Grieser v. Advanced Disposal Servs. Ala., LLC, 2160290

• Decision Date: 11 August 2017
• Docket Number: 2160290
• Citation: 252 So.3d 664
• Parties: Jack GRIESER v. ADVANCED DISPOSAL SERVICES ALABAMA, LLC
• Court: Alabama Court of Civil Appeals

252 So.3d 664

Jack GRIESER

v.ADVANCED DISPOSAL SERVICES ALABAMA, LLC

2160290

Court of Civil Appeals of Alabama.

August 11, 2017

Rehearing Denied October 13, 2017

Tracy W. Cary of Morris, Cary, Andrews, Talmadge & DRiggers, LLC, Dothan, for appellant.

John G. Smith, Kelly F. Pate, and Joseph Seawell Moore of Balch & Bingham LLP, Montgomery, for appellee.

MOORE, Judge.

Jack Grieser ("the employee") appeals from a judgment entered by the Crenshaw Circuit Court ("the trial court") to the extent that it awarded him permanent-partial-disability benefits under the Alabama Workers' Compensation Act ("the Act"), § 25–5–1 et seq., Ala. Code 1975, based, he says, on the wrong average weekly wage; declined to award him benefits based on his alleged vocational impairment; and denied his request to hold Advanced Disposal Services Alabama, LLC ("the employer"), in contempt of court. We affirm the judgment in part and reverse it in part.

Facts and Procedural History

On February 7, 2011, the employee filed a complaint in the trial court, alleging that he had suffered an on-the-job injury and seeking workers' compensation benefits from the employer. On March 8, 2011, the employer answered the complaint. The employee amended his complaint on March 16, 2011, to correct an error in the employer's name. The employer answered the amended complaint on March 21, 2011.

On November 21, 2011, the employer filed a motion requesting a determination regarding whether it was obligated to pay for pain-management treatment for the employee. That same day, the employee amended his complaint to add a claim alleging retaliatory discharge. The employer filed an answer to the second amended complaint on November 30, 2011. On March 14, 2012, the trial court entered an order requiring the employer to provide pain-management treatment for the employee.

On June 9, 2014, the employer filed a motion for a partial summary judgment on the retaliatory-discharge claim. The employee filed a response to the partial-summary-judgment motion on October 20, 2014. On December 16, 2014, the trial court entered a partial summary judgment in favor of the employer on the retaliatory-discharge claim.

On March 9, 2015, the employer filed a motion in limine requesting "an Order precluding [the employee], [the employee's] witnesses, and [the employee's] counsel from offering any evidence or giving any testimony concerning, or making any argument about or [in] reference to, or asking any questions or soliciting testimony about, any alleged vocational impairment or vocational disability of the [employee]." The employer argued that Ala. Code 1975, § 25–5–57(a)(3) i. ("the return-to-work statute"), a part of the Act, precluded the employee from offering evidence of vocational disability. Specifically, the employer argued that the employee had "return[ed] to work at a wage equal to or greater than the [employee's] pre-injury wage," § 25–5–57(a)(3) i., and that, although the employee's employment had subsequently been terminated, it had been terminated "for actual or threatened misconduct committed in connection with his ... work after previous warning to the employee," § 25–5–57(a)(3) i.(iv). In the alternative, the employer moved for a partial summary judgment on that issue.

On March 15, 2015, the employee filed an objection to and a motion to strike the employer's motion in limine or, in the alternative, for a partial summary judgment. The employee argued, among other things, that the entirety of the return-to-work statute, as well as the portion of the statute regarding whether the employee's employment had been terminated "for actual or threatened misconduct committed in connection with his ... work after previous warning to the employee," were affirmative defenses. He asserted that, because the employer had not raised those defenses in its answer, those defenses were waived. On March 19, 2015, the trial court held a trial at which it heard, among other evidence, testimony regarding the employee's vocational disability.

On January 22, 2016, the employee filed a motion requesting that the trial court hold the employer in contempt for its failure to pay for the employee's pain-management treatment. The employee specifically argued that the employer had failed to pay for an injection of medication that the employee had received in November 2015 to treat the employee's pain and that the employer had requested that the employee be weaned off of oral pain medications that his physician had deemed medically necessary.

On January 26, 2016, the trial court entered an order, stating, in pertinent part:

"2. [On January 21, 2010], [the employee] suffered an accident arising out of and in the course of his employment. The accident occurred when [the employee] stepped down from a flatbed truck onto a concrete loading ramp while performing his job duties for [the employer].

"....

"4. Ultimately, [the employee's] back injury was treated by physicians at Neurosurgery

& Spine Associates of Central Alabama. [The employee] also received and continues to receive pain-management treatment from the Pain Center of Montgomery. All of this treatment has been authorized and approved by [the employer] pursuant to the Act. There was no proof submitted at trial that [the employee] had incurred medical treatment or related expenses in connection

with his injury that had not been paid for by [the employer] and the Court finds that no such bills and expenses are presently due, owing or known to either party.

"5. Neurosurgery

& Spine Associates of Central Alabama determined that [the employee's] back injury resulting from the accident was due to ‘multifactorial issues; degenerative disc disease probably exacerbated by injury.’ The Court accepts this conclusion in making its determinations in this case. [The employee] is not a candidate for surgery for his back condition according to the evidence.

"6. [The employee] reached maximum medical improvement for his injury on July 23, 2010, and was assigned a 5% medical impairment to his body as a whole.

"7. At the time of his injury, [the employee's] average weekly wage with [the employer] was $491.66.

"8. Since [the employee's] injury is not scheduled under the provisions of the Act, [the employee] may receive permanent-partial-disability benefits for 300 weeks, less the number of weeks [the employee] was paid temporary-total-disability benefits. Ala. Code [1975,] § 25–5–57(a)(3) g. There was no proof offered at trial whether [the employee] received temporary-total-disability benefits or was due to receive temporary-total-disability benefits. Accordingly, the Court does not award such benefits and, therefore, [the employee] is due to receive 300 weeks of permanent-partial-disability benefits.

"9. [The employee] was returned to employment by [the employer] following his injury earning wages at least equal to those he had been earning at the time of the accident. He continued his employment with [the employer] following the date he reached maximum medical improvement, again earning wages at least equal to those he had been earning at the time of his on-the-job injury.

"10. [The employee] claims that the Court should determine his disability and, in turn, calculate the benefits that are due him under the Act based upon vocational impairment instead of medical impairment. He argues that, since his back injury is unscheduled and he lost his employment with [the employer] within 300 weeks from the date of his injury, the Court may award benefits based upon vocational impairment under Ala. Code [1975,] § 25–5–57(a)(3) i., the ‘Return to Work’ statute. [The employer] argues that [the employee's] disability may not be based on vocational impairment under the provisions of the Return–to–Work statute because it has shown, by clear and convincing evidence, that his loss of employment was due to actual or threatened misconduct in connection with his work after previous warning.

"11. The evidence demonstrated that [the employer] terminated [the employee's] employment in January 2011 after he had been involved in a dispute with a co-employee.... [The co-employee] provided [the employer] with a statement of what she contended occurred between her and [the employee] that led to [the employee's] termination from employment with [the employer]. That statement reflected that [the employee] acted toward [the co-employee] in a way that was racially and sexually harassing.

"12. Although he denied some of the conduct [the co-employee] alleged against him, [the employee] admitted to a dispute with [the co-employee] and that, had he acted in the manner alleged by [the co-employee], the employee would have been in violation of [the employer's] anti-harassment policies, that

he was aware of those policies at the time of the acts [the co-employee] alleged against him, and that he had been warned that, under those policies, he could be terminated from employment for acts of racial or sexual harassment.

"13. [The co-employee's] statement to [the employer] was admitted into evidence, as was her deposition in this matter. In her deposition, and while verifying her statement, [the co-employee] attempted to explain away that she was racially and sexually harassed by [the employee]. The Court finds this attempt by [the co-employee], whose employment had been terminated by [the employer] prior to her deposition for reasons unrelated to her dispute with [the employee], unpersuasive. The Court finds that [the employer] has proved by clear and convincing evidence that [the employee's] employment with [the employer] was terminated because [the employee] had committed an act of misconduct in connection with his employment after being warned by [the employer] that such conduct could result in his termination from employment. Accordingly, under Ala. Code [1975,] § 25–5–57(a)(3) i.(iv), [the employee] may not recover for vocational impairment and the Court declines to award him benefits upon any claimed vocational disability.

"1

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