at maximum medical improvement ("MMI") on June 14, 2016.

         In compliance with Dr. West's restrictions, AMEC placed Chandler on light duty in January 2016. However, Chandler suffered continuing pain that was exacerbated by his drive to work. He left AMEC's employ on January 11, 2016. At that time, AMEC was not paying Chandler any temporary workers' compensation benefits.

         Chandler testified that he had missed the appointments with Dr. West because he lacked transportation. He returned to Dr. West in August 2016, at which time he received another epidural injection. According to Dr. West, Chandler received further epidural injections in September 2016, January 2017, March 2017, and on February 2, 2018. Dr. West opined that Chandler had "markedly improved" after June 2016 and that Chandler would, as of the date of Dr. West's deposition in May 2018, "need [to seek] additional treatment ... once or twice a year ... for an epidural or injections."

         Chandler worked for other employers between the conclusion of his employment with AMEC in January 2016 and the time of trial in July 2018. Chandler worked for TEI Construction Services, Inc. ("TEI"), at three different locations, during 2016 and 2017. He worked for TEI in Georgia for a total of three weeks in April and May 2016. Chandler worked for TEI in Louisiana for four weeks in July and August 2016, for TEI in South Carolina for five weeks during February, March, and April 2017, and again for TEI in Georgia for three weeks in April and May 2017. According to Chandler, however, he supervised other welders and inspected their welds but did not perform any welding himself during his employment with TEI at any location. In April and May 2018, Chandler worked for "PPM" in Nebraska, where, he said, he primarily supervised other welders, did "prefab work," and "lined everything out"; Chandler testified that a friend had gotten him that position. Chandler also worked for R&J Construction ("R&J") "off and on to try and keep my bills paid," where, he said, he supervised others and did "a little bit of mechanic work now and then." Chandler explained that R&J was owned by a lifelong friend, who, Chandler said, employed him whenever that friend could "afford to keep me on." Chandler testified that, with the assistance of his nephew, he had performed bulldozer work with his own bulldozer in July 2018.

         Chandler testified that his back pain prevented him from performing the tasks required for his previous position of precision or specialty welder. He explained that specialty welders often have to work in unusual positions in order to perform the welds required by their jobs. Chandler testified that he could not bend into the awkward positions often required, and, he said, he had begun to shake when in pain, which, he said, negatively impacted his ability to hold and operate his equipment and to properly weld. According to Chandler, he had historically worked as a welder on "shutdowns," which Chandler described as "when a power company or a paper mill has either breakdowns or routine scheduled maintenance to where [that company] shut[s] the mill down; therefore, shutdowns. And [those companies] bring in outside contractors, like myself, to repair what's going on." Chandler said that shutdowns last for varied but limited periods.

         In July 2016, Chandler sued AMEC in the Escambia Circuit Court ("the trial court"), seeking workers' compensation benefits under the Alabama Workers' Compensation Act, codified at Ala. Code 1975, § 25-5-1 et seq. After a trial held on July 30, 2018, the trial court entered a judgment on September 18, 2018, awarding Chandler workers' compensation benefits based on the trial court's finding that Chandler had suffered a 35% vocational disability. AMEC appeals.

         Our review of workers' compensation judgments is well settled. "In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence." Ala. Code 1975, § 25-5-81(e)(2). Our supreme court has explained that a trial court's finding of fact is supported by substantial evidence if it is "supported by 'evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.'" Ex parte Trinity Indus., Inc., 680 So.2d 262, 269 (Ala. 1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989)); see also Ala. Code 1975, § 12-21-12(d). In completing our review, this court "will view the facts in the light most favorable to the findings of the trial court." Whitsett v. BAMSI, Inc., 652 So.2d 287, 290 (Ala. Civ. App. 1994), overruled on other grounds, Ex parte Trinity Indus., 680 So.2d at 269. Further, we review legal issues without a presumption of correctness. See Ala. Code 1975, § 25-5-81(e)(1).

         On appeal, AMEC first argues that the trial court erred by awarding Chandler workers' compensation benefits based on his alleged vocational disability. According to AMEC, because Chandler had returned to work for an equal or higher hourly wage after his injury, the trial court was limited by Ala. Code 1975, § 25-5-57(a)(3)i. ("the return-to-work statute"), to awarding Chandler benefits based solely on his physical impairment. The return-to-work statute states, in pertinent part:

"If, on or after the date of maximum medical improvement, except for scheduled injuries as provided in [Ala. Code 1975, §] 25-5-57(a)(3), an injured worker returns to work at a wage equal to or greater than the worker's pre-injury wage, the worker's permanent partial disability rating shall be equal to his or her physical impairment and the court shall not consider any evidence of vocational disability."

         AMEC asserted its argument regarding the applicability of the return-to-work statute before the trial court, which rejected that argument in its final judgment, stating:

"[T]he return-to-work statute does not apply when the employee is no longer working at the time of the initial disability determination by the court. Pemco Aeroplex, Inc. v. Moore, 775 So.2d 215 (Ala. Civ. App. 1999), overruled in part by Grace v. Standard Furniture Mfg. Co., 54 So.3d 909');">54 So.3d 909 [(Ala. Civ. App. 2010)]; 1 Terry A. Moore, Alabama Workers' Compensation § 13:52 (1998)."

         Thus, the trial court determined that, because Chandler was not actively employed on the date of the trial, he had not "return[ed] to work," as that term is used in the return-to-work statute. AMEC contends that the trial court erred by failing to apply the return-to-work statute and by applying Pemco Aeroplex v. Moore, 775 So.2d 215 (Ala. Civ. App. 1999). However, we need not resolve whether Chandler's intermittent employment after he left AMEC's employ amounted to a return to work under the statute despite the fact that he was not employed at the time of trial. AMEC argues that Chandler was making an equal or higher average weekly wage by pointing out that Chandler earned a higher hourly rate and per diem while working for other employers after leaving AMEC's employment and for an equal rate of pay but a much higher per diem amount after reaching MMI.

         However, the term "wages" in the return-to-work statute refers to an employee's average weekly wage, see Ala. Code 1975, § 25-5-1(6) (equating the term "wage" with "average weekly earnings"), and Farmers Home Gin v. Christopher, 668 So.2d 796, 797-98 (Ala. Civ. App. 1995) (applying the return-to-work statute and § 25-5-1(6), Ala. Code 1975, and comparing the employee's average weekly wage before and after his injury), which, in relation to short-term or seasonal workers, is determined by dividing the employee's gross wages by the number of weeks the employee worked, unless the result of that calculation would be unfair or unjust to one of the parties. See Ala. Code § 25-5-57(b); Meinhardt v. SAAD's Healthcare Servs., Inc., 952 So.2d 368, 378 (Ala. Civ. App. 2006). In the present case, AMEC has provided this court a summary detailing the hourly rate and per diem wages Chandler earned after leaving AMEC's employ, but AMEC did not, below or on appeal, calculate Chandler's post-injury or post-MMI average weekly wage in accordance with the return-to-work statute; thus, Chandler had no ability to argue that any such calculation of his average weekly wage would be unfair or unjust. See Slay Transp. Co. v. Miller, 702 So.2d 142, 143 (Ala. Civ. App. 1997) (indicating that "when it is impractical to reach a just and fair result by applying the formulas set out in § 25-5-57(b), the determination of the employee's average weekly wage is left to the sound judgment and discretion of the trial court"). This court cannot assume that Chandler's higher hourly rate of pay during his limited employment periods after leaving AMEC's employ equated to a higher average weekly wage than what he had earned working for AMEC. See, e.g., 3-M Co. v. Myers, 692 So.2d 134, 139 (Ala. Civ. App. 1997) (noting that an employee who earned a higher hourly rate of pay in post-MMI employment did not actually earn a higher average weekly wage because of the lesser number of hours worked). Furthermore, this court is not required to perform the proper calculations or provide the appropriate authority relating to those calculations for AMEC in order to support its argument. See Grieser v. Advanced Disposal Servs. Alabama, LLC, 252 So.3d 664, 673 (Ala. Civ. App. 2017) (quoting White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala. 2008)) ("'Rule 28(a)(10)[, Ala. R. App. P., ] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party's position. If they do not, the arguments are waived.'"); see also Cummings v. Cummings, 215 So.3d 1107, 1109 (Ala. Civ. App. 2016) (explaining that a trial court would not be held in error when a party did not present evidence of the calculations supporting her claim for relief). AMEC failed to demonstrate that Chandler actually returned to work making a higher average weekly wage, and, thus, we cannot place the trial court in error for failing to apply the return-to-work statute.

         AMEC next argues that Chandler's admission on cross-examination that his back "felt worse" after he worked long hours implicates the last-injurious-exposure rule, which, according to AMEC, would preclude Chandler from receiving workers' compensation benefits from AMEC.

"'"Under the last-injurious-exposure rule, the carrier covering the risk at the time of the most recent compensable injury bearing a causal relation to the disability bears the responsibility to make the required workers' compensation payments. 'The characterization of the second injury as a new injury, an aggravation of a prior injury, or a recurrence of an old injury determines which insurer is liable.'"'
"Hooker Constr., Inc. v. Walker, 825 So.2d 838, 845 (Ala. Civ. App. 2001) (quoting Ex parte Pike County Comm'n, 740 So.2d 1080, 1083 (Ala. 1999)) (internal citations omitted in Walker); see also Kohler Co. [v. Miller], 921 So.2d [436, ] 444-45 [(Ala. Civ. App. 2005)] (applying the last-injurious-exposure rule to successive employers as opposed to insurance carriers). Because the terms 'aggravation' and 'recurrence' ...

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