United-Johnson Bros. of Ala., LLC v. Billups

350 So.3d 5

UNITED-JOHNSON BROTHERS OF ALABAMA, LLC

v.Luther BILLUPS; Employer's Claim Management, Inc. ; and Alabama Self-Insured Worker's Compensation Fund

2200122

Court of Civil Appeals of Alabama.

September 17, 2021

John C. Webb and Aaron D. Ashcraft of Lloyd, Gray, Whitehead & Monroe, P.C., Birmingham, for appellant.

Lawrence T. King of King Simmons, P.C., Birmingham, for appellee Luther Billups.

William H. Webster of Webster, Henry, Bradwell, Cohan, Speagle & DeShazo, P.C., Montgomery, for appellees Employer's Claim Management, Inc., and the Alabama Self-Insured Worker's Compensation Fund.

EDWARDS, Judge.

United-Johnson Brothers of Alabama, LLC ("the employer"), appeals from an October 1, 2020, judgment entered against it and in favor of Luther Billups by the Bessemer Division of the Jefferson Circuit Court ("the trial court") regarding Billups's claim under the Alabama Workers’ Compensation Act ("the Act"), Ala. Code 1975, § 25-5-1 et seq. The October 2020 judgment was based on the trial court's determination that a back injury suffered by Billups on February 12, 2019, was an aggravation of a back injury that he had suffered on October 18, 2016, while working for the employer and not a recurrence of the October 2016 injury. The October 2020 judgment also denied the employer's third-party claim against Employer's Claim Management, Inc. ("ECM"), and the Alabama Self-Insured Worker's Compensation Fund ("the ASIWCF"). The employer was a member of the ASIWCF when Billups's October 2016 injury occurred, and ECM administered workers’ compensation claims for the ASIWCF. The employer was not a member of the ASIWCF when Billups's February 2019 injury occurred.

Billups, who was a delivery-truck driver, injured his lower back in October 2016, while working for the employer, which is a beer and wine distributor. Billups received treatment for his October 2016 injury and returned to work, with light-duty restrictions. However, he continued to complain of back pain and eventually had back surgery on March 17, 2017. Martin P. Jones, an orthopedic surgeon, performed the surgery, which was an L4-L5 microdiskectomy. After the surgery, Billups did not return to work until after he had attained maximum medical improvement, which was on June 29, 2017. Billups's job for the employer involved repetitive lifting, but he was able to return to his full-time position, without restrictions. After returning to work, Billups continued to be treated by Dr. Jones and regularly complained of back pain, but Billups apparently never missed work for any back-related issues.

On December 13, 2017, after a hearing at which Billups testified, the trial court approved a settlement between him and the employer regarding the October 2016 injury.¹ Billups appeared pro se at the settlement proceedings. The settlement regarding Billups's October 2016 injury reflected that Billups had received $9,387.37 from the ASIWCF in temporary-total-disability benefits and that the ASIWCF had paid $39,322.85 in medical benefits. The parties acknowledged that Billups had received a 10% permanent-partial-disability rating to his body as a whole and that he had attained maximum medical improvement on June 29, 2017. Billups received an additional lump-sum payment of $13,862.13 from the ASIWCF "to settle any an all claims for compensation benefits due pursuant to the ... Act." Billups's "rights to vocational benefits and future medical benefits" were to remain open, but Billups released the employer, ECM, and the ASIWCF from any further liability for compensation under the Act.

Billups continued to work for the employer after the December 2017 settlement, and he continued to be treated by Dr. Jones for occasional pain. Dr. Jones also referred Billups to Dr. Michelle Turnley, who became Billups's pain-management physician. Billups continued to complain of back pain, and, eventually, he considered having a second back surgery. As to that surgery, he decided not to proceed at one point but then began reconsidering that decision. Messages that Billups left on Dr. Turnley's electronic patient portal before his February 2019 injury reflect that he had been complaining of pain, which he sometimes described as excruciating, since at least May 2018. Nevertheless, Billups continued to perform his job.

On December 21, 2018, Billups left a message on Dr. Turnley's patient portal that stated: "I need to make an appointment ASAP because I'm in a lot of pain the pain is in my back and both legs ...." He had also been seeking renewal of a pain prescription, but the office visit for that renewal had not yet been approved. On January 1, 2019, Billups left a message on the portal that stated: "I would like to schedule a [magnetic resonance imaging scan ] for my back to see what is going on because I'm in a lot of pain. I'm still trying to work, but its hurting me when I'm lifting, sitting, and driving, just want to know what's going on with my back before I decide to have another surgery." Dr. Turnley responded to that message by indicating that a magnetic resonance imaging scan ("MRI") could be ordered if Billups's pain had changed. On January 30, 2019, Billups posted the following message on the portal: "Yes my pain have changed it has gotten worse so I would like to have the MRI so I can proceed with surgery." A request was made for approval of the MRI, and, on February 11, 2019, Billups left the following message on the portal: "I was checking to see has the order for the new MRI been approved because I'm still working and in pain when lifting, driving, bending, sitting, also in pain when laying down in bed."

The MRI was scheduled for and conducted on February 19, 2019. However, in the interim, Billups again injured his back on February 12, 2019. The injury occurred when he was lifting the 200-pound lift gate on his delivery truck. According to Billups's allegations, he felt a pop in his back and "a lot of pain. Sharp pain." It is undisputed that Billups notified the employer of his February 2019 injury.

Dr. Jones again examined and treated Billups after the February 2019 injury, and Billups apparently worked in a light-duty position for the employer until May 20, 2019. The employer then asked him not to return to work until he was "a hundred percent." Billups allegedly could not return to his full-duty position, and he did not return to work for the employer.

On September 3, 2019, Billups filed a complaint against the employer in the trial court. Billups alleged that his February 2019 injury might have been a new injury or an aggravation of the lower back injury he had suffered in October 2016. He also alleged that disputes existed regarding whether he was entitled to temporary-total-disability benefits under the Act, which workers’ compensation insurer was responsible for his medical benefits, and whether he had suffered additional permanent partial disability or permanent total disability. Billups sought all benefits to which he was entitled under the Act.

After Billups filed his complaint, the employer filed a third-party complaint against ECM and the ASIWCF. See Kohler Co. v. Miller, 921 So. 2d 436, 438 (Ala. Civ. App. 2005). The employer alleged that Billups's February 2019 injury was a recurrence of his October 2016 injury and that ECM and the ASIWCF were responsible for all workers’ compensation benefits that Billups was entitled to under the Act for his February 2019 injury. ECM and the ASIWCF filed an answer denying that the February 2019 injury was a recurrence of Billups's October 2016 injury.

The parties filed pretrial briefs arguing their respective positions regarding whether the February 2019 injury was a recurrence or an aggravation of Billups's October 2016 injury. On May 27, 2020, the trial court held an ore tenus, virtual hearing regarding Billups's complaint and the employer's third-party complaint. Billups testified at that hearing, and the trial court also received into evidence Dr. Jones's deposition testimony and documentary evidence, including medical records, pharmacy records, and e-mail discussions from the electronic patient portal of Dr. Turnley. The following facts were also stipulated by the parties. Billups was injured in work-related accidents in October 2016 and February 2019 while working for the employer, which is subject to the Act. Billups's average weekly wage at the time of the February 2019 accident was $845 plus $123.70 in health-care benefits. The employer continued to provide fringe benefits to Billups until December 31, 2019, at which time Billups's employer-provided health-care benefits were terminated. Billups's average weekly wage for purposes of calculating the compensation rate after December 31, 2019, was $968.70. The parties further stipulated that ECM and the ASIWCF had entered into a settlement agreement with Billups following the October 2016 accident, that they would be responsible for any workers’ compensation benefits owed to Billups if his February 2019 injury was a recurrence of his October 2016 injury, but that the employer, through its workers’ compensation insurance provider, would be responsible for all workers’ compensation benefits owed to Billups if his February 2019 injury was an aggravation of his October 2016 injury or a new injury. It was likewise stipulated that, based on the settlement agreement, ECM and the ASIWCF remained responsible "for all medical benefits arising from the October [2016] injury."

The parties filed posttrial briefs, again arguing their respective positions regarding whether the February 2019 injury was a recurrence or an aggravation of Billups's October 2016 injury. On October 1, 2020, the trial court entered a judgment determining that Billups's February 2019 injury was an aggravation of his October 2016 injury and that the employer was liable for all benefits to which Billups was entitled under the Act for the February 2019 injury, including medical benefits and temporary-total-disability...