It’s time for Lawyer Thursdays! Submit your legal questions to cbdavidson@davidsonlawoffice.com any time.  Please put “Lawyer Thursdays” in the subject line as I also receive many emails through my website at www. Davidsonlawoffice.com.  You may also call Davidson Law Firm at 685-4822 or come by the office located in Old Towne Helena.  This week I will be addressing a very good question regarding the carrying of pistols in Alabama.

Question:  Can you please explain my rights regarding the carrying of a pistol in the State of Alabama?  Am I allowed to “open carry” a pistol in Alabama?

Answer:   I am a very strong advocate of our Constitutional rights including our rights to keep and bear arms under the 2^nd Amendment.  However, there are restrictions to that right that are in the general interests of public safety and welfare.  I think most would agree that we don’t need just anyone strolling around the streets with submachine guns, juggling grenades or towing artillery pieces behind their SUV.  Alabama does have a concealed pistol law requiring you to obtain from the Sheriff’s Department an annual permit to carry a pistol concealed on your person or in your vehicle.  To obtain a permit you must fill out a form, have a valid reason to carry a concealed pistol (i.e. self defense) and pay the fee.  However, the right to carry a pistol/firearm even with a concealed pistol permit isn’t applicable to everyone who wants to pack heat.

Private citizens may not possess a pistol (or firearm) at all …

1.)  in, at or within 1,000 feet of a demonstration at a public place.

2.)  if you have been convicted of a violent crime.

3.)  if you are an addict or drunkard.

4.) on public school property with the intent to do harm.

The question of the legality of “open carry” or “open holster” is always the subject of debate and confusion even among law enforcement.  You may carry an unconcealed pistol on your person so long as you are,

1.) on your own property, or

2.) on public property, and

3.) on foot, and

4.) not intentionally or recklessly acting in a threatening manner.

You can legally take a stroll down the sidewalks of Helena like Wyatt Earp with your hand cannon strapped to your side.  You are far better off obtaining a concealed pistol permit and covering that hog leg with your jacket.  The second you step onto private property you are subject to arrest for carrying a pistol and your permit only applies to a concealed pistol.  In addition, the aggravation of dealing with the inevitable alarmed citizen will not be worth the convenience of carrying “open holster”.

Send your legal questions to Brian Davidson at cbdavidson@davidsonlawoffice.com

http://www.ehow.com/how_7456286_calculate-workman_s-comp-benefits.html

Welcome back to Lawyer Thursdays!  Last week went over so well, Hewy is going to allow me to continue to answer your legal questions each week! You can submit your legal question to cbdavidson@davidsonlawoffice.com any time.  You don’t have to have specific problem or issue.  I will be happy to answer those legal questions that you may have been wondering about for years!  Please put “Lawyer Thursdays” in the subject line as I also receive many emails through my website at www. Davidsonlawoffice.com.  You may also call Davidson Law Firm at 685-4822 or come by the office located in Old Towne Helena.

Question: My next-door neighbor is a hoarder.  Does Helena have any restrictions for such activity?

Answer: That depends on what your neighbor is hoarding and where.  Helena does have an ordinance restricting junk, trash, and debris from your yard.  If the hoarding activity is inside the residence then the issue becomes more difficult and diverse.  Helena cannot do anything about what’s inside your residence (outside of illegal activity) unless it either becomes a public nuisance or a fire hazard.  For example, 28 dogs barking all hours of the day and night would be a public nuisance while hoarding of stacks of newspaper and magazines would be a fire hazard.  If the hoarding activity is creating a health hazard then your recourse is through the Shelby County Health Department.

Question:  Why is it that every time I want to buy something they make me sign a paper that says I can’t take them to court but instead I have to go a mediator?  Is this just a State of Alabama thing or does this occur in other states?

Answer:   I could write a whole book on this issue.  What you are referring to are arbitration agreements that exist nationwide and really started to encroach into our daily lives in the mid to late 1980’s.  Arbitration is legally binding mediation where the parties submit their arguments and evidence to a mutually agreed upon or Court appointed Arbitrator (who you have to pay in whole or in part) who will then decide the case.  There are no rights to appeal and there are no requirements that the Arbitrator even has to apply the law.

The Federal Arbitration Act was first passed by Congress in 1925 to encourage and allow businesses to agree to resolve disputes without the Court system.  However, as we all know, arbitration has now creeped into every aspect of consumer transactions and now employment agreements as well.  In essence, in exchange for the privilege of purchasing that car, house, motorcycle, boat, mobile home, mouse trap, or pack of gum you are also agreeing to the waiver of your rights under the Seventh Amendment of the United States Constitution which states,

“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

The legislature of Alabama specifically prohibits arbitration. Ala. Code § 8-1-41(3) (1975).  However, the Federal Arbitration Act preempts our State law in almost every circumstance thanks to the U.S. Supreme Court’s decision expanding the scope of the Commerce Clause in Allied-Bruce Terminix Companies v. Dobson, 513 U.S. 265 (1995).  Under Dobson, there doesn’t seem to be any activity or transaction that does not affect interstate commerce bringing in the preemptive Federal laws.

Send your legal questions to Brian Davidson at cbdavidson@davidsonlawoffice.com

Question: My neighbor’s across the street have visitors who park on the sidewalk next to my house.  They drive across my yard at the edge of the street where the sidewalk ends leaving ruts.  What can I do?

Answer:  Parking on the street is a violation of Helena’s Municipal Ordinances and is a typical ordinance violation in most municipalities.  A simple call to the Helena Police Department (663-6499 – do not call 911 for this type of problem) will get the offender a citation and a date with us at Municipal Court.  I would have to check our ordinances to be sure but parking on and/or blocking a sidewalk is most likely not legal either.  There are several other legal options at your disposal as well.  Damaging your property is actionable both civilly and criminally.  The civil action would be a Small Claims Court case for the cost to repair the damage.  Criminal actions would include trespass and destruction of property.  You should write down a description of the vehicle(s) and the tag number(s).  My suggestion is that you place a large, decorative stone, planter or tree at the corner of your property so that they cannot drive across the edge of your lawn.

Question:  Are online, do-it-yourself wills a good thing?  Will they hold up in Court?

Answer:  No, I do not believe that online, do-it-yourself wills or any other do-it-yourself legal documents are good ideas.  They might hold up in Court.  Then again, it is far better sit down with a local, knowledgeable attorney to draft that document and be certain that it meets all of the legal requirements and all of your legal needs? The online legal documents that I have seen (as well as the $200.00 divorces) have been in the context of litigation to either invalidate the document or to fix the document.  That $70.00 will you did suddenly becomes a $10,000.00 will contest for your heirs because the legal requirements were not met or it was not executed properly.  That $200.00 uncontested divorce now becomes a $10,000.00 fight because the original decree didn’t adequately address all of the issues that will eventually arise.  It is far better to pay the $300.00 for a professionally drafted will or $750.00 (at the Davidson Law Firm) for that uncontested divorce than to pay the price in the end.

Question: I would like to know how to get our Helena subdivision that is located in Jefferson County annexed into Shelby County.

Answer: Counties cannot annex land of the county next door as that property already falls within the legal domain of another county.  Similarly, Helena could not annex the rest of Port South or Apache Ridge subdivisions because they are already part of Alabaster.  The Alabama Legislature has to vote to approve the very expensive redrawing of county lines and it is subject to a vote of the entire State.

Fuhrmeister seeks another term as probate judge

Published 4:27pm Thursday, January 12, 2012

FROM STAFF REPORTS

Shelby County’s current probate judge is looking for another go-round.

Jim Fuhrmeister announced Jan. 11 he is seeking the Republican nomination for probate judge in Shelby County. The primary election is March 13.

Jim Fuhrmeister

“I am proud of my accomplishments in the time I have served Shelby County, but there is much more to do,” Fuhrmeister said in a press release.

Fuhrmeister also serves as a special circuit judge, and he presides over the county’s mental health court.

He was honored with the National Alliance on Mental Illness 2011 Criminal Justice Award of the Year for his work with the mental health court.

Fuhrmeister also works with the Alabama Law Institute, serving on both the Real Estate Committee and the Collaborative Law Committee.

Probate judges across the state selected Fuhrmeister to serve on the Alabama Electronic Recording Commission, which drafts and implements standards and business practices to electronically record documents in Alabama’s probate offices.

Fuhrmeister, who is an Eagle Scout, serves on the boards of various Shelby County nonprofit organizations, such as Leadership Shelby County, Shelby Volunteers In Service, Harrison Regional Library and the J. Craig and Paige T. Smith Scholarship Foundation Inc.

He is also a member of the Shelby County Bar Association, the Alabama State Bar, the National College of Probate Judges and the Alabama Probate Judges Association.

http://helenacitynews.blogspot.com/2011/09/local-attorney-brian-davidson-honored.html

 In a staggering blow to the hard working and trusting citizens of Alabama, the Alabama Pre-paid Affordable College Tuition Plan (PACT) has announced that it is likely to be unable to fund tuition for its beneficiaries who purchased a “guaranteed” plan.  The Trustees of the PACT fund, led by State Treasurer Kay Ivey, has lost more than $350 million and is now is attempting to dodge State responsibility for paying tuition for the thousands of families that have bought into the PACT program.  We believe the PACT program is an agency and instrumentality of the State of Alabama and is responsible for its contractual obligation under the PACT contract. We have consulted a finance expert who agrees that the PACT contracts failed to identify any market risk or that the PACT contract was an investment in the stock market as required by law.  PACT contract owners have significant legal rights they may wish to protect as soon as possible.

The following is the Alabama Court of Civil Appeals opinion regarding Jim Phillips’ workers’ compensation case for occupational heart disease arising from his employment as a firefighter for the City of Hoover.  Jim Phillips, a veteran firefighter, suffered from a heart attack that left him totally disabled.  I tried this case in Shelby County, Alabama and was able to both clarify and establish the law regarding occupational heart disease for  firefighters.

City of Hoover v. James Ernest Phillips

Rel: May 07, 2004

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2003-2004

2021023

Appeal from Shelby Circuit Court
(CV-01-733)

PITTMAN, Judge.

James Ernest Phillips (“the employee”), a firefighter formerly employed by the City of Hoover (“the City”), sued the City in the Shelby Circuit Court (fn1) in July 2001 seeking benefits under the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala. Code 1975 (“the Act”); the employee claimed to have suffered an injury to his cardiovascular system arising out of and in the course of his employment or, in the alternative, claimed to have suffered from cardiovascular disease that was occupational in nature and therefore compensable under the Act. The City answered the complaint, denying its pertinent allegations and asserting that the employee had not given the City notice of his injury. After an ore tenus proceeding, the trial court entered a judgment in favor of the employee, stating findings of fact and conclusions of law and determining both that the employee was permanently and totally disabled as a result of a work-related injury and that the employee suffered from occupational heart disease. The City’s postjudgment motion for a new trial was denied, and the City appeals.

The City raises three issues on appeal: (1) whether the City had proper notice of the employee’s claim; (2) whether causation by the employee’s employment was demonstrated; and (3) whether the employee suffered from an occupational disease. This court will not reverse a judgment based on the factual findings of the trial court in a workers’ compensation case if those findings are supported by “substantial evidence.” Ala. Code 1975, § 25-5-81(e)(2). “Substantial evidence” is “‘evidence of such weight and quality that fair- minded persons in the exercise of im-

partial judgment can reasonably infer the existence of the fact sought to be proved.’” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala. 1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989)). Pursuant to that principle of review, “‘the trial court’s findings on disputed evidence in a workers’ compensation case are conclusive,’” and this court must not “‘weigh the evidence before the trial court.’” Ex parte Golden Poultry Co., 772 So.2d 1175, 1176 (Ala. 2000) (quoting Ex parte Ellenburg, 627 So.2d 398, 399 (Ala. 1993), and Edwards v. Jesse Stutts, Inc., 655 So.2d 1012, 1014 (Ala. Civ. App. 1995)); see also Ex parte Holton, [Ms. 1012143, June 13, 2003] ___ So.2d ___, ___ (Ala. 2003). Moreover, we must “consider the evidence in a light most favorable to the findings of the trial court.” Ex parte Staggs, 825 So.2d 820, 822 n.1 (Ala. 2001).

The record reveals the following facts. The employee worked for the City for 23 years as a firefighter with a paramedic certification until June 2000. The employee was diagnosed with heart disease in late 1999 after undergoing an arteriogram; after the employee underwent surgery to have a stent placed in a coronary artery, his treating physician, Dr. Larry E. Dye, returned the employee to work with no restrictions, although he was prescribed nitroglycerin. The employee was medically recertified by the City’s fire-department physician, and he resumed his normal work routine thereafter.

At approximately 8:00 a.m. on June 2, 2000, the employee reported to work pursuant to a “twenty-four on, forty-eight off” schedule (i.e., the employee remained at a fire station for a 24-hour work shift, including on-duty sleep periods, that was to be followed by 48 hours off work). The employee performed paperwork and undertook continuing-education lessons during the first hours of his shift, and then he went to sleep.

At approximately 10:00 p.m. that evening, a fire-alarm call was received at the employee’s fire station. The employee testified that when the fire station receives such a call when he is asleep, he must awaken, dress in protective gear, and board a fire engine with his crew within 30 seconds. On this occasion, after arriving at the scene of the fire, the employee reported to a division chief at the bottom of a slight incline, and then began walking uphill to rejoin his company; however, as the employee walked up the hill, he began to experience burning chest pains. The employee completed his climb and informed his crew, as they reboarded the fire engine, that he was experiencing chest pains. Although he was uncertain why he was experiencing chest pains, the employee apparently initially believed that those pains could have been caused by particularly spicy chili that he had consumed in the firehouse that evening because his symptoms did not resemble the pain he had previously experienced in late 1999. Upon returning to the station, the employee submitted to a blood-pressure examination; ingested a nitroglycerin tablet, a dose of aspirin, and an antacid; and returned to bed after his symptoms subsided.

At approximately 2:00 a.m. on the morning of June 3, 2000, the fire station received another emergency call arising from a fall suffered by an elderly resident of an extended-care facility. The employee’s fire company responded to the call and transported the resident for medical treatment. The employee reported similar chest-pain symptoms after awakening and boarding the fire engine on this occasion; upon his return to the fire station, he repeated his medications, which reduced his chest pains considerably, and he filled

out a written report of his fire crew’s response to the emergency call before again falling asleep.

The employee completed his work shift at 8:00 a.m. on June 3, 2000, at which time he reportedly was continuing to experience low-grade pain symptoms. After leaving work, the employee went to the home of one of his friends to help construct wooden outdoor steps along an incline. However, while the employee was at his friend’s home, his chest-pain symptoms again set in. When nitroglycerin did not alleviate the employee’s symptoms, an emergency call was placed on the employee’s behalf; the responding personnel connected the employee to a heart monitor that revealed that the employee was actually undergoing a myocardial infarction (i.e., a heart attack). The employee was then transported to a local hospital emergency room for immediate heart-catheterization treatment; although the employee’s occluded coronary artery was opened and his heart was stabilized, he contracted a severe infection caused by staphylococcus bacteria, requiring his hospitalization for over three weeks.

While the employee was being treated in the hospital emergency room, he was visited by the City’s fire chief, Tom Bradley, and by a co-employee, Rusty Lowe. Although he was under medication at the time of that visit, the employee testified that he remembered “very clearly” that during their hospital visit he had said to Fire Chief Bradley that he had had no doubt that the heart attack had started while he was ascending the incline during his first fire call on June 2, 2000; he added that he and Fire Chief Bradley had discussed a fire-department training film that had involved a firefighter succumbing to a heart attack while administering aid to a patient during an emergency call. In response, according to the employee, Fire Chief Bradley directed the employee not to worry; he also indicated to the employee that “everything would be handled” with respect to workers’ compensation. The employee also testified that first notices of firefighters’ injuries to the City would typically be completed by a firefighter’s supervisor when the injured firefighter was unable to return to work after an injury to complete a notice form, and there was evidence that Fire Chief Bradley had completed injury-notice forms on behalf of the employee in the past.

Upon recovering from his infection, the employee underwent successful cardiac-bypass surgery performed by Dr. John Richardson, Jr.; however, the employee was ultimately instructed by Dr. Dye that he should not return to work for the City as a firefighter. Although the employee apparently believed he was receiving workers’ compensation benefits during his extended convalescence, he was informed in November 2000 that he had actually been receiving payment for his accumulated leave time and that other firefighters had donated such time to him so that he could qualify for retirement. In December 2000, the employee signed a “first notice of injury” form that one of his co-employees had prepared with respect to his heart attack; he also sought disability benefits at that time and applied for a service retirement, which was granted. The employee has been determined by the Social Security Administration to be totally disabled, and no issue has been raised by the City concerning the permanency or the totality of the employee’s disability.

As we have noted, the employee’s workers’ compensation claim was not based solely upon the proposition that his heart attack was a discrete work-related injury compensable pursuant to Article 3 of the Act; rather, the employee alternatively contended that his heart disease was

an “occupational disease” compensable under the provisions of Article 4 of the Act, and the trial court also found in favor of the employee on that alternative contention. If a workers’ compensation claimant asserts entitlement to permanent-total-disability benefits under both Article 3 and Article 4 of the Act, and the trial court subsequently awards permanent-total-disability benefits (as in this case), this court will affirm the trial court’s judgment if the evidence supports an award under either article, even if an award would not be appropriate under the other article. See Bidermann Indus. Corp. v. Peterson, 655 So.2d 997, 999 (Ala. Civ. App. 1994) (“Our conclusion that [the employee] did not suffer from an occupational disease, however, is not dispositive of this appeal because we find that recovery was proper under the ‘accident’ provisions of the [A]ct.”).

Like we did in Bidermann, we first address the issue of whether compensation was proper based upon Article 4. The City contends that the trial court erred in determining that the employee’s heart disease giving rise to his heart attack was an occupational disease under Article 4. It cites § 25-5-81(c), Ala. Code 1975, which generally provides for a “clear and convincing evidence” standard of proof with respect to cumulative-stress injuries, as authority for its argument that the employee did not demonstrate causation by “clear and convincing evidence.” However, this court has previously held that the “clear and convincing evidence” standard does not apply to occupational-disease claims under Article 4 because Article 4 treats death or disability caused by an occupational diseases as an “injury by accident.” Drummond Co. v. Moore, 730 So.2d 222, 224 (Ala. Civ. App. 1998); see also 1 Terry A. Moore, Alabama Workers Compensation § 9:18.50 (Supp. 2003) (agreeing that “clear and convincing evidence” standard set forth in § 25-5-81(c) does not apply to occupational-disease claims). The employee’s contention that the “preponderance of the evidence” standard of proof and the “substantial evidence” standard of appellate review apply to his occupational-disease claims is, therefore, correct. See Ala. Code 1975, §§ 25-5-81(c) and 25-5-81(e)(2).

Under Article 4 of the Act, for a condition to be classified as an “occupational disease,” that condition or ailment “must be ‘due to hazards in excess of those ordinarily incident to employment in general and [be] peculiar to the occupation in which the employee is engaged.’” Avondale Mills, Inc. v. Weldon, 680 So.2d 364, 366 (Ala. Civ. App. 1996) (quoting Ala. Code 1975, § 25-5-110(1)). Also, to prove entitlement to compensation, a claimant “must prove causation or aggravation of an existing condition.” Avondale Mills, 680 So.2d at 366 (emphasis added). Stated another way, under Alabama law, “[a]n occupational disease is not compensable if it is not caused or aggravated by the nature of the employment.” Id. We further note that recent authority indicates that cardiovascular conditions ultimately giving rise to a heart attack are more properly treated, as a legal matter, as “occupational diseases” under Article 4 rather than as nonaccidental injuries under Article 3. See Safeco Ins. Cos. v. Blackmon, 851 So.2d 532, 536-37 (Ala. Civ. App. 2002).

Was the employee’s heart disease an “occupational disease” that was, at least, aggravated by his employment? There was substantial evidence that the employee’s particular work as a firefighter exposed him to more sudden, stressful conditions than those ordinarily incident to employment in general and that those conditions contributed to the development of his heart disease. According to the employee, the symptoms of his heart at-

tack first manifested themselves on the evening of June 2 and the early morning of June 3, 2000, while he was working a 24-hour shift. On two separate occasions during that shift, he was awakened and was required to dress and equip himself in full fire gear in less than a minute in order to board a fire truck that was responding to an emergency call. Dr. Dye described the chest pains experienced by the employee during that shift as the “beginning symptoms” of a heart attack; Dr. Dye specifically identified immediate abrupt increases in heart rate and blood pressure arising from responding to fire alarms, such as those to which the employee testified, as stressors on the heart and the vascular system.

Although Dr. Dye testified that heart disease is generally caused by a buildup of arterial plaque, a process that begins during childhood, he added that “it progresses at different rates in different people according to their risk factors.” Dr. Dye opined that the employee’s work as a firefighter was a “stressful” and “high risk” occupation and that the employee’s occupation was a “significant part” of his risk of developing heart disease and suffering a heart attack; he agreed that the inhalation of fumes and smoke would also be a risk factor for developing heart disease. Dr. Dye based his opinions, in part, on his medical observations of other firefighters.

In addition, Dr. Richardson agreed that a person working as a firefighter, where sudden, intense energy demands are required, is at a higher risk of having a heart attack than people employed generally. Fire Chief Bradley testified to the effect that he considered the employee’s heart condition to be related to his employment as a firefighter; Bradley identified two other individuals who had served under his command who had suffered heart attacks while on duty, and the employee testified that firefighters suffering heart attacks had been “a fairly common event” during his 23-year tenure of employment. Finally, as the trial court judicially noticed, an Alabama statute governing firefighters’ compensation specifically identifies conditions or impairments of health arising from “heart disease” as being “occupational diseases” of firefighters. (fn2) Ala. Code 1975, § 11-43-144(a)(3); see also Chrysler Corp. v. Henley, 400 So.2d 412, 417 (Ala. Civ. App. 1981) (Wright, P.J., concurring specially) (citing § 11-43-144 for the proposition that “firemen are regularly exposed as a general group to the conditions contributing to heart disease”). We cannot conclude that the trial court erred in determining that the employee’s heart disease was an occupational disease that was aggravated by his employment as a firefighter such that compensation under Article 4 of the Act was proper.

Although our conclusion with respect to compensability under Article 4 is arguably dispositive of the appeal under Bidermann, we will, out of an abundance of caution, turn to the employee’s alternative theory – that his heart attack was a compensable nonaccidental injury. Noting that the employee’s first written notice of injury was not prepared by fire-department personnel and signed by the employee until early December 2000, the City contends that the employee did not afford adequate notice under the Act with respect to his nonaccidental-injury theory. The City relies on that portion of the Act, Ala. Code 1975, § 25-5-78, providing that

an injured employee “shall give or cause to be given to the employer written notice of the accident” made the basis of the employee’s claim for workers’ compensation benefits; (fn3) that section also provides that “no compensation shall be payable unless written notice is given within 90 days after the occurrence of the accident.” We summarized many of the pertinent principles of law concerning effective notice under the Act in Davis v. Paragon Builders, 652 So.2d 762 (Ala. Civ. App. 1994):

“The purpose of written notice is to advise the employer that the employee received a specified injury, in the course of his employment, at a specified time, and at a specified place, so that the employer may verify the injury by its own investigation. Written notice is not required where it is shown that the employer had actual notice of the injury. Oral notice is sufficient to give the employer actual notice. Like written notice, oral notice imparts to the employer the opportunity to investigate and to protect itself against simulated and exaggerated claims. Even with oral notification, the employer must be notified that the employee was injured while in the scope of his employment. The fact that an employer is aware that the employee suffers from a malady or has medical problems is not, by itself, sufficient to charge the employer with actual notice. ‘If, however, the employer has some information connecting work activity with an injury, it may be put on reasonable notice to investigate further.’ Knowledge on the part of a supervisory or representative agent of the employer that a work-related injury has occurred will generally be imputed to the employer. The employee has the burden of proving that the employer had notice or knowledge of the injury.”

Davis, 652 So.2d at 764 (citations omitted).

As we noted in Davis, an employer may properly be found to be on reasonable notice when the employer, or a supervisory agent of the employer, becomes aware of information connecting an employee’s work activity with an injury to the employee. See also Ex parte Slimp, 660 So.2d 994 (Ala. 1995) (reversing this court’s judgment of reversal based upon lack of notice where evidence appeared in record that employee notified his supervisor that he had hurt his back on the day he was injured). The trial court’s judgment properly concluded that the employee’s having informed Fire Chief Bradley, just after the employee’s hospitalization, of the original onset of his symptoms in the line and scope of his employment during an emergency fire call sufficiently conveyed “reasonable notice” of a connection between the employee’s work activity and his subsequent injury so as to defeat the City’s contention that notice was not given. Davis, 652 So.2d at 764.

To the extent that the trial court awarded workers’ compensation benefits based upon a determination that the employee’s heart attack was a nonaccidental injury under Article 3 of the Act, we conclude that the trial court’s judgment is supported by substantial evidence. The City has conceded in its initial brief to this court that legal causation of the heart attack by the employee’s work was established; as to the employee’s nonaccidental-injury theory, the City addressed only the issue of medical causation in its initial appellate brief. (fn4) As to medical causation,

much of the evidence we have detailed above provides support for the proposition that the employee’s heart attack is causally related to the cardiovascular stress he was subjected to in responding to the two emergency calls on June 2 and 3, 2000. While Dr. Richardson opined that the employee’s heart attack did not occur until the employee had left his employment for the day on June 3, Dr. Dye testified that the employee’s heart attack actually began on June 2 during his work shift and that the precipitating events would have been the fire alarms and the stress on the employee’s body. Substantial evidence indicates that the employee’s work was in fact a “contributing cause” of his heart attack so as to render the City liable to pay workers’ compensation benefits on a nonaccidental-injury theory. See Ex parte Trinity Indus., 680 So.2d at 270.

Based upon the foregoing authorities, and viewing the evidence in a light most favorable to the findings of the trial court, Ex parte Staggs, 825 So.2d at 822 n.1, we conclude that the trial court’s judgment is due to be affirmed.

AFFIRMED.

Yates, P.J., and Crawley, J., concur.

Thompson, J., concurs in the result, without writing.

Murdock, J., concurs in the result, with writing.

MURDOCK, Judge, concurring in the result.

The main opinion concludes its analysis by holding that the trial court correctly awarded benefits under Article 3 of the Workers’ Compensation Act. In this regard, the main opinion relies upon the so-called “nonaccidental injury theory” articulated in Ex parte Trinity Industries, Inc., 680 So.2d 262 (Ala. 1996). I agree with the result reached by the main opinion because I agree that, under our Supreme Court’s holding in Ex parte Trinity Industries, the trial court’s holding in this regard is due to be affirmed.

I do not agree with the alternative ground for affirming the trial court set out in the main opinion, however. Specifically, I do not agree that we could affirm the trial court’s judgment based on Article 4 of the Workers’ Compensation Act.

Article 4 of the Workers’ Compensation Act addresses the issue of compensation for employee’s suffering from occupational diseases. Section 25-5-110(1) of Article 4 defines an occupational disease in regard to the causal relationship that must exist between the employee’s working conditions and the disease itself:

“A disease arising out of and in the course of employment, including occupational pneumoconiosis and occupational exposure to radiation as defined in subdivisions (2) and (3), respectively, of this section, which is due to hazards in excess of those ordinarily incident to employment in general and is peculiar to the occupation in which the employee is engaged but without regard to negligence or fault, if any, of the employer. A disease, including, but not limited to, loss of hearing due to noise, shall be deemed an occupational disease only if caused by a hazard recognized as peculiar to a particular trade, process, occupation, or employment as a direct result of exposure, over a period of time, to the normal working conditions of the trade, process, occupation, or employment.”

The City argues that the record does not support a finding that the employee suffers from an occupational disease under this causation-oriented definition. I agree.

The occupational disease at issue is coronary artery disease. The record indicates

that myocardial infarctions, or heart attacks, occur as a result of that disease. They are not the occupational disease itself. See Safeco Ins. Cos. v. Blackmon, 851 So.2d 532 (Ala. Civ. App. 2002). Insofar as compensability under Article 4 is concerned, therefore, the main opinion’s focus on whether the stress of events of June 2 and 3, 2000, might have triggered the employee’s heart attack is misplaced. Instead, the question is whether the record supports the trial court’s finding that the employee’s job as a firefighter caused him to develop coronary artery disease. I find that it does not.

___________________
Footnotes:

1. Although the City’s seat of government is located in Jefferson County, the City’s territorial limits include land located within Shelby County, and a workers’ compensation action may therefore be brought against the City in either venue. See Ala. Code 1975, §§ 6-3-11 and 25-5-88, and Ex parte City of Haleyville, 827 So.2d 778 (Ala. 2002).

2. Citing Byrd v. State ex rel. Colquett, 212 Ala. 266, 102 So. 223 (1924), the City contends in its reply brief that the trial court could not take judicial notice in the absence of a request on the part of counsel that it do so; however, Rule 201(c), Ala. R. Evid., provides that a court “may take judicial notice whether requested or not.”

3. We note that pursuant to § 25-5-123, Ala. Code 1975, the provisions of § 25-5-78 do not apply to occupational-disease claims under Article 4 of the Act.

4. Notably, the City did not reply to the employee’s arguments regarding medical causation in its reply brief.

By C. Brian Davidson

            The calculation of workers’ compensation benefits has confused, baffled, and eluded attorneys since Alabama adopted the Workers’ Compensation Act in 1909.  The confusion is created by the various types of workers’ compensation benefits allowed by the statute and the plethora of exceptions and combinations of benefits allowed by the statutes and interpretations thereof by our appellate courts.  Those of us who primarily practice workers’ compensation litigation often do not calculate the injured employee’s benefit’s correctly which can cause the employee to be underpaid or the employer to pay too much in benefits.  Therefore, it is extremely important for the practitioner to have at least a rudimentary understanding of the calculation of benefits to properly represent our clients.

            The first step in calculating workers’ compensation benefits is to determine the injured employee’s average weekly earnings.  The employee’s average weekly earnings is the employee’s average gross earnings for the fifty-two weeks preceding the date of injury.  If the employee has not been employed by the employer paying compensation for fifty-two weeks then the employee’s average weekly earnings is calculated according to the average weekly earnings of a similarly situated employee who has been employed for fifty-two weeks.  The employee’s average weekly earnings is often confused with the term average weekly wage which is the average gross wage of an employee in the State of Alabama and is determined annually by the Department of Industrial Relations. 

            The next term the practitioner should be familiar with is “weekly benefit” which is the maximum amount of workers’ compensation benefits the employee is entitled to per week.  The employee is entitled to 66 2/3 percent of his average weekly earnings per week subject to the maximum and minimum caps established by Ala. Code § 25-5-68 (1975).

            There are five types of workers’ compensation benefits allowed by the Alabama Workers’ Compensation Act pursuant to Ala. Code § 25-5-57 (1975): (1) Temporary Total Disability Benefits  (2) Temporary Partial Disability Benefits  (3) Permanent Partial Disability Benefits  (4) Permanent Total Disability Benefits and  (5) Death Benefits.  Each of these five types of benefits are calculated differently according to the statutes.  This article will address and explain how to calculate benefits for each of these types of disability.

Temporary Total Disability Benefits

            The calculations for Temporary Total Disability Benefits are set forth in Ala. Code § 25-5-57(a)(1).  Temporary Total Disability benefits are paid to an employee who is injured and is unable to return to work for a period of time.  Temporary Total Disability benefits are the simplest workers’ compensation benefits to calculate.  The employee is entitled to 66 2/3 of his average weekly earnings subject to the aforementioned maximum and minimum limitations for the period of time which the employee is unable to return to work.

Temporary Partial Disability Benefits

            The calculations for Temporary Partial Disability are set forth in Ala. Code § 25-5-57(a)(2).  Temporary Partial Disability benefits are to be paid when the injured employee is able to return to work but is not able to earn the same amount of money.  This commonly occurs when the employee must miss time for doctor’s appointments, according to doctor’s orders, physical therapy, must leave due to pain, or is placed on “light” duty at a lower wage.  The employee’s benefits are paid according to what the employee’s average weekly earnings at the time of injury and what the employee is able to earn after the injury.  Therefore, the practitioner must determine what the employee is able to earn in his/her partially disabled condition.  This can be accomplished by the employee’s earnings since the date of injury or by expert medical and/or vocational testimony.  The employee is entitled to 66 2/3 percent of the difference between his/her average weekly earnings at the time of injury and his/her average weekly earnings or earning ability since the date of injury.  The employee’s benefits are subject to the aforementioned maximum and minimum limitations and are payable for a total of 300 weeks.

Permanent Partial Disability Benefits

            Once a temporary injury is deemed permanent by the employee’s physicians, commonly referred to as maximum medical improvement, temporary benefits cease and the employee may be entitled to permanent workers’ compensation benefits.  Permanent Partial Disability  benefits are the most common permanent benefits paid and the most difficult to calculate pursuant to Ala. Code § 25-5-57(a)(3).  Permanent Partial Disability is paid when the injured employee has sustained a permanent injury but is able to sustain gainful employment.  The practitioner must first determine whether the injured employee has sustained a scheduled or a non-scheduled permanent injury.  Scheduled injuries are injuries to specific parts of the body which have each been assigned a total number of weeks for which workers’ compensation benefits are payable.  The schedule is set forth at Ala. Code §25-5-57(a)(3)a.  The amount of compensation for a scheduled injury is calculated according to the extent(percentage) of the disability.  The extent of disability (or permanent impairment rating) is most often proved by utilizing the treating physician’s permanent impairment rating or the results of a functional capacity evaluation but can also be proved by the testimony of the injured employee.  The practitioner must remember that the judge is not bound by expert medical testimony.  The judge may take into consideration all of the evidence and testimony to adjudicate the employee’s extent of disability.  Once the extent of disability is determined, the benefits are calculated by multiplying the percentage of disability by the number of weeks allowed for the scheduled injury to arrive at the number of weeks payable.  The number of weeks payable is then multiplied by the employee’s weekly benefit or $220.00 whichever is less. 

            Non-scheduled injuries are those permanent injuries not set forth in Ala. Code § 25-5-57(a)(3)a.  The most common non-scheduled injuries are back injuries and those injuries which result in a significant disability to the body as a whole.  Non-scheduled injuries are calculated according to the extent that the injury has reduced the injured employee’s ability to earn income pursuant to Ala. Code § 25-5-57(a)(3)(g).  The extent of disability is most often proved by expert vocational and medical testimony, functional capacity evaluations, the testimony of the injured employee, and the difference between the earnings prior and subsequent to the employee’s injury.  However, if the injured employee returns to work at the same or greater amount of remuneration, no vocational evidence is admissible to prove the extent of disability but instead the court must rely solely upon the extent of physical disability.  If the employee received any weekly Temporary Total Disability or Temporary Partial Disability benefits, the number of weeks paid are subtracted from the total number of Permanent Partial Disability benefits available.  The amount of benefits payable for a non-scheduled Permanent Partial Disability injury is limited by Ala. Code § 25-5-68 to a maximum of 300 weeks and $220.00 per week.  Once the extent of disability is determined, the benefits are calculated by multiplying the percentage of disability by the maximum number of weeks allowed (300) to arrive at the number of weeks payable.  The number of weeks payable is then multiplied by the employee’s weekly benefit or $220.00 whichever is less.

Permanent Total Disability Benefits

            The employee is entitled to Permanent Total Disability benefits if the employee is unable to return to suitable gainful employment, meaning employment of similar kind and of similar remuneration, due to his/her on-the-job injury pursuant to Ala. Code § 25-5-57(a)(4).  Permanent Total Disability benefits are calculated the same way as Temporary Total Disability benefits with the exception that Permanent Total Disability benefits are paid for the remainder of the employee’s life or until such time as the employee returns or is able to return to suitable gainful employment and is determined by the Court to not be Permanently Totally Disabled.  There are no deductions made from Permanent Total Disability benefits for Temporary Total Disability or Temporary Partial Disability benefits which have been paid.

Death Benefits

            The last category of workers’ compensation benefits are Death benefits which are set forth in Ala. Code § 25-5-57(a)(5) and Ala. Code § 25-5-60 through Ala. Code § 25-5-67.  The employer must first pay the expenses of the deceased employee’s burial up to $3,000.  Workers’ compensation Death benefits are calculated according to the number of the deceased employee’s surviving dependents at the time of his or her death.  If the deceased employee has no surviving dependents, the employer must make a lump sum payment of $7,500 to the estate of the deceased employee.  If the deceased employee has one total dependent that person is entitled to 50% of the employee’s average weekly earnings for a maximum of 500 weeks subject to the minimum and maximum limitations of Ala. Code § 25-5-68.  If the deceased employee has more than one total dependent at the time of death, those dependents are entitled to 66 2/3 percent of the employee’s average weekly earnings for a maximum of 500 weeks subject to the minimum and maximum limitations of Ala. Code § 25-5-68.  A partial dependent is also entitled to Death benefits to the extent of the employee’s contribution to the partial dependent’s total income.  The employer also receives a credit for the number of weeks of benefits paid to the employee prior to his/her death.

Present Value

            A common problem practitioners have when dealing with workers’ compensation calculations is that of determining the present value of the employee’s future benefits.  The present value of the employee’s future benefits (Permanent Partial, Permanent Total, and Death) is needed to determine the employee’s attorney’s fees and to calculate the value of a lump sum settlement.  The calculation of the present value of Permanent Total Disability benefits is more complicated than those for Permanent Partial Disability and Death benefits.  The first step in calculating the present value of Permanent Total Disability benefits is to determine the employee’s life expectancy by utilizing the Standard Ordinary Mortality Table which is available from the Alabama Department of Industrial Relations.  The Mortality table is listed in terms of years so a calculation to transfer the figure to weeks will be necessary.  This is done by multiplying the number of years listed in the Mortality Tables by 52.2 weeks.  The life expectancy of the employee in the terms of weeks is then reduced to present value by utilizing the Table of Present Values which is available from the Department of Industrial Relations by finding the employee’s life expectancy in the “Number of Weeks” column.  Then look to the figure listed in the “Present Value of $1.00″ column to the right of the “Number of Weeks” column.  Multiply the figure listed in the “Present Value of $1.00″ column by the employee’s weekly benefit to determine the present value of the employee’s Permanent Total Disability benefits.  To calculate the present value of Permanent Partial Disability or Death benefits, simply locate the number of weeks of benefits payable in the “Number of Weeks” column in the Table of Present Values and locate the figure in the “Present Value of $1.00 column.  Multiply the figure listed in the “Present Value of $1.00″ column by the employee’s weekly benefit (or $220.00 whichever is less) to determine the present value of the employee’s Permanent Partial Disability benefits.

            The practitioner who intends to litigate a workers’ compensation case must become fully aware of the correct way to calculate the benefits which are to be paid.  Those who attempt to calculate workers’ compensation benefits without a complete understanding of the statutes and, more importantly, the case law are almost destined to err on behalf of their clients.  This article does not go into the plethora of exceptions to the rules, combinations of calculations usually necessary, or the case law which interprets, defines, and explains the various types of disability.  Workers’ compensation litigation, like most areas of the legal profession, is becoming increasingly specialized due to the complexity of the Alabama Workers’ Compensation Act and the opinions rendered by our honorable appellate courts.