From the Files of Powell and Denny
Today’s “From the Files of Powell and Denny,” involve a workers’ compensation case we tried in Bessemer, Alabama in Jefferson County in 2008.
Our client was employed by Hanna Steel Corporation in Fairfield, AL and was employed to perform various jobs such as: as a tire changer/repairer, a roofer, a maintenance man for the defendant and as a laborer/bander. In 2004 our client suffered a job injury to his right arm when it became caught in a conveyor belt at work, mashing his arm between a piece of steel and over a thousand pounds of steel pipes. This workplace accident was witnessed by other employees and notice was immediately provided to Hanna Steel. A First Report of Injury was completed and our client was sent for medical treatment to Occupational Health Clinic for medical treatment for pain in his right arm and neck.
After weeks of treatment did not alleviate our client’s pain, he requested a Panel of Four and chose Dr. Perry Savage at OrthoAlabama Spine and Sports as his new authorized treating physician. Dr. Savage had an MRI performed (after some initial resistance by Hanna), and the MRI revealed that our client was suffering with an especially large herniated disk at C5-6 and carpel tunnel syndrome in his right arm.
Dr. Savage performed an anterior cervical fusion on our client and two months later allowed out client to return to sedentary work. At this time Hanna Steel created a job for our client that fell within his work restriction in a guard shack. Hanna later testified at trial that this position was not one that existed at the time of our client’s injury and that it was made available in order to get him back to work-this was important later on when we had to try this case.
Several months later our client was placed at maximum medical improvement, given a 25% permanent impairment rating, prescribed pain medication and released to try to return to work. Hanna Steel initially put our client back to work in a bander position, but our client was unable to perform this job as it aggravated his pain. At this time Dr. Savage opined that our client was limited permanently to sedentary work and that the created guard shack position was the only job our client could perform, and Hanna informed our client that the only guard shack position they would make available was on the 3rd Shift. There really was not anything for our client to do during the 3rd shift as Hanna did not want him to walk the grounds doing security as they already had a Security Company hired to do this, so he would just sit in the shack, and given the side effects of his pain medication, he would often fall asleep. Our client was offered a package to leave his employment and he took it.
When we began discussing a potential settlement, the attorneys for Hanna Steel argued that the guard shack position was a real job, and not a sheltered one created for him, which was ludicrous to us. You see, a “sheltered” position is not a job available to the generally public, and Alabama law states that “[I]f a job would have to be created…in order for the employee to engage in any employment, the court may find the ‘creative’ employment is not sufficiently dependable to constitute gainful employment. A job specifically designed to provide the disabled employee a means of earning wages would certainly not be available in the normal labor market in which the employee works….” T.Moore, Alabama Workers’ Compensation, §13.60 (1998). See M.C. Dixon Lumber Co. v. Phillips, 642 So.2d 477, 479 (Ala.Civ.App. 1994).
Our position was that our client was now permanently totally disabled as a result of his job injury, and the defendant was arguing that our client was limited to being reimbursement based solely on his permanent impairment rating, so we filed suit.
Trial was held for a day, and the Judge agreed with our argument, and awarded our client total disability benefits.
This case was a good case that explored what “sheltered employment” is, and the importance of having an experienced Alabama Workers Compensation attorney who knows the law and is able to explain the law to the Court of the law as well.
If you have suffered a work injury and you have questions about your right to Alabama workers’ compensation benefits, don’t hesitate to contact Powell and Denny and speak with one of the experienced workers compensation lawyers and schedule a free consultation and let us see if we can help. Appointments are available in person, or virtually through Zoom for your convenience from wherever you live.
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Mr. Denny is AV rated by Martindale Hubbard (the highest rating possible) and Mr. Powell has been rated as Superior by The National Registry
+ Powell and Denny have successfully represented injured workers from Birmingham, Huntsville, Florence, Muscle Shoals, Tuscumbia, Athens, Decatur, Town Creek Ardmore, Hartselle, Madison, Toney, Scottsboro, Ft. Payne, New Hope, Guntersville, Albertville, Boaz, Ashville, Anniston, Gadsden, Cullman, Jasper, Gardendale, Morris, Kimberly, Centerpoint, Leeds, Tarrant City, Fairfield, Hueytown, Bessemer, Adger, Tuscaloosa, Cordova, Alabaster, Pelham, Harpersville, Opelika, Phenix City, Montgomery, Clanton, Calera, Enterprise, Monroeville, Mobile, Evergreen, Alabaster, Pelham, Trussville and towns and cities in between.
From the Files of Powell and Denny