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Burned worker can proceed with negligence claim against employer


An iron worker severely injured on the job may proceed with his claims of negligence and emotional distress claims against his employer for taking him to a doctor’s office and pharmacy over-the-counter burn cream instead of calling a hospital to transport him to a burn unit. 

In Ex Parte Burkes Mechanical Inc., the Supreme Court of Alabama in Montgomery denied the employer’s petition for mandamus on Friday in a 7-2 decision, holding that the employer failed to present compelling evidence that the trial court erred in denying its motion to dismiss the worker’s claims.

Alexsie McCoy worked as an iron worker for Brent, Alabama-based Burkes Mechanical Inc. On April 6, 2018, Mr. McCoy and two other iron workers were using welding torches to cut through heavy metal plates in a confined space in a mill owned by International Paper Co. in Pine Hill, Alabama. When a worker employed by another company broke a welding line, it ignited the air and Mr. McCoy sustained severe burn injuries. Mr. McCoy claimed that Burkes failed to notify International Paper, which had an emergency medical response team on site. Rather, another co-worker sprayed Mr. McCoy with a substance to treat his injury, refused to cut off his shirt, and transported him by private vehicle to a doctor’s office. The doctor refused to treat him on the basis that his injuries were too severe and advised the worker to take Mr. McCoy to the hospital. The worker stopped by a pharmacy to get Mr. McCoy some over-the-counter burn cream and drove him to the local hospital, which then transported him by ambulance to a burn unit 80 miles away at the University of South Alabama Medical Center in Mobile, where he remained hospitalized for a week.

In September 2018, Mr. McCoy sued Burkes for negligence, wantonness and tort-of-outrage, also known as intentional infliction of emotional distress, for failing to furnish appropriate medical care and provide reasonable access to qualified health care professionals after his accident. Burkes moved to dismiss his claims of negligence and wantonness on the basis that they were barred by the exclusivity provisions of the Alabama Workers Compensation Act and the IIED claim on the basis that he failed to plead sufficient facts to proceed. The Wilcox Circuit Court in Camden, Alabama, denied Burkes’ motion to dismiss and the company filed a petition for the writ of mandamus.

The Supreme Court of Alabama denied Burkes’ petition, holding that Mr. McCoy could proceed with his complaint against his employer, holding that the negligence and wantonness claims were based on conduct and the resulting injuries that occurred independently after the workplace accident, and therefore not barred by the exclusive remedy provision of the Act. The court held that Mr. McCoy presented evidence that his claims arose from the “aggravated pain, suffering and mental anguish caused by Burkes’ failure to secure appropriate medical care” and that Burkes failed to meet its burden of demonstrating that the trial court had an “imperative duty” to grant its motion to dismiss.

Two justices concurred with the majority’s opinion to deny the mandamus petition regarding Mr. McCoy’s IIED claims, but held that his allegations of negligence and wantonness should be barred by the exclusive remedy provision of the Act because they allegedly took place in the immediate aftermath of an accident that arose out of his employment.




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