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.
The Alabama Workers' Comp Blawg is 10 years old! We would like to take this time to thank all of our readers who have helped to makehttp://www.alabamaworkerscompblawg.com a go to reference for Alabama workers' compensation! We would also like to take this opportunity to wish a happy birthday to Scott Baio, Joan Jett, Bilbo Baggins, and Tommy Lasorda. Next year we need to have a group party!
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
The Alabama Court of Civil Appeals recently released its opinion in Ex parteGarrison Trucking Co., wherein it considered the issue of venue.
The Old Rules
In venue disputes, your residence means your permanent home: the place you plan on returning to after an extended absence, as opposed to a place of temporary residence, such as a beach house. In determining where an Alabama employee resides, the Court looks for evidence of the employee’s intent. Typical things that have been considered indicative of where an employee intends to reside are their own representations of their lawful residence on documents, such as where they get their mail and the address listed on bills.
There is one consideration that has always been treated as the smoking gun: the county where someone registers to vote. In the past, registering to vote in a certain county has been considered to answer the question of where someone resides. Put simply, if you register to vote in Mobile County, you reside in Mobile County.
The New Rules
In Ex parte Garrison Trucking Co., the employee claimed he resided in Washington County on the date of the accident and the employer claimed the employee resided in Mobile County. The Court concluded the evidence indicated the employee lived in Washington County.
The employer presented evidence showing the employee received his mail at the Mobile County address, listed the Mobile County address as his residence on multiple documents, including his job application and medical records, he received medical treatment in Mobile County for his alleged work related injury, and evidence that he registered to vote in Mobile County in 2016. The employer’s evidence spanned from March 2014 through May 2016, which presented an essentially uninterrupted timeline.
The employee claimed that he had lived in Washington County for the past 15 years. However, out of all of the documents he submitted, he did not submit any documents that showed he resided in Washington County in 2014. Rather, the only evidence he submitted were documents from 2011, 2013, and 2015. Furthermore, his evidence consisted of two pistol permits, his drivers’ licenses, a vehicle registration, loan documents, and a Transportation Worker Identification Credential card thatexpired on April 20, 2014. The employee also told the Court he became one of the owners of the Mobile County address when his mother died in 2013, but he did not submit any other evidence showing he owned the property. Considering he claimed it was his residence for the past 15 years, it should not have been difficult to obtain better evidence.
After reviewing the evidence, the Court concluded “other than documents listing an address,no evidence was presented to show that [the employee] resided or intended to reside at the [Mobile County] address.” The Court discounted evidence that has historically been regarded as sufficient for purposes of establishing a person’s residence or a person’s intent to reside (i.e. county of voter registration).
In support of its finding, the Court stated that “there was no evidence from neighbors indicating that [the employee] appeared to be living in [Mobile County] or that he was involved in church or community activities in [Mobile County].”
Conclusion
According to the Alabama Court of Civil Appeals, to prove where an employee resides, the employer has to prove the employee actually lives there and that the employee is an active member of that community. Voter registration is no longer a determinative factor. If the employee is a hermit that merely owns property in another county, or has any recent connections to another county, you may be out of luck.
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This article was written by Ashleigh Hunnicutt, an attorney at Fish Nelson & Holden, LLC in Birmingham, Alabama. Fish Nelson & Holden is dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Ashleigh and her firm are members of The National Workers’ Compensation Defense Network. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact Ashleigh atahunnicutt@fishnelson.com or (205) 271-7626.
The Alabama Court of Civil Appeals recently released its opinion in Kirby v Jacks Family Restaurants, LP.In that case, the plaintiff filed claims for workers’ compensation benefits, retaliatory discharge, and the tort of outrage against Jacks, its insurance fund, its third party administrator, and its case management company. All of the defendants filed Motions to Dismiss the outrage claim and the trial court granted them. The trial court further certified the judgment on the dismissal of the outrage claims to be a final judgment for purposes of appeal. However, the Court of Appeals held that even though the Order contained language certifying it as final, such certification was not appropriate in the case because the plaintiff’s workers’ compensation and retaliatory discharge claims were so intertwined with the outrage claims. The Court of Appeals noted that the plaintiff relied on facts and circumstances surrounding her injury and her termination to support her claim for the tort of outrage, and that she would rely on the same set of underlying facts in her remaining claims. The Court of Appeals held that it is improper for the trial court to certify a dismissal as "final" when at least some of the issues presented in the claim still pending in the trial court are the same as the issues presented in the claims addressed in the judgment, and repeated appellate review of the same underlying facts would be a probability in the case. Therefore, the Court of Appeals dismissed the plaintiff’s appeal as having been taken from a non-final judgment.
My Two Cents:
When tort claims accompany a workers’ compensation claim, it is common for the trial court to either sever the claims completely and assign new case numbers or keep the claims together and hold separate trials. When the trial court merely orders separate trials, the claims remain joined in one civil action, and any order disposing of anything less than all of the claims and all of the parties will generally not be considered a final order for purposes of appeal. The trial court may include language in an order certifying the order as final (as in this case), but sometimes, that is still insufficient to render an order final for purposes of appeal. On the other hand, if a tort claim is severed from a related workers’ compensation case (assigned a separate civil action number), an order granting summary judgment would be a final order for purposes of appeal. Therefore, it is often wise to ask the trial court to sever an outrage claim, rather than only asking for separate trials.
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 Supreme Court recently released its opinion in Foster v North American Bus Industries, Inc. in which it reversed the trial court’s summary judgment in favor of the employer on a retaliatory discharge claim. The employer, NABI is a bus manufacturer in Anniston that has what it refers to as a "no fault, points based attendance and absenteeism policy". Under the policy, NABI assigns points to each absence or tardiness. Foster worked for NABI as a Harness Technician and alleged that she sustained an injury in July 2012. Foster went to the hospital and reported the alleged workplace injury and NABI told the representative at the hospital that Foster’s injury was not work-related. Foster was evaluated and treated at the hospital and given a work/school absence form excusing her from work. Foster missed some time from work and was subsequently terminated for violation of NABI’s absenteeism policy. Foster then filed an action for retaliatory discharge against NABI. NABI moved for summary judgment, which the trial court granted, and Foster appealed.
On appeal, the Supreme Court found that Foster had presented a prima facie case of retaliatory discharge, and that the burden of proof should have been shifted to NABI to present evidence that Foster’s employment was terminated for a legitimate reason. NABI argued that its absenteeism policy was followed in all instances, whether the employee had a work-related injury or not. NABI offered evidence that it had terminated 44 employees for violating the same policy and that it had not made any exceptions to this policy. However, the Supreme Court noted that there was evidence before the trial court that NABI had made an exception to the policy on prior occasions and that those exceptions, which dealt with the method of delivering a medical excuse note, created a genuine issue of material fact that precluded summary judgment. Specifically, the Supreme Court found that Foster introduced sufficient rebuttal evidence in support of her position that NABI’s stated reason for terminating her employment was pretextual.
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 Alabama Court of Civil Appeals recently released its opinion in Frederick Roosevelt Dunning, Jr. & Janice Dunning Sandifer v. Lula Mayhew, in which it determined Roosevelt and Lula were married at common law. Although the Alabama legislature abolished common law marriage in Alabama effective January 1, 2017, any common law marriage that existed prior to that date is still valid. The Court of Appeals reiterated that a common law marriage requires proof by clear and convincing evidence of capacity to marry; a present mutual agreement to permanently enter into a marital relationship to the exclusion of all other relationships; public recognition of the relationship as a marriage; a public assumption of the marital duties; and cohabitation. The Court of Appeals further stated that while there was conflicting evidence presented at trial concerning the second two elements, the trial court is tasked with making credibility determinations and resolving conflicting evidence and that the appellate courts may not disturb the trial court’s findings in that regard as long as they are supported by substantial evidence.
My Two Cents:
The issue of common law marriage comes up frequently in workers’ compensation death benefits cases. Interestingly, as this case points out, a party must prove a common law marriage by clear and convincing evidence, whereas the standard to recover workers’ compensation benefits is generally a preponderance of the evidence. Nevertheless, an appellate court will not re-weigh the evidence on appeal, so the trial court’s findings of fact are generally final. The trial judge is in the unique position of being able to assess the credibility of the witnesses, and the appeals courts cannot substitute their own judgment in that regard.
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.
On August 1, 2016, a new federal law, The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, went into effect which required all federal agencies to adjust their monetary penalties to account for inflation. One such agency, the Occupational Health & Safety Administration (OSHA), increased its maximum penalty for "serious", "other than serious", and posting requirements violations to $12,675 per violation, and its maximum penalty for willful or repeated violations to $126,749 per violation. For the last year, all citations issued by OSHA have been subject to the "new" higher penalties. However, it seems that OSHA may have put the cart ahead of the horse, and as a result is charging violators more than the law actually allows.
OSHA, like all federal agencies, gets its rule making and enforcement authority from its authorizing statute, and that authorizing statute generally supercedes subsequent laws like The Federal Penalties Inflation Adjustment Act Improvements Act. The problem for OSHA is that the Occupational Safety & Health Act of 1970 (OSH Act) has not been amended to allow for the higher penalties. Under the OSH Act, OSHA cannot issue penalties higher than the levels set way back in 1990, which are up to $7,000 for "serious" violations, and up to $70,000 for repeat/willful violations.
My Two Cents:
The discrepancy between the statutory caps under the OSH Act and the current fine levels creates a situation that is ripe for litigation. Employers are likely on the winning side of that battle, especially under the current, more "business friendly" federal administration. It is probably only a matter of time before a court strikes down the "new" penalties as unauthorized. When that happens, OSHA may very well have to start issuing refunds.
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 matters. If you have questions about this article or OSHA citations in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.
On July 21, 2017, The Alabama Court of Civil Appeals released its opinion in Laura Wyatt v. Baptist Health System, Inc. In Wyatt, the employee was a patient-care tech that experienced a sharp pain in her back when she was lifting and twisting. The pain was followed by a burning sensation and pain down into her legs and toes. She was diagnosed with transverse myelitis and continues to experience weakness in her legs, trouble with walking and balance, and has issues with her bladder and bowels.
The employee filed a workers’ compensation lawsuit in Jefferson County and it subsequently transferred to Shelby County upon motion of the employer.
At trial, the testimony of three doctors was received into evidence. Dr. Meador, who examined the employee, was of the opinion that the employee likely impinged an artery in her lower back during the act of lifting and twisting which resulted in a spinal cord stroke which, in turn, lead to her condition. Drs. Kirschberg and Counce conducted record reviews and offered testimony that rebutted the opinions of Dr. Meador. Dr. Kirschberg testified that a twisting motion would not cause the employee’s condition. Dr. Counce, who testified live in court, opined that the employee’s condition was not caused by trauma of by work activities. She further testified that the employee did not suffer from an impingement. Rather, it was her opinion that the condition and symptoms were more likely related to a severe vitamin B-12 deficiency.
Based on the evidence at trial, the trial judge was of the opinion that the testimony of Drs. Kirschberg and Counce was more well-reasoned, medically sound, and persuasive. As such, judgment was rendered in favor of the employer. The employee timely appealed the decision.
Among the reasons for appeal, the employee noted that the trial court erred in failing to resolve reasonable doubts in the evidence in favor of the employee. The Court of Civil Appeals noted that the requirement of liberally construing the construction of the Workers’ Compensation Act to effectuate its beneficent purposes had nothing to do with the assignment of weight to the evidence. Rather, judges in workers’ compensation matters should consider the evidence and assign weight as they would in any other civil matter. Since the trial judge obviously assigned much more weight to the testimony of Drs. Kirschberg and Counce, it was clear that substantial evidence supported the judge’s ruling in favor of the employer. As such, the judgment was affirmed.
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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 July 21, 2017, the Alabama Court of Civil Appeals released its opinion in Felisha Bailey v. Jacksonville Health and Rehabilitation Center. In Bailey, the employee was a certified nursing assistant who sued her employer and the third party administrator (TPA) handling her workers’ compensation claim. Count One of her complaint was against her employer for workers’ compensation benefits related to her claim of contracting scabies and the related psychological issues. Count Two was against the TPA for outrageous conduct. Count Two was subsequently dismissed upon motion of the TPA.
Rather than proceed to trial on the workers’ compensation issues, the employer elected to first file a motion for summary judgment. In support of the motion, the employer offered evidence which demonstrated that the employee never contracted scabies. Rather, the employee more likely suffered from delusional parasitosis whish is a disorder that causes a person to believe that they are infested by parasites. The evidence in support of this theory was compelling and the judge granted the motion for summary judgment. The employee timely filed her appeal.
On appeal, the employee pointed out that the trial judge improperly weighed the evidence in granting the employer’s motion for summary judgment. Since there was some evidence that could arguably support the employee’s theory, the Court of Civil Appeals agreed with the employee that granting summary judgment was improper. As such, the judgment was reversed and remanded for further proceedings.
My Two Cents:
Unless there is evidence introduced at trial that is not referenced in the Court’s opinion, the time and expense associated with appealing the trial court’s decision is probably all for naught.
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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.
Beginning July 1, 2017, the maximum workers’ compensation payable in Alabama was raised to $843.00 per week and the minimum was raised to $232.00 per week.
Ombudsmen Patricia Fraley and Ted Roose are now located in the new Career Center located at 3216 4th Avenue South (Birmingham). Because of this new location they are able to handle Benefit Review Conferences at their office. They plan to keep regular office hours on the 2nd and 4th Tuesdays of the 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 one of them will be there. The dates for July are the 11th and 25th, from 9-12 and 1-4.
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.