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Special Interest ter undergoing surgery, settled his an old injury and the compensation claim noted that “a physician’s statement that an workers’ compensation claim on was barred by the statute of limitations.13 activity ‘aggravates’ an injury or condition the basis of an alleged permanent In White v. HB&G Building Products, is not equivalent to a legal determination and total disability.2 Four years Inc., the plaintiff slipped and fell at work, that a particular activity has ‘contributed after the settlement, the plaintiff injuring his knee.14 After conservative independently to the fi nal disability’ for began working for another em- treatment, he was released to work with purposes of the last-injurious-exposure ployer, Jove Engineering, and six no restrictions.15 While waiting to see rule.”25 Because the records evidenced days into his employment, he in- another physician for a second opinion, that the plaintiff had not reached the point jured his lower back again.3 Th e trial the plaintiff switched jobs.16 After the where she could function without requir- court found that Jove had knowledge subsequent physician examined the plain- ing narcotics to reduce her pain level, her of the prior injury, which was deemed tiff and reviewed the diagnostic tests, he complaints stemming from her work at to be disabling and which adversely af- recommended surgery.17 At his deposi- Dillard’s were a recurrence or continuation fected the plaintiff ’s employability.4 Th e tion, the physician was not able to tes- of the initial injury.26 treating physician testifi ed that the sec- tify as to whether the knee problem was AGGRAVATION ond injury was a recurrence and that the from the old injury or was a new injury plaintiff ’s condition was no worse than it or aggravation that occurred from the In North River Insurance Company was following the fi rst injury.5 Based on plaintiff ’s work activities with the sub- v. Purser, the plaintiff injured his lower that evidence, the appellate court upheld sequent employer.18 Th e appellate court back and eventually underwent surgery.27 the trial court’s ruling that the carrier for held that the plaintiff ’s complaints never Almost one year later, he experienced a the fi rst injury would be responsible for resolved before he saw the second doctor, sudden onset of his low back pain while future medical expenses.6 nor was there any evidence that he suf- at work and underwent a second opera- tion.28 Th e question before the court was In Hokes Bluff Welding and Fabrica- fered another acute injury while working whether the second injury was a new or tion v. Cox, the plaintiff injured his lower for the subsequent employer.19 Because aggravated injury that would make the back in 2000 but did not request medical the evidence at the trial court level did subsequent workers’ compensation carrier attention.7 Over a year later, he sought not support the fi nding either that a sec- responsible for the medical bills.29 In its his own, unauthorized pain management ond injury to the plaintiff ’s knee arose out analysis, the appellate court found that treatment.8 Four years later, he injured of his subsequent employment or that he the plaintiff returned to work following his back again while picking up a heavy aggravated his previous injury, the initial the initial injury and “performed satis- object at work.9 Following that injury, employer was found to be responsible for factorily” until the second injury and also the plaintiff began authorized medical the workers’ compensation benefi ts.20 that the second injury was “disabling.”30 treatment and was eventually referred to In Stein Mart, Inc. v. Delashaw, the As such, liability rested with the carrier at a neurosurgeon who compared the two plaintiff injured her foot while moving a the time of the second injury.31 MRI fi lms and determined that they were display at Stein Mart.21 After the initial essentially the same.10 Moreover, the treatment, she continued to complain of In Water Works Board of the City of Bir- plaintiff ’s physical examination had not discomfort in her foot and was diagnosed mingham v. Isom, the plaintiff injured his changed remarkably from the fi rst injury with complex regional pain syndrome and shoulder and neck as a result of a work- to the second.11 Plaintiff then selected degenerative joint disease.22 Th e plaintiff related automobile accident.32 After un- another physician from a panel of four did not return to work at Stein Mart fol- dergoing two surgeries, he was released and underwent a discogram, which test lowing her injury but instead took a simi- from care, returned to work without re- revealed an abnormality at L4-5; how- lar position at Dillard’s a few months lat- strictions and in fact worked for several ever, there were positive fi ndings at that er.23 A treating physician testifi ed that the months without diffi culty until he experi- level on prior diagnostic studies as well.12 plaintiff ’s work activities at Dillard’s, in- enced another injury to his shoulder and Because the second accident caused only cluding walking and standing throughout neck.33 Th e appellate court considered a recurrence of the prior injury, there was the day, would contribute to and aggra- that the initial injury was not disabling insuffi cient evidence that the second acci- vate her foot injury.24 Th e appellate court and did not prevent the plaintiff from dent was a new injury or an aggravation of earning his regular wages.34 Furthermore, continued on page 26 Birmingham Bar Bulletin/ Winter 2012 25


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