An Alabama appellate court has cleared the way for a lawsuit that alleges outrageous and fraudulent conduct by American International Group and Coventry against a worker who was injured in an explosion and sought psychological care.
The Court of Civil Appeals reversed a decision by the Jefferson Circuit Court dismissing the suit filed by Orethaniel Swain. It found that the exclusive remedy of the Alabama workers’ compensation law does not necessarily bar his claims of intentional infliction of emotional distress, fraud and conspiracy.
Swain’s attorney, H.E. “Chip” Nix of Montgomery, said his client clearly suffered from post-traumatic stress syndrome, but this treating physician refused to refer him to a mental health professional and declared him fully recovered and ready to return to work. Swain called a crisis health line, where a counselor advised him to seek treatment, Nix said. He went to the emergency room and was immediately admitted to the hospital, where he was treated for nine days.
Nix said he still has to prove that AIG and Coventry’s conduct was fraudulent and so outrageous that exclusive remedy does not apply, but he has taken similar cases to trial with good results.
“This type of thing happens everyday in Alabama in workers’ comp claims,” he said. “It is ridiculous. It is outrageous. Workers’ compensation companies treat workers in this state like they are dirt and they should be ashamed of themselves.”
Swain was working for Imerys USA Inc. on Dec. 11, 2017 when a large electrical circuit breaker exploded next to him. An AIG insurer, the Insurance Co. of the State of Pennsylvania assigned the claim to adjuster Sandra Thomas. Coventry Health Care Workers’ Compensation assigned Jackie Angeles as nurse case manager.
“Basically what she told him is, ‘I am your nurse. I will take care of you. I will make sure you see all the right doctors and that you are treated for all of your injuries,” Nix said. “She blatantly lied.”
Swain said he suffered respiratory problems and pain in his back long after the explosion. He said he also suffered anxiety and was unable to do anything other than sit in a chair while at work. His treating physician, Dr. Bruce Romeo, referred him to a neurologist. That neurologist recommended that he seek care from a psychiatrist or neuropsychiatrist, but no referral was made, Nix said.
Instead, Romeo declared that Swain had reached maximum medical improvement on May 21, 2018 and sent him back to work without restrictions. Nix said his client suffered a mental breakdown and was treated for nine days at the Brookwood Medical Center in Birmingham for nine days. Doctors there have asked him to continue outpatient treatment and directed him not to return to work.
Swain’s health insurer is paying for those treatments, not his workers’ compensation carrier, and he is responsible for the co-payments, according to the lawsuit.
Nix said he is continuing to pursue Swain’s workers compensation claim and contends his client is permanently and totally disabled. The claims of outrageous and fraudulent conduct are continuing as a separate civil action.
The Court of Civil Appeals said that the Alabama Supreme Court ruled in 1989 that claims relating to how an employer handles a workers’ compensation claim are not necessarily barred by exclusive remedy. Claimants show that they suffered new injuries in addition to the work-related injuries because of intentional fraudulent or outrageous conduct.
The appellate court ruled that Swain alleged facts that, if proven, may qualify for that exemption to exclusive remedy. He will have to show that the actions were (1) intentional or reckless; (2) were extreme and outrageous; and (3) caused emotional distress so severe that no reasonable person could be expected to endure it,” according to the court’s opinion.
Now the case will return to the Jefferson County Circuit Court. Nix said he is confident that he can prove his client’s claims, even though the suit will likely be assigned to the same judge who dismissed it, Javan Patton.
He said claims adjusters need to learn a lesson.
“Lawyers understand the tension that higher premiums bring on insurance companies and employers, but something has to be done to incentivize workers’ comp adjusters to stop basing their decisions solely on money,” Nix said.
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