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

2

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

and that the employee had recovered damages in a settlement with the 
CL-2024-0217

3

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
CL-2024-0217

4

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.
CL-2024-0217

5

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 motorvehicle 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 
CL-2024-0217

6

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 
CL-2024-0217

7

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 workrelated].' 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 
CL-2024-0217

8

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.'). 
CL-2024-0217

9

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.
CL-2024-0217

10

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-spinefusion 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.
CL-2024-0217

11

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.
CL-2024-0217

12

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 motorvehicle 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 
CL-2024-0217

13

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 
CL-2024-0217

14

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 motorvehicle 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 lumbarspine-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 
CL-2024-0217

15

"[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 motorvehicle 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 workrelated 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 
CL-2024-0217

16

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 workrelated 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 
CL-2024-0217

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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 
CL-2024-0217

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causal connection between the original, compensable injury and the 

1996 surgery by presenting evidence indicating that the 1989 workrelated 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."
CL-2024-0217

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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 motorvehicle 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 medicaltreatment 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 
CL-2024-0217

20

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 medicaltreatment 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 
CL-2024-0217

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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 motorvehicle 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 successive1

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 
CL-2024-0217

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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.
CL-2024-0217

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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 motorvehicle 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 
CL-2024-0217

24

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 
CL-2024-0217

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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 motorvehicle 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 
CL-2024-0217

26

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 thirdparty action, the employee essentially claimed that the 2018 motorvehicle 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 
CL-2024-0217

27

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.