NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
Beginning July 1, 2018, the maximum workers’ compensation payable will be raised to $865.00 per week and the minimum will be raised to $238.00 per week. https://labor.alabama.gov/docs/guides/wc_weeklywage.pdf
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This blog submission was prepared by Joshua G. Holden, 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 Holden by e-mailing him at jholden@fishnelson.com or by calling him directly at 205-332-1428.
The Alabama Court of Civil Appeals recently released its decision in the case ofIn re: Jeffrey Donaldson v. Sears Roebuck and Co. on May 11, 2018. It’s decision confirmed that when compensability is disputed, an employer cannot be compelled to provide medical treatment until after an evidentiary hearing on the issue is held, and compensability has been established. In rendering this decision, the Court upheld the principles outlined in it’s earlier decision,Ex parte Publix Super Markets, Inc., 963 So. 2d 654 (Ala. Civ. App. 2007).
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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.
“All great changes are preceded by chaos.” – Deepak Chopra
The Chaos
On May 8, 2017, a Jefferson County Circuit Court Judge issued an Order declaring the Alabama Workers’ Compensation Act to be unconstitutional. It was the Judge’s opinion that the statute placing a $220 weekly cap on permanent partial disability awards and the statute that places a 15% contingency fee cap on legal fees are both unconstitutional. Since the Judge found 2 statutes to be unconstitutional, it had the effect of declaring the entire Act unconstitutional due to a non-severability (all or none) statute. The issue was not appealed and so the constitutionality of the Act was never addressed by an appellate court. While chaos was avoided, the threat of having the entire system scrapped as unconstitutional was enough to put the wheels of change in motion.
The Change
In November of 2017, the Alabama State Bar appointed a Workers’ Compensation Task Force comprised of more than 20 attorneys representing the interests of employees, employers, insurers, self-insured employers, self-insurance funds, and the medical community. A state representative, a state senator, and a circuit judge also participated. Since its inception, the Task Force has been working diligently towards proposed changes that all parties can live with. The following is a list of some of the items that are currently being considered:
1. Regarding medical benefits, there would be presumption that the treatment is not related if no treatment for a fixed period. After a longer fixed period of no treatment, there would be a conclusive presumption it is not related. Except for catastrophic injuries, medical benefits would be closed after a set period in all cases. After adequate time for assessment from the accident date, there would be a presumption that the injury is not catastrophic.
2. Permanent and total weekly benefits would be terminated at a fixed age.
3. Employer would likely get the right to choose the pharmacy.
4. There would be more restrictive standards for pain management involving opioids.
5. Medications would not be sold by prescribing doctors.
6. The $220 cap would be adjusted to be a % of the state average weekly wage.
7. The 15% contingency fee would be raised, but modestly.
8. The possible use of a standardized medical form.
9. E-mail communications for claim filing would be allowed.
The goal is for all parties to agree on a proposed bill prior to the 2019 legislative session. We will continue to report as new information is learned.
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About the Author
This blog submission was prepared by Mike Fish, 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 Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.
On February 23, 2018 the Alabama Court of Civil Appeals released its opinion inEx Parte Alabama Gas Corporation denying Alagasco’s Petition for Writ of Mandamus wherein it sought relief from a particularly restrictive HIPAA Order entered by the trial court. It is quite a common occurrence for judges in workers’ compensation cases to enter a "HIPAA Order". The purpose of such an order is to ensure compliance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA), while still allowing parties to obtain protected health information relevant to the case. However, in the underlying case of Robert Smitherman v Alabama Gas Corporation, the trial court entered a HIPAA order that was a departure from the "standard" order typically entered. That order provided, among other things, that the parties and their attorneys were only allowed to obtain protected health information (namely medical records and bills) after issuing a subpoena to obtain them. It also limited the parties’ ability to obtain records pertaining to "personal injury", and prohibited any medical care provider from disclosing any protected health information other than that which directly pertained to the alleged work-related injury. The order further expressly prohibited Alagasco’s attorneys from engaging in anyex parte discussions, conferences, interviews, and/or telephonic or email communications with any of the plaintiff’s healthcare providers without first providing notice to the plaintiff’s attorney.
Alagasco filed a Motion to Amend the HIPAA order, asserting that it prohibited certain methods of discovery that are allowed in workers’ compensation cases. The trial court set Alagasco’s Motion to Amend for hearing on December 20, 2017. However, two days prior to that, Alagasco filed a Petition for Writ of Mandamus with the Alabama Court of Civil Appeals, and also filed a Motion to Stay proceedings at the trial court level, pending the Court of Appeals’ resolution of its mandamus petition. At the December 20, 2017 hearing, the trial court denied Alagasco’s Motion to Stay. However, the judge stated "I think the HIPAA Order, to some degree, is due to be amended...there may be some revision that I acknowledge needs to be made".
Alagasco argued to the Court of Appeals that the HIPAA Order prohibits any meaningful opportunity on the part of Alagasco to make timely determinations of reasonableness, necessity, and relatedness of recommended medical treatment. It also argued that the order precludes any opportunity to ensure that the plaintiff is complaint with reasonable requests to submit to medical treatment as provided in the Act. However, the Court of Appeals denied Alagasco’s petition without ruling on the merits of Alagasco’s arguments. The Court of Appeals held that Alagasco failed to demonstrate that the trial court clearly exceeded its discretion, or that Alagasco lacked another adequate remedy by appeal. Judge Terry Moore wrote a concurring opinion, stating that while he agreed that the Petition for Writ of Mandamus was due to be denied, it was primarily because the trial court had not explicitly refused to act on Alagasco’s Motion to Amend the HIPAA Order.
MY TWO CENTS
Mandamus is an "extraordinary remedy", and is only available when the trial court clearly exceeds its discretion or refuses to act when it is required to do so, and there is no other remedy available. In this case, Alagasco’s Petition for Writ may have been a little premature, since the trial judge indicated that he was considering amending the order. While the Court of Appeals declined to decide the issue on the merits, Alabama is clear how the Courtshould have decided it if the Petition for Writ had been proper. The trial court has broad, but not unfettered, discretion in discovery matters. § 25-5-81(f) of the Alabama Workers’ Compensation Act provides that the same discovery rules apply to workers’ compensation cases as apply to other civil cases, with a few minor limitations aimed at reducing costs. The Supreme Court has previously held that a defendant has a right to contact, and even haveex parte communications with, a plaintiff’s treating physicians. See, Romine v. Medicenters of America, Inc.,476 So. 2d 51 (Ala. 1985). In Romine, the Court held that "No party to litigation has anything resembling a proprietary right to any witness's evidence...Unless impeded by privilege, an adversary may inquire, in advance of trial, by any lawful manner to learn what any witness knows if other appropriate conditions the witness alone may impose are satisfied...". Id. The Supreme Court has also held that a case manager has the right to contact a medical provider by telephone to obtain reasonably necessary information, allowing the employer to fulfill its statutory obligation to provide and oversee the employee’s medical care.Ex Parte Smitherman Bros. Trucking Inc., 751 So. 2d 1232 (Ala. 1999).
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.
The NWCDN and Thomas A Robinson of LexisNexis recently partnered as Co-editors-in-chief to prepare the 2017 edition of “Workers’ Compensation Emerging Issues Analysis.” This is an excellent book which is an essential tool for attorneys, risk managers, and insurance professionals. The book is a reference guide to issues and cases as well as a 50 state survey of trends and developments. Approximately 40 NWCDN members contributed as authors. The book can be purchased athttp://www.lexisnexis.com/wcrisk or by calling 1-800-223-1940 (mention WCRisk to receive a discount).
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About the Author
This submission was prepared by Mike Fish, 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 Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.
Effective January 1, 2018, the mileage reimbursement rate for Alabama is 54.5 cents per mile, a one cent increase from 2017.
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About the Author
This blog submission was prepared by Ashleigh Hunnicutt, 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 Ashleigh by e-mailing her at ahunnicutt@fishnelson.com or by calling her directly at 205-271-7626.
Ombudsmen Patricia Fraley and Ted Roose plan to continue to keep regular office hours on the 2nd and 4th Tuesdays of every month from 9-12 and 1-4 for anyone who wants to submit a settlement for their review. There is no need to make an appointment for these times, just drop by and sign in. The new Career Center located at 3216 4th Avenue South (Birmingham).
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About the Author
This blog submission was prepared by Mike Fish, 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 Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.
As many of you know, an Alabama Circuit Judge recently issued an Order declaring the entire Alabama Workers’ Compensation Act unconstitutional. As a result, there have been many questions as to whether the constitutional issue would be appealed and what effect, if any; the ruling would have on other Alabama cases. The case in which the Order was issued recently settled which nullifies any chance of the constitutional issue reaching a higher court, at least in that case. As a result of this recent constitutional attack, the Alabama State Bar Association has appointed a task force to research the workers’ compensation laws of surrounding states in an effort to try to revise or amend certain provisions of the Alabama Workers’ Compensation Act. While we can expect that a focus will be put on the $220.00 cap on permanent partial disability and the 15% contingency fee, other parts of the Act will be examined as well.
We will continue to report as this issue progresses or stalls.
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ABOUT THE AUTHOR
This article was written by Joshua G. Holden, Esq., a member of Fish, Nelson & Holden, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden and his firm are members of the National Worker’s Compensation Defense Network (NWCDN). The NWCDN is a national network of reputable law firms organized to provide employers and insurers access to the highest quality of representation in workers’ compensation and related employer liability fields. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Mr. Holden by emailing him at jholden@fishnelson.com or calling him directly at 205-332-1428.
In the wake of the recent shooting in Las Vegas, numerous news reporting agencies have expressing shock and disbelief over California’s denial of workers’ compensation benefits to its police officers that were injured during the attack. Most people believe that police officers should be beneficiaries of workers’ compensation benefits when they place their lives on the line to protect and serve, even when working off duty. Unfortunately, extending benefits to these heroes is not that simple.
Without being deputized, an officer’s ability to act in any official capacity ends at the state line. Even federal law enforcement officers have to be deputized by a state before they are able to enforce that state’s law. This mechanism protects state sovereignty, and is also a Constitutional right that expressly reserves general "police power" to the state. Because they were not deputized, the California police officers were acting as private citizens.
Of note, it would not be handled any differently in Alabama. While Alabama does extend workers’ compensation benefits to police officers when they sustain injuries while acting in a law enforcement capacity (whether they are technically on duty or not), the reach of those benefits has not extended to officers outside the confines of the state. Thankfully, no Alabama officers were injured in Las Vegas.
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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.
The Supreme Court recently released its opinion in Louis Hall v. Bobby Saarinen and Chris Williams, in which it reversed the trial court’s denial of the co-employee defendants’ motion for summary judgment regarding the plaintiff’s personal injury claim. The plaintiff was injured by a saw while at work, and he sued his employer and two supervisory co-workers in tort. The employer was dismissed from the action pursuant to the Exclusivity Doctrine. In his amended complaint, the plaintiff alleged that the co-employees defendants “caused or allowed the removal of a guard from the saw” and “failed to install a safety guard provided for the saw” and “failed to replace the unguarded saw with a new guarded saw.”
The saw (Kalamazoo brand) that was used by the employer had a manufacturer-installed guard. At some point prior to the incident, the plaintiff expressed concern to his employer that the guard was not adequate, and so at the plaintiff’s request, the employer installed an additional guard to better shield the saw when it was lifted up. Thereafter, the employer purchased a new saw (DeWalt brand), but because they were in their busy season, the employer had not yet installed the new saw for use. The question at issue before the Supreme Court was whether the presence of another saw on the premises, that had not yet been installed and was not from the same manufacturer, constituted the removal of a safety device under Ala. Code 25-5-11(c)(2).
The Court found that there was no evidence indicating that the co-employees failed to install a guard provided by the manufacturer or that they failed to maintain or repair the guard provided. Although an additional safety guard was installed on the original saw, that guard was not an “alternative safety device” because the original guard was not by-passed. The Court concluded that the failure to install another, presumably safer, saw from a different manufacturer that was present on the premises but that had not been put into operation is not the equivalent of the removal of a safety device, and thus does not constitute willful misconduct under Ala. Code 25-5-11(c)(2).
The Court expressly declined to give an opinion as to whether the presence of a new (presumably safer) machine on the premises made by the same manufacturer as the machine that injured an employee would constitute willful misconduct by a co-employee.
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About the Author
This blog submission was prepared by Mary Stewart Nelson Thompson, 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 Mary Stewart Nelson Thompson by e-mailing her at msnelson@fishnelson.com or by calling her directly at 205-332-3430.