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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)
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before the opinion is printed in Southern Reporter.

ALABAMA COURT OF CIVI L APPEAL S

OCTOBER TERM, 2008-2009

2080029


Christopher S. Hatch

V.

NTW Incorporated d/b/a National Tire and Battery Company


Appeal from Jefferson Circuit Court
(CV-06-6255)

THOMAS, Judge.

Christopher S. Hatch worked for NTW Incorporated d/b/a

National Tire and Battery Company ("NTW") as service manager

of NTW's tire store located on Highway 280 in Birmingham. In

October 2005, Hatch injured his back while unloading a tire

truck and stacking tires. Hatch reported the injury to the
store manager, Jerry LeDoux, who was also unloading and
stacking tires. Hatch saw his personal physician about the
pain in his back at first, but he did file a report of injury
and was later assigned an authorized treating physician.
Although he was in pain and was unable to perform many of his
typical duties. Hatch continued to report to work at the
store. LeDoux accommodated Hatch by allowing Hatch to work at
the front counter and deal with customers instead of
performing shop duties that involved lifting or overhead work.

In December 2005, Garry Fox, NTW s area director for
Alabama and Tennessee stores, visited the store. Fox noticed
that Hatch was having difficulty moving around the store to
perform his duties. According to Fox, NTW did not have a
light-duty position it could provide to injured employees.
Fox told both LeDoux and Hatch that Hatch could not be on
light duty and that he would need to take leave and get
better.

Hatch's last day at the store was December 12, 2005.
After that date. Hatch continued to seek medical treatment and
was in contact with NTW s workers' compensation insurance

carrier. However, Hatch did not contact LeDoux about his
recovery progress. Hatch said that he had contacted another
NTW store manager. Randy Sparks, about his progress, but
Sparks was not Hatch's supervisor. LeDoux testified that he
had tried to contact Hatch several times, leaving messages for
him on both his home telephone and his cellular telephone.
LeDoux said that he had explained to Fox, when questioned in
May 2006, that he had not heard from Hatch and that he had
tried to contact Hatch several times to no avail.

Hatch did not recover from his back injury as he had
expected. He continued to see his initial authorized
physician. Dr. Charles Clark, for several months. Then Dr.
Clark referred Hatch to Dr. Robert B. Poczatek, who, after
treating Hatch for a time, placed Hatch at maximum medical
improvement ("MMI") on May 16, 2006. Because Hatch did not
believe that he could not improve with different treatments,
he disputed Dr. Poczatek's decision that he was at MMI ;
pursuant to

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