Preservation of Error - Waiver - Affirmative Defense - Workers' Compensation - Grieser v. Advanced Disposal Services of Alabama, LLC


Grieser v. Advanced Disposal Services of Alabama, LLC, [Ms. 2160290, Aug. 11, 2017] __ So. 3d __ (Ala. Civ. App. 2017). In this unanimous decision by Judge Moore (Thompson, P.J. and Pittman, Thomas, and Donaldson, JJ., concur), the court affirms in part and reverses in part the trial court’s judgment in a workers’ compensation case.

The court affirmed the trial court’s denial of the employee’s motion for contempt. The court noted that the trial court did not make any specific findings of fact in the order denying the employee’s motion for contempt, and that the employee did not file a post-judgment motion or otherwise raise the issue of the sufficiency of the evidence regarding failure of the employer to pay for the employee’s pain management treatment. Ms. at 20. As a consequence, the court declined to address the merits of the employee’s argument concerning contempt because:

“[I] a nonjury case in which the trial court makes no specific findings of fact, a party must move for a new trial or otherwise properly raise before the trial court the question relating to the sufficiency or weight of the evidence in order to preserve that question for appellate review.”

Ms. at 20-21, quoting New Props., L.L.C. v. Stewart, 905 So. 2d 797, 801-02 (Ala. 2004).

In resolving the vocational disability issue, the court first noted that in the trial court “the employee specifically argued only that the employer had waived the ‘affirmative defense’ established in the return-to-work statute. The parties litigated that particular point, and the trial court ruled against the employee.” Ms. at 13. Consequently, the court addressed only the issue of whether the return-to-work statute constitutes an affirmative defense. The court noted that “[o]n appeal, this court is limited to considering the case in the context under the theories upon which it was tried in the proceedings below. See Vulcraft, Inc. v. Wilbanks, 54 Ala. App. 393, 395, 309 So. 2d 105, 106 (Ala. Civ. App. 1975).” Ms. at 13.

The court noted the question of whether the provisions of the return-to-work statute upon which the employer relied, and upon which the trial court based its judgment, are affirmative defenses that can be waived is a purely legal issue to which it applied as a de novo standard of review. Ibid. The court distinguished between an affirmative defense and a negative defense as follows:

“An affirmative defense is distinguishable from a negative defense in that an affirmative defense raises new matters that, assuming the allegations in the complaint to be true, constitute a defense to the action and have the effect of defeating the plaintiff’s claims on the merits while a negative defense simply seeks to refute an essential allegation of the plaintiff’s complaint.”

Ms. at 14, quoting Ex parte Gadsden Country Club, 14 So. 3d 830-833-34 (Ala. 2009). The court concluded that the return-to-work statute as a whole is not an affirmative defense because it is not a means of defeating or reducing a workers’ compensation claim, but rather is a method by which a trial court must compute the worker’s earnings in factual situations governed by the statute. Ms. at 15.

However, the court concluded that § 25-5-57(a)(3)(i) is an affirmative defense. The workers’ compensation law confers on an employee a right to petition for reconsideration of his or her permanent or partial disability rating if the employee loses employment within 300 weeks of a workplace injury. However, reconsideration is not available where “the loss of employment is for actual or threatened misconduct committed in connection with his or her work after previous warning to the employee.” Ibid., quoting § 25-5-57(a)(3)(iv). The court concluded “that § 25-5-57(a)(3)i.(i) through (v) create five separate affirmative defenses that are available to the employer in an action for reconsideration of an injured worker’s permanent-partial-disability rating.” Ms. at 16. The court concluded that the employer had waived the affirmative defense that the employee’s loss of employment was for actual or threatened misconduct by failing to plead it in its answer. Ms. at 17-18. Because the employer waived the affirmative defense, “the trial court erred in declining to consider evidence of the employee’s vocational impairment based on that defense.” Ms. at 19.

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