The Alabama Court of Civil Appeals rendered a decision in September 2018 that is instructive and interesting. It was the second appellate decision of three in City of Gadsden v. Billingsly, (CV-10-900283.80); the third appellate decision in that case is discussed in Death Changes Authority. That discussion of the nature of contractual relationships and agency is an important read for those who must deal with the unfortunate passing of a client.
In the second appellate action in September 2018, the focus of the Court's analysis is instead upon following directions. That is sometimes an issue in litigation, not because parties are recalcitrant or obsequious, but because the very nature of legal practice is time-consuming and complex. It is too often viewed in retrospect (and clarity is so much easier in hindsight). Advocates are intent on striving for their clients. Judges are focused on doing what is right under the law.
The accident in this case was not apparently unlike so many in workers' compensation. There was a traumatic event (car accident), allegations of multiple injuries, and litigation regarding the relationship of these complaints to the accident. Ultimately, the trial judge determined "that the left shoulder claim only arises out of [the
employee's] employment." Based upon that conclusion, the injured worker was "awarded benefits based upon
a 25% impairment rating to that shoulder." Conversely, the judge denied the relationship and compensability of other injuries.
In the first appeal following that decision, the employee argued that the trial judge erred in rejecting the other (non-shoulder) injury allegations and that the award of benefits using that impairment rating was improper. The Appellate Court affirmed the rejection of other injuries, concluding that competent evidence supported that conclusion. It bears persistent reiteration that appellate courts do not reweigh the evidence or decide whether other conclusions are likewise supported. The appellate process instead centers on whether there is competent evidence that supports the conclusions and decisions of the trial court. In this instance, the appellate court concluded there was such evidence, and so it denied the portion of the appeal seeking a different factual conclusion.
However, the Appellate Court agreed with the injured worker on a second point, that the "left-shoulder injury was not an injury to a scheduled member
under the Act." Some workers' compensation systems provide payment for permanent injury using a schedule that is founded upon specific portions of the body, and loss or functional limitation to those specific portions. The Appellate Court concluded in the first appeal that this injured worker's compensation should be "based on the employee's
loss of ability to earn and not her physical-impairment rating." This is a distinction between "impairment" and "disability," two terms that are often confused. On that basis, therefore, the case was sent back to the trial court for re-determination of the appropriate permanent indemnity benefits on that "disability" standard.
On remand, acting on the Appellate Court's instructions, the trial court "conducted a 'scheduling
conference.'" It is noteworthy that the court apparently held no new hearing (new evidence or argument). The trial court then ordered each party to submit a "proposed order" for the court to consider. The Appellate Court noted that one party timely did so thereafter, and the other apparently did not. The trial court then weeks later entered a second order again telling the parties to "prepare and to file
electronically a proposed order or judgment." It is possible that the delay resulted in the case being less than fresh on the trial judge's mind when it was finally decided the second time.
After the second order requiring proposed orders, the employer submitted a proposed order that reiterated the "previous determination" of the trial court, which had been affirmed by the Appellate Court regarding the singular relationship of the shoulder. That proposed order suggested findings about the employee's "age, educational background, work experience, medical
situation, pain complaints, and hiring bias," and proposed a conclusion regarding the resulting "loss in her ability to earn income."
The employee submitted a proposed order that "suggested determinations" regarding the effects of more than the shoulder injury. This order essentially re-opened or reconsidered the prior conclusions of only the shoulder being compensable. Upon the combination of multiple injuries and complaints detailed therein, the employee's order suggested the conclusion of a loss of "100% of her ability to earn a living." Shortly thereafter, the trial court entered an order ("judgment") that essentially followed the employee's proposed order.
The employer appealed (the second review) and the Appellate Court agreed that the judgment did not "conform to the mandate" the Appellate Court had issued. The mandate is the instruction of an appellate court. This Court had spoken, affirming the conclusion that only the shoulder was related. The trial court, on remand, essentially revisited its earlier conclusion of only the shoulder, and its order on remand listed multiple conditions. One hopes that if the judge had drafted this judgment, instead of one of the lawyers, the decision would have been both more concise and clear.
The Appellate Court concluded that by ignoring its affirmation of the shoulder-only decision, and by ignoring the specific instructions of what the trial court was to do on remand, the trial court overstepped its bounds. Remand, it reminded, is "for proceedings not
inconsistent with" the holding of the Appellate Court. The Court reminded that "when a case is remanded to a trial court after a
decision on appeal, 'issues decided by the appellate
court become law of the case and the trial court's
duty is to comply with the appellate mandate...."' (Citations omitted). The "trial court is not
free to reconsider issues finally decided in the
mandate." In short, the trial judge is to do as the appellate court instructs.
The trial court should have simply made "a determination of 'the
extent, if any, to which the employee's left-shoulder injury
has affected her ability to earn income,'" as that was the instruction from the Appellate Court. That the employee contends the trial court's earlier "shoulder-only" determination was error does not change that determination or the fact that it was affirmed previously by the Appellate Court. Certainly, a judge might be merely striving to do the right thing in such a setting, and might be sincerely convinced of her/his prior findings being error, but would still be wrong to ignore the instructions of the Appellate Court.
Upon that conclusion, the Appellate Court remanded again, with instructions that the trial court (1) "reinstate its previous
judgment . . . except" as to the calculations "based solely upon the 25% physical-impairment rating." The Court instructed that "as to that issue alone, the trial court, based upon the
existing record in the case, is to make findings of fact and
state conclusions of law" in awarding permanent benefits. Thus, the instruction is specific, there would be no further evidence adduced.
It would be interesting to know how the trial court would have approached the substance of that analysis, whether that third pitch would have been a home run or dribbling foul. But, alas, that was not meant to be and the case soon met its unfortunate procedural end otherwise, see Death Changes Authority.
It would be interesting to know how the trial court would have approached the substance of that analysis, whether that third pitch would have been a home run or dribbling foul. But, alas, that was not meant to be and the case soon met its unfortunate procedural end otherwise, see Death Changes Authority.
