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archiveJuly 2017

Plan for Delays on State Route 87, U.S. Route 60

Phoenix-area residents heading to Rim Country or the White Mountains should build some extra time into their travel plans, the Arizona Department of Transportation says. ADOT is restricting State Route 87, also known as the Beeline Highway, to one lane...

From a Reader: Collecting Arizona’s Stretched Pennies

Stretched (or smashed) penny machines are a familiar sight at landmarks in Arizona and elsewhere. And an Arizona Highways reader is on a quest to stretch a penny at every machine in the Grand Canyon State. Richard Keller lives in Tolleson, a suburb of ...

Q&A: Preserving Nature and Native Culture at Glen Canyon

Master’s student Ka-Voka Jackson has combined her passion for biology and the environment with her Native American roots to help solve environmental issues from a unique perspective. With the help of the National Park Service, her professor at the Univ...

In Alabama, Requirement to Liberally Construe Workers’ Compensation Act does not apply to Assignment of Weight to Evidence

On July 21, 2017, The Alabama Court of Civil Appeals released its opinion in Laura Wyatt v. Baptist Health System, Inc. In Wyatt, the employee was a patient-care tech that experienced a sharp pain in her back when she was lifting and twisting. The pain was followed by a burning sensation and pain down into her legs and toes. She was diagnosed with transverse myelitis and continues to experience weakness in her legs, trouble with walking and balance, and has issues with her bladder and bowels. The employee filed a workers’ compensation lawsuit in Jefferson County and it subsequently transferred to Shelby County upon motion of the employer. At trial, the testimony of three doctors was received into evidence. Dr. Meador, who examined the employee, was of the opinion that the employee likely impinged an artery in her lower back during the act of lifting and twisting which resulted in a spinal cord stroke which, in turn, lead to her condition. Drs. Kirschberg and Counce conducted record reviews and offered testimony that rebutted the opinions of Dr. Meador. Dr. Kirschberg testified that a twisting motion would not cause the employee’s condition. Dr. Counce, who testified live in court, opined that the employee’s condition was not caused by trauma of by work activities. She further testified that the employee did not suffer from an impingement. Rather, it was her opinion that the condition and symptoms were more likely related to a severe vitamin B-12 deficiency. Based on the evidence at trial, the trial judge was of the opinion that the testimony of Drs. Kirschberg and Counce was more well-reasoned, medically sound, and persuasive. As such, judgment was rendered in favor of the employer. The employee timely appealed the decision. Among the reasons for appeal, the employee noted that the trial court erred in failing to resolve reasonable doubts in the evidence in favor of the employee. The Court of Civil Appeals noted that the requirement of liberally construing the construction of the Workers’ Compensation Act to effectuate its beneficent purposes had nothing to do with the assignment of weight to the evidence. Rather, judges in workers’ compensation matters should consider the evidence and assign weight as they would in any other civil matter. Since the trial judge obviously assigned much more weight to the testimony of Drs. Kirschberg and Counce, it was clear that substantial evidence supported the judge’s ruling in favor of the employer. As such, the judgment was affirmed.

Successful Alabama Appeal only Postponing the Inevitable

On July 21, 2017, the Alabama Court of Civil Appeals released its opinion in Felisha Bailey v. Jacksonville Health and Rehabilitation Center. In Bailey, the employee was a certified nursing assistant who sued her employer and the third party administrator (TPA) handling her workers’ compensation claim. Count One of her complaint was against her employer for workers’ compensation benefits related to her claim of contracting scabies and the related psychological issues. Count Two was against the TPA for outrageous conduct. Count Two was subsequently dismissed upon motion of the TPA. Rather than proceed to trial on the workers’ compensation issues, the employer elected to first file a motion for summary judgment. In support of the motion, the employer offered evidence which demonstrated that the employee never contracted scabies. Rather, the employee more likely suffered from delusional parasitosis whish is a disorder that causes a person to believe that they are infested by parasites. The evidence in support of this theory was compelling and the judge granted the motion for summary judgment. The employee timely filed her appeal. On appeal, the employee pointed out that the trial judge improperly weighed the evidence in granting the employer’s motion for summary judgment. Since there was some evidence that could arguably support the employee’s theory, the Court of Civil Appeals agreed with the employee that granting summary judgment was improper. As such, the judgment was reversed and remanded for further proceedings. My Two Cents: Unless there is evidence introduced at trial that is not referenced in the Court’s opinion, the time and expense associated with appealing the trial court’s decision is probably all for naught.

Space Age Material Aids ADOT Bridge Repairs

Two major Interstate 17 bridges in Phoenix were recently repaired using a new carbon-fiber technique developed by a Tucson company. The Arizona Department of Transportation says the repairs focused on bridge girders that were damaged when they were str...
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