Question of whether findings by Unemployment Administrative Hearing Officer barred argument of discharge for violating attendance policy.

Employee of Hyundai was provided handbook which included policies related to attendance and bereavement leave. In 2008, a Hyundai document stated that Hyundai may request documentation to verify relationship of Employee to deceased. Falsification of the requested documentation would result in termination.

Employee developed carpal tunnel syndrome and underwent surgery. He returned to light duty on 10/06/08. Between 10/06/08 and 11/02/08, the Employee missed 9 days of work and took one bereavement day. He then took short-term disability from 10/27/08 to 02/16/09. On 02/20/09, Hyundai sent a request for documentation as it related to work absences and to complete a bereavement-leave form. When Employee returned to work, he was told he needed to provide documentation or he would be terminated. Another letter was sent to Employee in 03/09 requesting documentation. He was discharged on 03/13/09.

Employee sought unemployment compensation benefits. Hyundai did not appear at administrative hearing and Employee was awarded benefits. The hearing officer determined that Employee’s violation of attendance policy was not “misconduct” that would disqualify benefits.

Employee sued Hyundai for workers’ compensation benefits and retaliatory discharge. Hyundai filed a motion for summary judgment on the retaliatory discharge claim and the Court granted the motion.

Employee appealed.

The Court stated that the ruling of the administrative hearing officer was not a determination that the reason for his discharge was not valid under Hyundai’s policies and that Hyundai’s “proffered reasons were not legitimate or pretextual,…” or that Hyundai terminated his “employment for the sold reason that he had filed a workers’ compensation claim.” The Employee did not offer any evidence of a prima facie case of retaliatory discharge.

Judgment affirmed.

Employee worked to ATI. His duties required that he work close to a chemical reactor. On 12/08/11, another employee noticed a foul smell and tried to locate a leak around the reactor system. A third employee found Employee lying face up on the floor 15 to 20 feet away. He died without regaining consciousness. According to the autopsy, the Employee died from “complications from hydrogen sulfide toxicity.” His widow filed a for workers’ compensation benefits action. She provided that the bag used in the mixing process had 50 times the amount of sulfur usually used causing both of the other employees to complain of a headache and one to complain of a burning sensation in his throat. ATI’s expert stated that the Employee’s physical findings were consistent with any number of causes of death other than chemical exposure. The Court determined that Employee’s accidental exposure to hydrogen sulfate gas “caused or contributed to his death.” ATI appealed.

The Appeals Court stated that it was undisputed that the Employee was exposed to hydrogen sulfide and that both ATI’s expert and the medical examiner agreed that the Employee exhibited finding consistent with death due to exposure. The Court further stated that ATI did not present substantial evidence that Employee did not die from exposure.

Affirmed.

Question of whether claim was estopped due to previous payment of unemployment compensation benefits

Employee worked for White Tiger and injured his left knee in 02/07 and right shoulder in 03/08. He filed suit for workers compensation benefits. White Tiger answered the affirmative defense of estoppel. Employee amended complaint stating that he also injured his right shoulder in 03/09. There was no answer to the amended complaint. The Court awarded permanent-total disability benefits for his injuries.

White Tiger appealed.

Employee argued that White Tiger waived the estoppel argument because of its failure to answer the amended complaint. White Tiger argued that it did not waive the defense because it was tried by implied consent of the parties.

For judicial estoppel to apply, a party must how that (1) a party’s later position is “clearly inconsistent” with its earlier position; (2) that the party must have been successful in the prior proceeding and (3) the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.

Ala. Code 1975 § 25-4-77(a)(3) states: a recipient of unemployment compensation benefits must be “physically and mentally able to perform work of a character which he is qualified to perform by past experience or training.” The Employee’s statements that if able, he would try to find a job and that he was willing and able to perform some work is not inconsistent with his claim to be permanently and totally disabled for workers’ compensation action.

Affirmed.

Question of whether defendant was a “special employer” under the Alabama Workers’ Compensation Act.

Fluor Maintenance Services, Inc. (FMS) entered into a “labor broker agreement” with Southern Company Services, Inc. (SCS) to perform construction services at a Mobile plant owned by Alabama Power Company (APC).

Under agreement, FMS was to provide temporary labor, etc. to perform construction services. FMS was also required to obtain workers’ compensation insurance. SCS was to directly supervise work performed and pay FMS a per-person, hourly rate.

Casey Lewis (CL) was hired by FMS and signed “Project Security Rules for Labor Broker Employees” (Rules) which specified FMS as his employer.

CL was injured in 2008 and filed suit against FMS; Tool-Smith Company who owned, repaired and maintained the equipment CL was injured on; and SCS.

SCS was dismissed and CL amended his complaint to include APC. CL settled his WC claim with FMS. APC filed a summary judgment motion arguing that APC was a “special employer” and that CL’s exclusive remedy was for WC benefits. Trial court granted the motion and CL appealed.

Factors to be considered to determine if APC was a “special employer” include:

(a) whether CL made a contract of hire, express or implied with APC;

(b) whether work being done was APC’s;

(c) whether APC had the right to control details of the work.

Court stated that whether or not SCS acted as APC’s agent was not relevant. It was not shown that CL knew that by signing “Rules” he was entering into an employment contract with APC - “it cannot be said that Lewis deliberately consented to an employment relationship with APC.” Court held that there was insufficient evidence as to the existence of an implied contract of employment with APC.

Judgment was reversed.