CVS/Caremark Corp. v. Washington

• Citation: 121 So.3d 391
• Decision Date: 15 February 2013
• Docket Number: 2110185.
• Parties: CVS/CAREMARK CORPORATION v. Gloria WASHINGTON.
• Court: Alabama Court of Civil Appeals

121 So.3d 391

CVS/CAREMARK CORPORATION

v.Gloria WASHINGTON.

2110185.

Court of Civil Appeals of Alabama.

Feb. 15, 2013.

Scott M. Roberts and Amanda L. Mink of Roberts & Associates, P.C., Birmingham, for appellant.

Stevan K. Goozée, Birmingham, for appellee.

PER CURIAM.

CVS/Caremark Corporation (“CVS”) appeals from a judgment awarding Gloria Washington permanent-total-disability benefits under the Alabama Workers' Compensation Act, § 25–5–1 et seq., Ala.Code 1975 (“the Act”). We affirm.

Washington was employed as a packer and shipper in CVS's mail-order-pharmacy warehouse from 2002 to 2010. In February 2008, Washington injured her right shoulder when she fell over a pallet jack in the CVS warehouse. Following shoulder surgery and a period of rehabilitation, Washington returned to work in September 2008 with light-duty restrictions and accommodations. She continued to experiencepain in her shoulder and neck, however; typically, she either left work early or missed work altogether two or three days each week. In August 2009, Washington filed a complaint seeking benefits under the Act for a permanent total disability.

In April 2010, Washington's physician changed her work restrictions from light duty to “sedentary work only, with no pushing or pulling over zero pounds with the right arm, no reaching above the shoulder level on the right side, and no repetitive motion with the right arm.” In July 2010, Washington informed her supervisor that she was going to have to quit work because she could not lift anything and she was in constant pain. Washington's supervisor informed her that the warehouse was scheduled to close in October 2010 and encouraged her to stay until that time so that she could receive severance pay. Washington worked until October 29, 2010, when the CVS mail-order-pharmacy warehouse closed.

The case was tried in July 2011, based primarily on the parties' stipulations, Washington's medical records, and the deposition testimony of vocational experts for both parties. Washington was the sole live witness. Her vocational expert, John M. Long, Jr., stated that, if Washington's pain were controlled so that she could work according to her functional capacity evaluation (“FCE”), she would have a vocational disability of 55 to 60 percent. However, with pain at the level Washington reported, Long opined that Washington was completely unable to work. Russ Gurley, the vocational expert retained by CVS, stated: “Based on the ability to work full-time at the levels recommended by the FCE and by [her treating physicians], considering Ms. Washington's demonstrated ability to perform light duty work for two years after her shoulder surgery, and considering loss of access to jobs and wage loss, Ms. Washington has a vocational disability rating of 40 to 50 percent.”

At the time at trial, Washington was 54 years old. She has an 11th-grade education but does not have a general equivalency diploma. She testified that she had been employed by HealthTex, a manufacturer of children's clothing, for 25 years. After the HealthTex plant closed in 2001, Washington drew unemployment-compensation benefits for a year and then went to work for CVS. After the CVS warehouse closed in 2010, Washington neither worked nor sought work because, she said, the pain in her neck and shoulder prevented her from working. She stated that the pain also prevented her from doing her household chores and that she “sit[s] at home, watching TV mostly.”

Washington acknowledged that she had applied for and had been receiving unemployment-compensation benefits of $238 per week since October 2010, when the CVS warehouse closed, and that she had also applied for Social Security disability benefits. Counsel for CVS, without objection, cross-examined Washington at length about the inconsistency between her application for and receipt of unemployment-compensation benefits and her claim that she was permanently and totally disabled. Washington stated that, in order to continue to receive unemployment-compensation benefits, she completes a weekly on-line recertification of her eligibility for the benefits by answering questions on a computer form provided by the Department of Industrial Relations (“DIR”). ¹ Initially, Washington testified that she had respondedto the DIR questions regarding whether she was “mentally and physically able to work” and “available for and seeking work in Alabama” by answering “no,” because, she said, she was neither able to work, nor available for work, nor seeking work.² She maintained that, despite such answers, she had “continued to receive benefits anyway.” During further cross-examination, however, the following occurred:

“Q. [By counsel for CVS]: In order to receive unemployment-compensation benefits, you must be able to work. Are you able to work?

“A. [By Washington]: No.

“Q. Have you told the State of Alabama you're not able to work?

“A. No.

“Q. As far as they know, you are able to work?

“A. Yes.”

Washington also testified that she had applied for Social Security disability benefits and that her application was pending. Counsel for CVS questioned her further:

“Q. And when you applied for Social Security disability benefits, are you claiming that you are unable to work?

“A. Yes, sir, I'm unable.

“Q. So you understand you're telling the State of Alabama that you're able to work, and you're telling the federal government you're unable to work. Is that your understanding?

“A. Yes.

“Q. And you're going to continue to make a claim for Social Security disability after today?

“A. I'm not—I can't work.

“Q. Okay. And you're going to continue to receive unemployment compensation from the State of Alabama as long as you can?

“A. Yes.”

In a supplemental posttrial brief, CVS argued that Washington's application for and receipt of unemployment-compensation benefits was inconsistent with her permanent-total-disability claim and that her permanent-total-disability claim was, therefore, barred by the doctrine of judicial estoppel.³ On August 19, 2011, the trial court rendered and entered a judgment containing the following conclusions of law:

“The court finds that [Washington] is permanently and totally disabled from gainful employment as a result of the subject on-the-job-injury. The court notes that [Washington] applied for and received unemployment benefits following her employment with CVS. While the court certainly does not condone her actions in that regard, the Court finds that Washington's claim for permanent and total disability is supported by substantial evidence. The court further notes that there is no provision under Alabama's Workers' Compensation Act that prohibits a plaintiff from pursuing workers' compensation benefits if [she has] applied for and received unemployment compensation. Florence Enameling Co. v. Jones, 361 So.2d 564 (Ala.Civ.App.1978).”

CVS filed a timely postjudgment motion, (a) asserting judicial estoppel as an affirmative defense (which defense, CVS insisted, had been presented and litigated at trial), (b) complaining that the trial court had made no findings or conclusions responsive to the judicial-estoppel issue, and (c) attempting to distinguish Florence Enameling Co. v. Jones, 361 So.2d 564 (Ala.Civ.App.1978), the decision upon which the trial court had relied in holding that Washington's receipt of unemployment-compensation benefits did not prohibit her from being awarded permanent-total-disability benefits under the Act.

Washington moved to strike the judicial-estoppel defense, arguing that CVS had waived that defense by failing to assert it in its answer or other responsive pleading. Following a hearing at which the parties' counsel presented oral argument, the trial court rendered and entered an order denying CVS's postjudgment motion and granting Washington's motion to strike the affirmative defense of judicial estoppel. The trial court addressed the judicial-estoppel issue as follows:

“The court specifically addressed the evidence regarding the unemployment benefits received by [Washington] in its order, noting that while the court did not condone [Washington's] conduct in that regard, such evidence was only one piece of evidence considering [Washington's] claim for disability. The court noted further that there was other competent and substantial evidence supporting [Washington's] claim of permanent and total disability, most of which was undisputed.

“From a judicial-estoppel perspective, while it is true that [Washington] represented to the state for a period of time that she was, in effect, willing and able to do some type of work in order to receive those [unemployment-compensation] benefits, the court again notes that there was other substantial, competent, and mostly undisputed evidence that supports her claim for permanent and total disability when all the evidence is viewed and weighed in its totality.

“The court also considered [Washington's] objection/motion to strike affirmative defense of judicial estoppel. Affirmative defenses are required to be specially [pleaded] in an answer or other responsive pleading. Rule 8(c), Ala. R. Civ. P. However, Rule 15(b), Ala. R. Civ. P., allows for such amendments to conform with the pleadings. In this case, defense counsel claims that they did not plead the affirmative defense of judicial estoppel in their answer or a responsive pleading because they were unaware that [Washington] had applied for and received unemployment benefits for a period of time following her job ending with [CVS], until she testified in that regard at trial. The court takes judicial notice of the fact that when an employee makes a claim for such benefits, the employer is immediately notified of the claim by the state in order for the employer to object to the claim. Therefore, [CVS] should have had prior knowledge of the claim long before trial that would have triggered a duty to amend the answer to plead this affirmative defense.

“[C]ounsel [for CVS]...