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Jones v. ARD Contracting12/17/2004
Vandal Jones appeals from an adverse decision by the Baldwin Circuit Court on his claim for workers' compensation benefits against his former employer ARD Contracting, Inc. ("ARD"). We reverse and remand.
Jones worked as a carpenter for ARD and alleged in his complaint that he was injured on two separate occasions while working in the line and scope of his employment. First, Jones alleged that on December 13, 1997, he was climbing some rebar when the rebar snapped, causing him to fall to the ground, landing on his back. Jones received medical treatment for the injury and subsequently returned to work.
Jones also alleged that on February 17, 1999, he was using his left arm to pull wall paneling from a concrete form off of a wall. He testified at a hearing that he pulled on the paneling for approximately 20 to 30 minutes until it came loose. He stated that he did not feel any pain as a result of the incident on that day, but that on the next day he started to feel pain in his back and left shoulder. He continued to work the next couple of days, but on the morning of February 20, 1999, a Saturday, he woke up in severe pain -- his feet and legs were numb, he was having back spasms, and he was unable to get himself out of bed. Later that day, Jones went over to his mother's house and had her drive him to the job site because he was supposed to work that day and he wanted to inform his supervisor that he would be unable to work.
Upon arriving at the job site, Jones, with his mother beside him, informed construction superintendent Paul Ellis of his injury. Jones informed Ellis that he had injured his back on the job and that that was why he had not come into work that day. Ellis did not fill out a "first report of injury" form because, Ellis testified, he did not think Jones had made "that big deal" out of the injury. Jones was laid off two days later because ARD had been unable to secure another construction job for several of its employees. The first report of injury filed concerning the injury arising from the February 17, 1999, incident was dated July 21, 1999. Jones has not worked for ARD since February 22, 1999.
On July 12, 1999, Jones filed his workers' compensation complaint against ARD for his two alleged injuries. A hearing was held on November 22, 1999, dealing solely with the issue of coverage for the February 17, 1999, injury. The trial court heard testimony from Jones, from his mother Sally Jones, and from Ellis, and it accepted documentary evidence in the form of depositions and medical records. On February 9, 2000, the trial court entered a judgment in which it concluded: (1) that the February 17, 1999, injury was a separate injury from the one that had allegedly occurred on December 13, 1997; (2) that Jones "clearly did not give timely written notice" of the alleged February 17, 1999, injury; and (3) that Jones had not provided timely oral notice of the injury either, and, therefore, the injury was not compensable. The trial court indicated that it would conduct further proceedings concerning the December 13, 1997, injury.
Subsequently, Jones and ARD entered into an agreement concerning the December 13, 1997, injury. The trial court approved this settlement agreement on July 16, 2003. Jones appeals from the February 9, 2000, judgment concerning the February 17, 1999, injury.
The sole issue on appeal is whether Jones gave ARD the required statutory notice of his injury.
"Section 25-5-78, Ala. Code 1975, provides, in pertinent part, that 'no compensation shall be payable [to an injured employee] unless written notice is given within 90 days after the occurrence of the accident....' 'An employee is not entitled to
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