In Grieser v. Advanced Disposal Services Alabama, LLC, 26 ALW 33-4 (2160290), 8/11/17, the Court of Civil Appeals reversed a trial court’s refusal to consider the employee’s vocational disability and held that separate circumstances relieving an employer’s liability under the “Return to Work” statute are affirmative defenses which must be plead or are deemed waived.

On January 21, 2010, while in the course and scope of employment with Advanced Disposal Services Alabama, LLC, (“Defendant”), employee Jack Grieser (“Plaintiff”) sustained a back injury while stepping down from a flatbed truck onto a concrete loading ramp.  Medical benefits were authorized and approved by Defendant, and Plaintiff reached Maximum Medical Improvement (“MMI”) for said injury on July 23, 2010.  Plaintiff returned to work at a wage equal to or greater than his pre-injury wage, but then his employment was terminated in January 2011.

Plaintiff filed his lawsuit against Defendant in February 2011 seeking worker’s compensation benefits relating to the subject on-the-job injury.  In November 2011, Plaintiff amended his Complaint to add a retaliatory discharge claim under Ala. Code 1975, § 25-5-11.1.  Defendant filed timely Answers to both Complaints and included specific affirmative defenses therein.  Defendant did not plead the "Return to Work" statute as an affirmative defense.

On March 9, 2015, Defendant filed a Motion in Limine requesting that the trial Court enter an Order precluding Plaintiff from offering any evidence at trial relating to vocational impairment or disability arguing that Plaintiff’s employment was terminated due to his own misconduct and not because of any issues relating to his on-the-job injury.  Plaintiff argued in opposition that because Defendant had not asserted this defense in its Answers that Defendant had waived its right to assert this defense at trial.  The trial Court agreed with Defendant, and on January 26, 2016, entered an Order declining to award vocational disability benefits to Plaintiff.  Plaintiff appealed and the Court of Civil Appeals reversed the trial Court’s decision with regard to this issue.

In a lengthy discussion regarding the “Return to Work” statute, the Court held that Ala. Code 1975, § 25-5-57(a)(3)i.(i) - (v) created five (5) separate affirmative defenses available to an employer and that references to the applicability of the Act and exclusivity provisions contained in the Act were affirmative defenses separate and apart from the return-to-work statute.  Accordingly, the Court held that because Defendant failed to specifically plead as an affirmative defense that Plaintiff’s loss of employment was due to misconduct under Ala. Code 1975, § 25-5-57(a)(3)i.(iv), Defendant waived its right to raise this defense at trial.