The Alabama Court of Civil Appeals recently released an opinion dealing with venue statutes and their applicability to claims sought under the Alabama Worker’s Compensation Act. In the case ofEx parte Associated General Contractors Workers' Compensation Self-Insurers Fund, Alabama Branch, and Good Hope Contracting, Inc. (In re:Associated General Contractors Workers' Compensation Self-Insurers Fund, Alabama Branch v. Lynn Harding), the Court held that the §6-3-7, Ala.Code 1975, was the proper statute to govern venue for worker’s compensation lawsuits, regardless of the initial filer.

Associated General Contractors Workers' Compensation Self-Insurers Fund, Alabama Branch ("AGC") filed a lawsuit against Lynn Harding ("Harding"), seeking a declaratory judgment under the Alabama Worker’s Compensation Act.

Harding filed a Motion to Dismiss for Improper Venue, or in the Alternative, Motion to Transfer Venue, relying on the venue statute governing actions filed against an individual, §6-3-2, Ala.Code 1975. Plaintiffs responded to Harding’s motion, relying on the Alabama Workers’ Compensation Act and §6-3-7, Ala.Code 1975, the venue statute that governs where a corporation can be sued. The trial court granted Harding’s motion, and ordered that the case be transferred. Plaintiffs filed a Petition for Writ of Mandamus seeking relief from the Order.

The Alabama Court of Civil Appeals granted the petition. The rationale being that per the Worker’s Compensation Act, venue is proper if filed where a tort action would be properly filed. Case law provides that venue is proper where an employee’s grievance against his employer would be heard. Ex parte Adams. The proper venue statute to govern where an individual can sue his employer is §6-3-7, Ala.Code 1975.

In sum, regardless of who files the initial Complaint in an Alabama Worker’s Compensation lawsuit, venue is proper where an employee can properly maintain an action against the employer.

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This blog submission was prepared by Karen Cleveland, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Cleveland by e-mailing her at kcleveland@fishnelson.com or by calling her directly at 205-332-1599.

Two Microsoft employees have sued their employer alleging that they suffer from post-traumatic stress disorder because their job required them to watch horrific internet videos portraying brutality, murder, beastiality, and even child pornography. Both men filed lawsuits in King County, Washington, seeking damages for negligence, disability discrimination, and violations of the Consumer Protection Act. The men allege that Microsoft involuntarily transferred them to its online safety program, where they reviewed online videos to identify and report illegal content. Their lawsuits are currently ongoing at this time, and it remains to be seen how they will be decided under Washington law. However, under Alabama law, it is clear that the employees would have no remedy upon which to base an award of damages for their post-traumatic stress.

First, §§25-5-53 and 25-5-54 of the Alabama Workers' Compensation Act provide that workers' compensation benefits are the employee's sole legal remedy for injuries occurring in and arising out of the employment. Additionally, mental injuries such as post-traumatic stress disorder are only compensable if accompanied by physical injury under Alabama law. Therefore, as horrible as the their jobs must have been, they would not have any grounds upon which to recover damages if they worked in Alabama.

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About the Author

This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.

2017 PENNSYLVANIA WORKERS’ COMPENSATION RATE CHANGES

By Kevin L. Connors, Esquire

Happy New Year!

To Employers and Insurers responsible for workers’ compensation benefits in Pennsylvania, the Pennsylvania Office of Adjudication has issued the controlling compensation benefit rates for 2017.

The maximum compensation benefit payable rate for 2017 is $995.00 per week, yielding $51,740.00 per year in temporary total disability benefits.

The $50,000.00 mark was passed with the maximum rate of $978.00 per week in 2016.

Average weekly wages between $1,492.50 and $746.26 will be adjusted on a 2/3^rd%basis, for purposes of yielding the temporary total disability benefit.

Average weekly wages that range between $746.25 and $552.78 will result in the temporary total disability benefit rate being set at $497.50.

An average weekly wage of $552.77 or less per week will result in the temporary total disability benefit rate being calculated based upon a 90% basis.

An average weekly wage of $552.77 would, therefore, yield a temporary total disability benefit rate of $497.49, yielding yearly temporary total disability benefits of $25,869.63.

Kindly contact our office with any questions that you might have regarding any calculations of a pre-injury average weekly wage, typically requiring calculation of wages only for the 52 weeks preceding the date of injury, as well as any questions that you might have in terms of the applicable temporary total or temporary partial disability benefits rates.

ConnorsO’Dell LLP

Trust us, we just get it!  It is trust well spent!

We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout  Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.

Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.

 In  Drug Dealer, M.D., Anna Lembke, a psychiatrist and chief of addiction medicine at Stanford University’s medical school, points the finger at over prescribing physicians and a subculture of the addicted, in her view from the trenches in the war on opioid drug abuse in America.   While there is plenty of blame to go around in the medical community, from the physicians and the myriad problems in the American health care system to Big Pharma, Lembke steps into the often off-limits area of patient accountability.  Lembke writes of patients “who visit a doctor’s office not to recover from illness but to be validated in their identity as a person with an illness.”  She describes the patients’ drug-seeking behavior by user type.  “Senators” will “filibuster” the doctor for the length of the visit and then make a last-minute plea for narcotics, giving the doctor little time to object.  “Exhibitionists” writhe in pain and exhibits extreme pain behaviors.  The “Dynamic Duo” is the patient and crying mother/wife/girlfriend presenting a team too pitiful to refuse.    This short, 172 page book, offers an interesting perspective into a problem all too familiar to the workers’ compensation community.

PBMs are pharmacy benefit managers.  What do they do, you ask?  They negotiate drug prices, build networks of pharmacies and build formularies.  The largest, Express Scripts, Inc., reported $102 billion in revenue in 2015 (that’s almost more than Pfizer, Coca-Cola and McDonalds, combined!).   Formularies are the primary tool in the PBM arsenal.  Drug companies offer PBMs sizeable rebates to make sure their drugs can stay on the formularies.  Last year, AstraZeneca paid the government $7.9 million to settle allegations that it paid its PBM “kickbacks” in order to stay on the formulary (and ostensibly to keep competing drugs off the formulary).  The drug manufacturers, in order to keep up with the rebates and keep their profit margins up, pass the cost on to the consumer. The lack of transparency in the rebate negotiation process and drug pricing practices is a continuing frustration to insurance carriers and consumers alike.    Numerous factors combine to keep consumers in the dark as the pricing is derived from a combination of premiums, deductibles, formulary availability and pricing, network requirements, coverage and individual price points for a given drug.  Full transparency would allow consumers a bigger voice in the drug pricing equation.   Such transparency is unlikely, however, barring regulatory intervention.

A few Appeals Panel cases of interest in the past couple of months include:

Finality

APD 161628 (decided 10/4/16) - the Appeals Panel analyzed finality in the context of Rule 130.102(h), which provides that if there is no pending dispute regarding the date of MMI or the impairment rating prior to the expiration of the 1st quarter of SIBs, the date of MMI and IR shall be binding and final.  In that case, the first certification was rendered on 9/11/13.  A designated doctor was requested on 10/6/13.  On 10/18/13, a designated doctor was appointed, and saw the claimant on 11/7/13.  The designated doctor certified MMI on 9/4/13 with a 15% impairment rating.  Claimant subsequently applied for SIBs for the 2nd, 3rd and 4th quarters.    The Appeals Panel clarified that it is Rule 130.102(h) that controlled in this case, not Rule 130.12 (which the hearing officer cited).  The Appeals Panel explained that the preamble to the relevant portion of Rule 130.102 makes it clear that the finality provisions of that rule do not apply to any situation where a party has raised a dispute prior to the first quarter of SIBs, and the appointment of a designated doctor does not resolve a dispute of the MMI certification or assigned impairment rating.

APD 161503 (decided 11/7/16) - the hearing officer erred in holding the first certification of MMI/IR was not final based on compelling evidence of a previously undiagnosed condition.  A flight attendant injured her left wrist, hand and forearm when she was flung around the cabin during an episode of turbulence.   She was diagnosed with left wrist and hand contusions and ulnar radicular pain.  A left wrist sprain was accepted by the Carrier.  Her treating doctor determined that she reached MMI with no permanent impairment.  The hearing officer determined that the injury also included left ulnar nerve entrapment, and the Appeals Panel agreed.  The Appeals Panel disagreed, however, the left ulnar nerve entrapment was a previously undiagnosed medication condition that justified an exception to the finality rule.  The Appeals Panel cited evidence that the claimant was diagnosed with early with ulnar nerve radicular pain, and the treating doctor who rendered the first certification had continuously diagnosed her with a left ulnar injury.  Reversed and rendered on the issues of finality and MMI/IR.

Expert Medical Evidence Required - Causation 

APD 161780 (decided 10/18/16) - the Appeals Panel reversed a hearing officer decision that the compensable injury included lumbar radiculitis where there were no medical records that explained how the injury caused that condition, and requiring expert medical evidence to prove causation of lumbar radiculitis.
 
Treatment After MMI Can’t Be Considered in Impairment Rating

APD 161877 (decided 11/2/16) - the hearing officer erred in adopting the designated doctor’s certification of MMI/IR as the designated doctor included a rating for a surgical procedure that occurred after the statutory date of MMI, which was determined to be the proper MMI date by the Appeals Panel. 

Course and Scope - Deviation from Employment

APD 161985 (decided 11/7/16) - the hearing officer erred in holding the claimant was not in the course and scope of his employment when he was involved in a motor vehicle accident.   The claimant was driving to Discount Tire to repair the tires on his personal truck in preparation for a 10-hour drive to a location at the direction of his employer.  Claimant was paid $30.00 per day for the use of his truck and it was company policy to reimburse foremen and operators for use of their personal vehicles.  Claimant was reimbursed each months regardless of whether or not the truck needed maintenance.  The employer directed claimant to choose a crew to travel with him to Baytown for a safety meeting.  ON the date of injury he was driving to get his tires repaired before traveling to Baytown. 

DWC is losing two more Hearing Officers.  John Bell is leaving the Dallas Field Office and Marilyn Allen is leaving the Houston West Field Office.  Meanwhile, in Ft. Worth, long-time Benefit Review Officer, Larry Beckham has retired and in San Antonio, Mery-Margaret Cisneros has moved from BRO to OIEC to manage the ombudsmen in San Antonio and Corpus Christi.  The new year promises to be interesting.  

On 12/1/16, the DWC published its 2016 Biennial Report. The DWC reports significant improvements since the 2005 HB legislative reforms including lower claims costs and premiums, higher employer participation rates, better access to care and return to work outcomes and fewer disputes. While most of the signposts indicate improvement, according to DWC, designated doctor disputes remain high.  The DWC made several legislative recommendations including revising certain Labor Code provisions to allow for electronic transmission or information rather than requiring certified mail or personal deliver in certain circumstances.  The DWC will once again attempt to make changes to the LIBs statute and the archaic language of “incurable insanity” and “imbecility” currently used to describe the degree of a brain injury that qualifies an injured employee to be eligible for LIBs.  The entire 2016 Biennial Report can be found at:http://www.tdi.texas.gov/reports/dwc/documents/2016dwcbienlrpt.pdf. 

115 carriers participated in the 2016 PBO Audit.  42 were High Performers, 70 were Average Performers and 3 were designated as Poor Performers.  Performance measures included timely payment of initial TIBs, timely submission of initial payment data through EDI, timely processing of initial medical bills, timely processing of requests for reconsideration, and timely submission of medical bill processing data through EDI.  A detailed report of the PBO results is available on the DWC website athttp://www.tdi.texas.gov/wc/pbo/pboresults.html#icrslts.