On Aug. 16, the Alabama Court of Civil Appeals released its opinion in Victoryland v. Patricia Dianne Arnold wherein it addressed the successive compensable injury test.

Mike Fish

Specifically, it affirmed the trial court’s judgment that a subsequent motor vehicle accident that exacerbated a worker's compensable low-back injury did not qualify as the type of intervening event that would relieve the employer from its responsibility to provide medical benefits.

The trial court considered the employer’s motion for relief from future responsibility based on an MVA that occurred approximately nine years after the court approved a workers’ compensation settlement concerning the low back that left medical benefits open. It also considered evidence that the employee was deciding whether to proceed with a third low-back surgery at the time she was involved in the MVA. The employee testified that the accident resulted in exacerbated low-back pain that radiated down into both legs.

The employee took a position in the MVA lawsuit that her low-back condition was exacerbated as a result of that accident. In the workers’ compensation matter, the employee took the position that, despite the exacerbation, her employer should remain on the hook for medical benefits. The trial court denied the employer’s motion for relief, so the company appealed the decision.

The Court of Appeals did not agree with the employer’s position that the employee was judicially estopped from taking inconsistent positions in the workers’ compensation and MVA cases. Specifically, it was the employer’s position that since the employee alleged a permanent exacerbation of her low back as a result of the MVA in one proceeding, she could not also assert in another proceeding that an intervening event that severed the chain of causation had not taken place. The court disagreed with the employer’s position by stating that the positions, while inconsistent, were not so inconsistent as to warrant applying the doctrine of judicial estoppel.

The court also considered the employer’s position that an MVA is not the type of routine event or “customary activity” that would allow the employee to connect her current need for medical benefits to the original workers’ compensation claim under the successive compensable injury test (which states generally that employer is not relieved of responsibility when it is established that the later injury is the direct and natural result of the compensable work injury).

The court noted that an MVA is an unusual, traumatic event and pointed out that case law cited in the briefs did not address whether such events should be treated as intervening causes. The court expanded its research beyond the cases cited by the parties to consider a case specifically involving an MVA wherein the plaintiff filed a petition seeking an order compelling medical treatment after the defendant denied treatment following the accident. In that case, the trial court denied the plaintiff’s motion, and the Court of Civil Appeals reversed that decision.

Although it did not state as much, the court applied what amounted to a reverse eggshell doctrine theory. The eggshell doctrine states that you take the plaintiff as you find him or her, for purposes of determining damages. It provides that plaintiffs who are far more susceptible to a particular harm than the average person may nonetheless recover full damages without reduction. So, applying the eggshell doctrine in the MVA case allowed the employee to maximize her recovery against the third-party driver.

In the Victoryland opinion, however, the court relied on a reverse application because it found that the employee was more susceptible to a particular harm (aggravation to the compensable low back) than the average person. So, in the liability case, her eggshell condition put responsibility for the increased damage on the liable third party and, in the workers’ compensation case, that same condition put the responsibility on the employer.

My 2 cents

Though the court did not say as much, this type of situation really comes down to the specific facts of a case: the seriousness of the preexisting condition versus the seriousness of the “unusual traumatic event.” Other factors to consider would be whether the injured employee was actually acting in a routine and customary manner at the time of the accident.

In the Victoryland case, it was noted that the employee was driving her two grandchildren, so she was not likely to have been driving in an unsafe or erratic manner. However, in situations where the driver was driving in an unsafe manner, that could certainly be used in support of a motion for relief from future liability of medical benefits.

A few more cents

Of note, the employer formerly asserted its subrogation rights in the MVA case. The employer continued to pay for the low-back injury medical treatment and, when the employee recovered from the other driver in the motor vehicle accident case, the employer received $46,950.81 in satisfaction of its subrogation lien.

The lesson to be learned here is that the right to a subrogation recovery and the statutory right to reimbursement can extend to any event involving third-party liability that increases the amount or duration of medical benefits in your workers’ compensation case.

Mike Fish is an attorney with Fish Nelson & Holden LLC, headquartered in Birmingham, Alabama. This entry is republished, with permission, from the firm's Alabama Workers' Comp Blawg.