February 10th, 2020
workers compensation
ALABAMA COURT OF CIVIL APPEALS FINDS EMPLOYER FAILED TO PROVE EMPLOYEE RETURNED TO WORK MAKING THE SAME OR GREATER AVERAGE WEEKLY WAGE AND THE RETURN TO WORK STATUTE DID NOT APPLY

On October 4, 2019, the Alabama Court of Civil Appeals released AMEC Foster Wheeler Kamtech, Inc. v. Chandler, -- So. 3d --, 2019 WL 4894327 (Ala. Civ. App. 2019), which found the employer, Defendant AMEC Foster Wheeler Kamtech, Inc., failed to prove the employee, Plaintiff Jimmy Chandler, returned to work making the same or greater average weekly wage (“AWW”) and that Ala. Code § 25-5-57(a)(3)i (the “return-to-work” statute) did not apply to prevent the trial court from awarding damages based on Plaintiff’s vocational impairment.

Plaintiff Jimmy Chandler (“Plaintiff”) was employed by Defendant AMEC Foster Wheeler Kamtech, Inc. (“Defendant”) as a precision welder. Plaintiff claimed that on November 16, 2015 he injured his back while lifting a pipe at work. On January 5, 2016, Dr. James West, an orthopedist, diagnosed Plaintiff with disc protrusions at C6-7, T7-8 and L4-5. Dr. West restricted Plaintiff from lifting over 10 pounds and ordered he avoid sweeping. Defendant placed Plaintiff on light duty based on Dr. West’s restrictions. Plaintiff claimed that he suffered back pain which was exacerbated by driving to work and left his employment with Defendant on January 11, 2016.

Plaintiff continued treatment with Dr. West, and after physical therapy failed to resolve Plaintiff’s back pain, Dr. West prescribed epidural steroid injections (“ESIs”) which Plaintiff underwent on February 25 and March 31, 2016. Plaintiff then missed three appointments with Dr. West, reportedly due to lack of transportation, which resulted in Dr. West placing Plaintiff at maximum medical improvement (“MMI”) on June 14, 2016. Plaintiff filed suit in Escambia County in July 2016.

Plaintiff returned to Dr. West in August 2016 and received additional ESIs in September 2016, January 2017, March 2017 and February 2018. Dr. West testified in May 2018 that Plaintiff’s condition had markedly improved, although he may need one or two ESIs per year.

The case proceeded to trial on July 30, 2018. Plaintiff testified that his ability to perform precision welding was limited by his back injury. Defendant presented evidence at trial showing Plaintiff worked for several employers after leaving his employment with Defendant. Plaintiff worked for TEI Construction (“TEI”) in several states during 2016 and 2017 supervising welders. Specifically, Plaintiff worked for TEI in Georgia for three weeks in April and May 2016, in Louisiana for four weeks in July and August 2016, and in South Carolina for five weeks in February, March and April 2017. Evidence also showed Plaintiff worked for PPM in Nebraska in April and May 2018 and off and on for R&J Construction at various times before trial. Plaintiff was earning a greater hourly wage and greater per diem with these employers than he earned with Defendant before the accident. However, Defendant did not present the amount it contended was Plaintiff’s average weekly wage based on his subsequent employment.

At trial, Defendant contended that Plaintiff’s recovery was limited to his physical impairment based on Ala. Code § 25-5-57(a)(3)i, which provides:

“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.”

The trial court rejected Defendant’s argument and awarded Plaintiff permanent partial disability damages based on its finding Plaintiff suffered a 35% vocational impairment. The trial court found the return-to-work statute did not apply because Plaintiff was not working when the case was tried.

Defendant appealed and contended the trial court erred in awarding benefits based on Plaintiff’s vocational disability. Defendant presented a summary of Plaintiff’s hourly wages since the accident. The Court of Civil Appeals noted that, despite providing the wage summary, Defendant had not calculated Plaintiff’s post-accident or post-MMI average weekly wage in accordance with the return-to-work statute.  The Court of Civil Appeals concluded that Defendant failed to demonstrate that Plaintiff actually returned to work after the accident making a greater average weekly wage and that the trial court did not err by not applying the return-to-work statute to Plaintiff’s claim.

The Chandler decision is significant for employers, carriers, and claims analysts handling worker’s compensation claims because it illustrates the importance of providing the trial court a clear post-accident average weekly wage calculation to support an argument that the return-to-work statute applies. This case makes it clear that the pre-injury and post-injury comparison should be based on the employee’s average weekly earnings, not the employee’s hourly wage. Sometimes an employee will return to work making a greater hourly wage, but may be earning a lower average weekly wage because the employee is working less hours or is no longer working overtime. So, it is important to gather payroll records during discovery that establishes not only the new hourly rate, but also the new average weekly wage.

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