In the recent case of White Tiger Graphics, Inc. v. Clemons, the Alabama Court of Civil Appeals got it right. Injured and disabled workers should not be penalized for their efforts to keep working within their restrictions.
In the last few years, I have faced the same argument several times at trial from attorneys for workers’ compensation carriers. The facts are almost always the same. A worker suffers a serious accident with severe injuries. After getting medical treatment, the worker is left with significant restrictions and limitations. He cannot return to his prior employment due to his injuries (often the employer simply refuses to take him back in his condition). However, he wants to work. He is motivated to find a job within his limitations. Can he actually find gainful employment? He wants to try and is able to do some activities within his limitations. So, he accepts unemployment benefits which are available for those who are willing to work and able to do some activities. He searches for a job. Often, the client will apply for many jobs without success. In the end, however, his limitations and restrictions from the injury prove too great for him to get hired by anyone. He is unsuccessful in finding employment and ends up asking the court to determine his disability for the work-related injury.
Personally, I believe people should be applauded for trying to work despite significant hurdles. People should be encouraged to try and do their best. Ask yourself – who should be rewarded most – the person who exhausts every effort to get better medically and every effort to find good employment before seeking disability benefits or the person who simply makes no effort? Instead of rewarding effort, these attorneys for workers’ compensation carriers have been arguing the opposite.
Attorneys for workers’ compensation carriers frequently argued that the worker could not have his disability fully addressed at trial because he first received unemployment benefits while searching for work. Their argument was that you could not say you were willing and able to work for unemployment benefits and later tell the court you were totally disabled. Their argument ignores both the definition of disability in our workers’ compensation laws and our basic goals as a society of first encouraging work. Thankfully, I have won this argument at trial each time a defense lawyer made it. Now, our appellate court has clearly noted its agreement.
Many people are totally disabled yet willing to work within their substantial medical problems. For workers’ compensation purposes, total disability does not mean you are a totally helpless person unable to function. Rather, in Alabama, it means “that the employee is not able to perform his or her trade and is unable to obtain other reasonably gainful employment.” Instead of being a negative, a period of searching for work with your disability actually helps answer the fundamental question of whether you are, or are not, actually able to find and maintain other reasonably gainful employment. Our Court of Civil Appeals got this one right and wrote a decision that does not further close the door to legitimate claims of disability.by Jeff Blackwell