Victoryland v. Patricia Dianne Arnold (Appeal from Macon Circuit Court: CV-08-46).

Rel: August 16, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter
Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that
corrections may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
SPECIAL TERM, 2024
_________________________

CL-2024-0217
_________________________

Victoryland

v.

Patricia Dianne Arnold

Appeal from Macon Circuit Court
(CV-08-46)

MOORE, Presiding Judge.

Victoryland ("the employer") appeals from an amended judgment

entered by the Macon Circuit Court ("the trial court") on February 13,

2024, denying the employer's petition to be relieved of liability for

future medical expenses for a work-related back injury sustained by

Patricia Dianne Arnold ("the employee"). We affirm the judgment.
CL-2024-0217

Background

On August 19, 2006, the employee fell while working for the

employer, injuring her lower back ("the 2006 work-related injury"). On

May 8, 2008, the employee commenced a civil action against the

employer in which she sought benefits from the employer pursuant to

the Alabama Workers' Compensation Act ("the Act"), Ala. Code 1975, §

25-5-1 et seq. The parties reached an agreement that settled the

workers' compensation claim, which was approved by the trial court in a

judgment entered on June 16, 2009 ("the 2009 judgment"). The 2009

judgment provides, among other things, that liability for reasonably

necessary medical expenses proximately resulting from the 2006 work-

related injury is to be "open," i.e., the employer would remain liable for

such medical expenses arising after the 2009 judgment.

On June 15, 2022, the employer filed a "motion for relief of order

to provide future medical benefits under [the Act]." In that motion, the

employer alleged that the employee had been involved in a motor-

vehicle accident on October 4, 2018 ("the 2018 motor-vehicle accident")

and that the employee had recovered damages in a settlement with the

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third parties who were responsible for the 2018 motor-vehicle accident.

In the "motion," the employer argued that the trial court should

determine that it no longer owed the employee medical benefits

pursuant to the 2009 judgment because, it said, the 2018 motor-vehicle

accident was an intervening and superseding cause of her lower back

problems and because the employee was judicially estopped from

asserting that she continued to need medical treatment on account of

the 2006 work-related injury. On April 10, 2023, the trial court

purported to resolve that controversy by entering a judgment

summarily denying the "motion." The employer timely appealed from

that judgment.

In Victoryland v. Arnold, [Ms. CL-2023-0340, Jan. 5, 2024] ___ So.

3d ___ (Ala. Civ. App. 2024) ("Arnold"), this court, citing Total Fire

Protection, Inc. v. Jean, 160 So. 3d 795, 799 (Ala. Civ. App. 2014), held

that the employer's "motion" was, in substance, a petition filed

pursuant to Ala. Code 1975, § 25-5-81, a part of the Act, to resolve a

controversy between the parties regarding the employee's right to

future medical treatment under the 2009 judgment. In Arnold, this

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court reversed the judgment and remanded the case with instructions

for the trial court to enter written findings of fact and conclusions of law

as required by Ala. Code 1975, § 25-5-88, a part of the Act.

On February 13, 2024, the trial court complied with our remand

instructions by amending the judgment to make the required findings of

fact and conclusions of law. In the amended judgment, the trial court,

applying the standard adopted by our supreme court in Ex parte Pike

County Commission, 740 So. 2d 1080 (Ala. 1999), determined that the

2018 motor-vehicle accident was not an intervening and superseding

cause that relieved the employer of liability to pay for the employee's

medical treatment for her lower back condition. The trial court also

determined that the employee was not judicially estopped from claiming

a right to continued medical benefits under the 2009 judgment.

Accordingly, the trial court again denied the employer's petition to

terminate its liability for future medical benefits. The employer timely

appealed the amended judgment.

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Issues

On appeal, the employer argues that the trial court should have

determined that it no longer owes the employee medical benefits

pursuant to the 2009 judgment because, it says, (1) the 2018 motor-

vehicle accident is the intervening and superseding cause of her lower

back condition and (2) the employee should be judicially estopped from

claiming the benefits of the 2009 judgment.

Standard of Review

Section 25-5-81(e), Ala. Code 1975, a part of the Act, provides:

"(1) In reviewing the standard of proof set forth herein
and other legal issues, review by the Court of Civil Appeals
shall be without a presumption of correctness.

"(2) In reviewing pure findings of fact, the finding of
the circuit court shall not be reversed if that finding is
supported by substantial evidence."

On appeal, a trial court's findings of fact are conclusive on this

court if they are supported by substantial evidence. Edwards v. Jesse

Stutts, Inc., 655 So. 2d 1012 (Ala. Civ. App. 1995). "Substantial

evidence" is " 'evidence of such weight and quality that fair-minded

persons in the exercise of impartial judgment can reasonably infer the

5
CL-2024-0217

existence of the fact sought to be proved.' " Ex parte Trinity Indus., Inc.,

680 So. 2d 262, 268 (Ala. 1996) (quoting West v. Founders Life

Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989)); see also Ala.

Code 1975, § 12-21-12(d).

Analysis

I. Intervening and Superseding Cause

In Ex parte Pike County Commission, Fred Green injured his

lower back and abdomen in a series of work-related accidents occurring

between 1991 and May 1995. In September 1995, while at home, Green

lifted a 12-pound baby and experienced a further onset of lower back

and abdominal pain. Diagnostic testing after the baby-lifting episode

revealed that Green had a herniated disk. Green's employer, the Pike

County Commission, denied that the herniated disk was compensable.

Green commenced a civil action seeking workers' compensation benefits

for the injury. In a deposition taken in that action, Green's treating

neurosurgeon opined that the previous work-related accidents had

caused the herniated disk and that the baby-lifting episode had

exacerbated the symptoms from the injury. The Pike Circuit Court

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determined that Green had suffered a "recurrence" of his work-related

injuries when lifting the baby and awarded Green workers'

compensation benefits for the injury. On appeal, this court affirmed the

judgment. See Pike County Comm'n v. Green, 740 So. 2d 1076 (Ala.

Civ. App. 1998).

Our supreme court granted the Pike County Commission's

petition for the writ of certiorari to review this court's decision. The

supreme court determined that the Pike Circuit Court and this court

had erred by applying the "last injurious exposure" rule to determine

the compensability of the injury, because, it said, that rule applies to

disputes involving successive work-related injuries to determine which

of two or more employers or workers' compensation insurance carriers

should be responsible for the medical treatment and compensation owed

to the injured employee. Our supreme court said:

"The considerations that apply to place workers'
compensation responsibility on the current insurer 'are
inapplicable when the subsequent injury is [not work-
related].' Warpinski v. State Indus. Ins. Sys., 103 Nev. 567,
569, 747 P.2d 227, 229 (1987). Instead, such cases are
governed by the 'successive-compensable-injury' test. When
determining whether a successive injury is compensable, the
general rule is that '[w]hen the primary injury is shown to
7
CL-2024-0217

have arisen out of and in the course of employment, every
natural consequence that flows from the injury likewise
arises out of the employment, unless it is the result of an
independent intervening cause attributable to [the]
claimant's own intentional conduct.' 1 [Arthur Larson & Lex
K. Larson, Larson's Workers' Compensation Law,] § 13.00
[(1998)]. "In applying this rule to a factually similar case,
the Supreme Court of Appeals of West Virginia held:

" '[I]f a worker's compensation claimant shows
that he received an initial injury which arose out
of and in the course of his employment, then
every normal consequence that flows from the
injury likewise arises out of the employment. If,
however, a subsequent aggravation of the initial
injury arises from an independent intervening
cause not attributable to the claimant's
customary activity in light of his condition, then
such aggravation is not compensable.

" 'Thus, the fact that the claimant is injured
and then returns to work does not mean that he
is foreclosed from demonstrating that the original
injury became aggravated by some routine event
which triggered its recurrence. Such routine
event is ordinarily one where the claimant is
doing an activity that would be customary in light
of his condition.'

"Wilson v. Workers' Compensation Comm'r, 174 W.Va. 611,
616, 328 S.E.2d 485, 490 (1984); see also Lou Grubb
Chevrolet, Inc. v. Industrial Comm'n, 174 Ariz. 23, 26, 846
P.2d 836, 839 (Ariz. App. 1992) ('[An] employee's reasonable
conduct in causing a later nonindustrial injury does not
relieve the employer of liability if the later injury is the
"direct and natural result" of the compensable work injury.').
8
CL-2024-0217

Thus, 'a subsequent injury, whether an aggravation of an
original injury or a new and distinct injury, is compensable if
it is the direct and natural result of a compensable primary
injury.' 1 Larson, supra, § 13.11."

740 So. 2d at 1084. The supreme court determined that Green was

entitled to workers' compensation benefits for the herniated disk under

the successive-compensable-injury test because the injury was a direct

and natural result of his work-related accident and his later act of

lifting the baby, being "customary in light of [his] condition," was not an

intervening and superseding cause of his condition. Id.

In the amended judgment in this case, the trial court applied the

successive-compensable-injury test from Ex parte Pike County

Commission to determine whether the 2018 motor-vehicle accident was

an intervening and superseding cause of the employee's lower back

injury. The employer agrees that the successive-compensable-injury

test is the governing standard to resolve the controversy between the

parties; the employer maintains, however, that the trial court erred by

misapplying the successive-compensable-injury test to the facts of the

case.

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To establish the facts of the case, the employer submitted the

depositions of the employee and Dr. Timothy Holt from the third-party

action. In her deposition, the employee testified that she had

experienced lower back pain since a 1990 motor-vehicle accident. She

underwent a lumbar-spine-fusion surgery in 1991 that did not relieve

her symptoms. In 2006, while working for the employer, the employee

fell to the ground when a chair rolled away from her as she was sitting

down. According to the employee, her back condition worsened

following the 2006 work-related injury, resulting in muscle spasms and

pain extending into her hips, buttocks, and legs. After years of dealing

with those symptoms, the employee underwent a second lumbar-spine-

fusion surgery in 2016. Following the 2016 surgery, the employee

continued to suffer from lower back pain and associated symptoms for

which she regularly used medication. The employee's pain became

sharper and more localized after a screw in the hardware that had been

placed in her lumbar spine broke in early 2018, and she was

contemplating a third surgery to address that problem at the time of

the 2018 motor-vehicle accident.

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CL-2024-0217

The employee testified that, on October 4, 2018, as part of her

ordinary daily routine, she was operating an automobile owned by her

daughter while driving two of her grandchildren to school. As she was

passing through a construction zone on Notasulga Highway, a large

dump truck improperly entered her lane of traffic from the right

shoulder of the road, striking the passenger's side of the automobile and

forcing the automobile to cross the opposing lane of traffic before coming

to a rest on the left shoulder of the road. The employee testified that,

the night following the 2018 motor-vehicle accident, she began

experiencing increased pain in her lower back that radiated down her

legs and that that pain had not abated since. The employee testified

that the 2018 motor-vehicle accident had exacerbated her lower back

condition. In April 2019, she underwent a third surgery, which, again,

did not relieve her back pain. As of 2021, she was still experiencing

daily back pain radiating into her legs, along with muscle spasms,

which prevented her from engaging in activities that she was able to

engage in before the 2018 motor-vehicle accident, and she was

considering a fourth surgery to address those problems.

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The parties to the third-party action deposed Dr. Timothy Holt

twice. Dr. Holt is the orthopedic surgeon who was selected by the

employer to treat the employee's 2006 work-related injury pursuant to §

25-5-77, a part of the Act. Dr. Holt testified in his depositions that he

had performed the 2016 lumbar-spine-fusion surgery to address the

employee's lingering pain and symptoms from the 2006 work-related

injury. In early 2018, he determined that the employee was suffering

from a condition known as pseudoarthrosis, which occurs when a fusion

fails to completely stabilize the lumbar spine, and that one or more

screws had broken in the hardware that he had installed in her spine

during the 2016 lumbar-spine-fusion surgery. Before the 2018 motor-

vehicle accident, Dr. Holt had recommended that the employee undergo

a third surgery to address those problems. After the 2018 motor-vehicle

accident, the employee reported worsened pain and increased

symptoms. Dr. Holt reiterated his recommendation for surgery, which

the employee eventually underwent in April 2019 without success. As

of 2021, Dr. Holt was recommending that the employee either undergo

12
CL-2024-0217

another surgery to her lumbar spine or consider implantation of a

dorsal-column stimulator to block her pain.

Dr. Holt believed that the 2018 motor-vehicle accident probably

had caused a broken screw in the 2016 fusion hardware to shift and

damage the adjacent nerve in the employee's lumbar spine. Dr. Holt

opined that the employee had permanently aggravated her preexisting

lower back condition in the 2018 motor-vehicle accident. Dr. Holt

testified that he considered the employee to have a "hybrid" injury

emanating partially from the 2006 work-related back injury and

partially from the aggravation of that injury by the 2018 motor-vehicle

accident. Dr. Holt testified that he performed the April 2019 surgery to

remove the broken hardware from the 2016 lumbar-spine-fusion

surgery and to again attempt to stabilize the employee's lumbar spine

through a different fusion technique. When the employee reported

continuing pain and other symptoms following the 2019 surgery, Dr.

Holt recommended implantation of the dorsal column stimulator as a

last measure. Dr. Holt testified in his second deposition that he had

recommended the dorsal column stimulator because of the employee's

13
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increased and unrelenting pain resulting from the 2018 motor-vehicle

accident, not from the 2006 work-related injury. Dr. Holt assigned the

employee a 4% permanent impairment rating from the 2018 motor-

vehicle accident.

Based on the foregoing deposition testimony, the trial court found

that, as a result of the 2006 work-related injury, the employee had

sustained an injury causing muscle spasms and pain in her lower back,

hip, and buttocks; that, in 2016, the employee underwent a lumbar-

spine-fusion surgery on account of the 2006 work-related injury; that,

following the 2016 surgery, the employee had continued to suffer

"ongoing, but manageable, pain and spasms"; that, at the time of the

2018 motor-vehicle accident, the employee was engaged in a customary

activity in light of her condition when she was driving her

grandchildren to school; that the 2018 motor-vehicle accident was not

attributable to the employee's own intentional misconduct; that the

2018 motor-vehicle accident exacerbated the 2006 work-related injury

by increasing the employee's "baseline" symptoms, "resulting in more

severe pain, spasms, and damage to surgical hardware"; and that

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"[t]he increased pain and related symptoms are consistent
with and related to the [2006 work-related] injury because ...
the [employee's injury from the 2018 motor-vehicle accident]
is consistent with [the 2006 work-related] injury and
resulting spinal fusions combined with a vehicle collision.
The issues involve the same area of the spine and differ only
in the intensity and frequency of the pain/spasms."

From those facts, the trial court concluded that the 2018 motor-vehicle

accident was not an intervening and superseding cause of the

employee's lower back condition.

The employer contends that, upon finding that the 2018 motor-

vehicle accident aggravated the employee's preexisting lower back

condition, the trial court should have determined that her aggravated

condition was not a direct and natural consequence of the 2006 work-

related injury. Rather, the employer contends, the trial court should

have concluded that the 2018 motor-vehicle accident was an

" 'independent intervening accident not attributable to the customary

activity in light of [the employee]'s condition.' " Employer's brief, p. 20.

Because the 2018 motor-vehicle accident was not a routine event or

"customary activity," like the lifting of a baby was in Ex parte Pike

County Commission, the employer contends that any aggravation of the

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employee's preexisting condition should not be treated as a successive

compensable injury.

In Ex parte Pike County Commission, the supreme court

considered the aggravation of a work-related injury caused by the stress

of an ordinary physical movement. Consequently, the opinion does not

specifically address whether an unusual traumatic event, such as a

motor-vehicle accident, that aggravates an original, compensable injury

should be treated as an intervening and superseding cause. However,

this court considered a similar scenario in Benton v. Winn-Dixie

Montgomery, Inc., 705 So. 2d 495 (Ala. Civ. App. 1997).

In Benton, Scott Benton injured his lower back in a 1989 work-

related accident, herniating the L4-L5 disc in his lumbar spine.

Following two laminectomies and a lumbar-spine-fusion surgery at the

L4-L5 and L5-S1 levels, Benton was released from medical care in 1993,

and he settled his workers' compensation claim against his employer,

leaving medical benefits open. In July 1994, Benton was involved in a

motor-vehicle accident that resulted in injuries to the same parts of his

body that had previously been injured in the 1989 work-related

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accident. In 1996, the authorized treating surgeon performed surgery

to address the injuries resulting from the 1994 motor-vehicle accident,

which Benton's former employer refused to cover. Benton filed a

petition in the Montgomery Circuit Court to require his former

employer to pay for the 1996 surgery, but his claim was denied.

On appeal, this court reversed the judgment of the Montgomery

Circuit Court. Benton's authorized treating surgeon testified that the

1996 surgery had addressed Benton's pseudoarthrosis, which was not

due to the trauma of the 1994 motor-vehicle accident but was due solely

to a failure of the 1992 fusion to adhere to Benton's spine. According to

Benton's authorized treating surgeon, the surgery also addressed the

fracture of the surgical mass at the L5-S1 area of the spine, which was

due to the trauma from the 1994 motor-vehicle accident. The surgeon

explained that those injuries would not have occurred without the

preexisting fusion surgery and the weakened condition of Benton's

lumbar spine. The surgeon opined that both the 1989 work-related

accident and the 1994 motor-vehicle accident had contributed to the

fracture. This court held that Benton had established the necessary

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causal connection between the original, compensable injury and the

1996 surgery by presenting evidence indicating that the 1989 work-

related accident and the 1994 motor-vehicle accident had combined to

produce the injuries necessitating that treatment.

Although Benton predates Ex parte Pike County Commission, it

applied the successive-compensable-injury test as set forth by this court

in Erwin v. Harris, 474 So. 2d 1125, 1127 (Ala. Civ. App. 1985). In

Erwin, this court said:

"It is well established that, under general workmen's
compensation law, an injury which occurs subsequent to an
original, compensable injury is itself compensable if it is the
direct and natural result of the original, compensable injury.
1 A. Larson, The Law of Workmen's Compensation, §§ 13.10,
13.11, 13.12 (2d ed. 1985). This rule applies regardless of
whether the subsequent injury is an aggravation of the
initial compensable injury or a new and distinct injury.
Larson, supra. Therefore, if an injury occurs as the direct
and natural result of the original, compensable injury, it is a
reasonable conclusion that any medical expenses incurred by
the employee for the subsequent injury are those that the
employer is required to pay as 'reasonably necessary' under §
25-5-77(a). ...

"The burden is upon the claimant to establish the
causal connection between the initial, compensable injury
and the subsequent injury for which benefits are sought."

18
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474 So. 2d at 1127. In Benton, this court, citing Erwin, held that, to

satisfy the successive-compensable-injury test, Benton had to prove a

causal connection between the injuries sustained in the 1994 motor-

vehicle accident and the original, compensable injuries sustained in his

1989 work-related accident. 705 So. 2d at 497. This court determined

that Benton had met that burden by proving that the 1989 work-related

injury and the intervening trauma from the 1994 motor-vehicle accident

had both contributed to the medical conditions addressed in the 1996

surgery.

As Benton illustrates, under the successive-compensable-injury

test as espoused in Erwin, an employer may remain liable for medical-

treatment expenses necessitated by the aggravation of a preexisting

work-related injury caused by trauma from a subsequent,

nonoccupational motor-vehicle accident. Ex parte Pike County

Commission basically adopted the same successive-compensable-injury

test that this court applied in Erwin and Benton; however, Ex parte

Pike County Commission additionally holds that an employee cannot

recover workers' compensation benefits for a subsequent off-the-job

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injury resulting from an intervening cause attributable to the

employee's own intentional conduct. Thus, under Ex parte Pike County

Commission, if an employee aggravates the original, compensable

injury by intentionally engaging in activity unsuitable to his or her

injured condition, the employer would not be liable for any medical-

treatment expenses resulting from the aggravation. In this case, the

employer does not contend that the employee was operating her

automobile intentionally in disregard of medical restrictions or in such

a manner as to cause the 2018 motor-vehicle accident. The evidence

shows, as the trial court found, that the employee was operating her

automobile routinely as she was driving two of her grandchildren to

school and that she was engaged in a customary activity in light of her

condition when the 2018 motor-vehicle accident occurred. Although the

2018 motor-vehicle accident itself was an unusual traumatic event, it

was not an intervening cause attributable to the employee's own

intentional conduct. See Cannon v. Goodyear Tire & Rubber Co., 171

N.C. App. 254, 261, 614 S.E.2d 440, 445 (2005) ("We find that,

regardless of whether plaintiff was en route to receive treatment for his

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work-related injury, the automobile accident was not an independent

intervening cause because it did not result from plaintiff's own

intentional conduct.").

Like in Benton, substantial evidence supports the trial court's

determination of a causal connection between the 2006 work-related

injury and the injury that the employee sustained in the 2018 motor-

vehicle accident. Before the 2018 motor-vehicle accident, the employee

had developed pseudoarthrosis and a fractured surgical site as a direct

and natural consequence of the 2006 work-related injury. The 2018

motor-vehicle accident aggravated the employee's 2006 work-related

injury, resulting in increased pain and other recurring symptoms. The

trauma from the 2018 motor-vehicle accident acted upon the weakened

condition of the employee's lumbar spine to produce further and more

intensive injuries to that same area for which the employee continues to

require medical care.1 The trial court properly applied the successive-

1
Although Dr. Holt testified at one point in his second deposition
that he attributed the need for the dorsal column stimulator solely to
the 2018 motor-vehicle accident, the trial court was not bound to
conclude that that treatment was not compensable. Dr. Holt had
earlier explained that he had recommended that treatment due to the
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compensable-injury test in determining that the employer remains

liable for such treatment. We find no basis for reversing the trial

court's judgment on this ground.

II. Judicial Estoppel

The employer next contends that the employee should be judicially

estopped from asserting her right to continuing medical care under the

2009 judgment. The affirmative defense of judicial estoppel precludes a

party from assuming a position in a legal proceeding inconsistent with

one previously asserted in another legal proceeding. Ex parte First

Alabama Bank, 883 So. 2d 1236, 1244-45 (Ala. 2003). On October 2,

2019, the employee commenced a civil action against, among other

defendants, the operator of the dump truck and his employer. The

employer maintains that the employee asserted inconsistent positions

_________________________
increased pain that the employee experienced following the aggravation
of the 2006 work-related injury by the 2018 motor-vehicle accident.
Considering the entirety of Dr. Holt's deposition testimony in context,
see McGough v. G & A, Inc., 999 So. 2d 898, 905 (Ala. Civ. App. 2007)
(stating that, in deciding whether deposition testimony meets
substantial-evidence test, court must not consider excerpts of testimony
abstractly, but must consider the deposition testimony as a whole), the
trial court reasonably could have concluded that the treatment was
compensable under the successive-compensable-injury test.
22
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as to the cause of her current lower back problems in the third-party

action and in the underlying workers' compensation case. According to

the employer, the employee claimed in the third-party action that she

had aggravated her preexisting lower back condition in the 2018 motor-

vehicle accident, whereas in the underlying workers' compensation case

the employee "now maintains that her current back injury is not the

result of [the 2018] motor[-]vehicle accident ... but rather is the 'natural

progression' of her [2006 work-related injury]." Employer's brief, p. 27.

In the amended judgment, the trial court rejected the employer's

judicial-estoppel defense, finding that the employee had not assumed

inconsistent positions in the two legal proceedings. We agree.

In her deposition in the third-party action, the employee claimed

that she had aggravated her 2006 work-related injury in the 2018

motor-vehicle accident. In response to the employer's petition in the

underlying workers' compensation case, the employee maintained that

identical position -- that she had aggravated the 2006 work-related

injury in the 2018 motor-vehicle accident. In her response, the

employee further argued that "[s]uffering an aggravation of a lower

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back condition after being involved in a motor vehicle accident is a

natural, readily foreseeable consequence for a person who already

suffers from an injury in that area of the body." That argument is not

inconsistent with her position in the third-party action; it is only an

explanation as to why the aggravation of her 2006 work-related injury

caused by the trauma of the 2018 motor-vehicle accident should also be

considered compensable under the successive-compensable-injury test.

For judicial estoppel to apply, a party's later position must be

"clearly inconsistent" with its earlier position. White Tiger Graphics,

Inc. v. Clemons, 88 So. 3d 908, 911 (Ala. Civ. App. 2012). It is not

"clearly inconsistent" for an employee to claim damages from a third

party on account of the aggravation of a work-related injury and to also

maintain a claim for workers' compensation medical benefits from an

employer for the same aggravation. Section 25-5-77 places primary

responsibility upon the employer to pay for reasonably necessary

medical treatment incurred by an injured employee on account of a

work-related injury. However, if the work-related injury occurs under

circumstances also creating a legal liability for damages on the part of a

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party other than the employer, the employee may seek civil damages

from the third party to cover the same medical expenses under Ala.

Code 1975, § 25-5-11(a). If the employee elects to pursue a third-party

recovery, the employee is not thereby precluded from also pursuing his

or her remedy against the employer for the same medical benefits. See

generally Ex parte Williams, 895 So. 2d 924, 927 (Ala. 2004). Rather,

in the event of a recovery against the third party, the employer is

entitled to subrogate to obtain reimbursement of its outlay for the

medical treatment. See § 25-5-11(a).

The evidence in the record shows that, following the 2018 motor-

vehicle accident, the employer continued to authorize Dr. Holt to treat

the employee for her aggravated condition. The employer, through the

Alabama Self-Insured Compensation Fund ("the Fund"), expended over

$85,000 to pay for the April 2019 surgery and the subsequent treatment

that the employee received. On February 1, 2022, the Fund intervened

in the third-party action to assert its subrogation rights under § 25-5-

11(a) against any recovery the employee might obtain from the third

parties. After the employee reached a confidential settlement in the

25
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third-party action, the employee paid the Fund $46,950.81 to satisfy its

subrogation interest in the settlement, which amount was determined

in accordance with Fitch v. Insurance Co. of North America, 408 So. 2d

1017 (Ala. Civ. App. 1981) (setting forth the formula for determining

the amount of any third-party recovery an employer retains under § 25-

5-11(e) following payment of attorney's fees).

After receiving the funds from the third-party recovery, the

employer filed its petition to be relieved of any further liability to the

employee for workers' compensation medical benefits, asserting that the

employee was judicially estopped from enforcing her rights to medical

care under the 2009 judgment. We agree with the trial court that the

defense of judicial estoppel does not apply in this case. In the third-

party action, the employee essentially claimed that the 2018 motor-

vehicle accident had created a legal liability on the part of the third

parties to cover the costs of the reasonably necessary medical treatment

that the employee had incurred and would incur for the aggravation of

the 2006 work-related injury. That claim does not conflict with her

claim against the employer to provide continuing medical care to her

26
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pursuant to the 2009 judgment and § 25-5-77 under the theory that the

employer remains liable pursuant to the successive-compensable-injury

test. The trial court properly rejected the employee's judicial-estoppel

defense, and we find no basis for reversing its judgment on this ground.

Conclusion

We conclude that the trial court did not err in denying the

employer's petition to be relieved of its liability to provide the employee

medical benefits pursuant to the 2009 judgment approving the parties'

workers' compensation settlement agreement. Therefore, we affirm the

trial court's judgment.

AFFIRMED.

Hanson, Fridy, and Lewis, JJ., concur.

Edwards, J., recuses herself.

27