State News : Alabama

A lot of buzz was recently created when a Circuit Court Judge in Jefferson County entered an interlocutory order declaring the Alabama Workers’ Compensation Act unconstitutional. The ruling put a bright spotlight on the fact that the Act has not seen substantial change since 1992. Over the years, there have been numerous bills introduced in the legislature that would amend the Act in regard to a variety of issues. However, with few exceptions, most of those bills died in committee because they were introduced by one interest group or the other, and not by a consensus of employers, insurers, and labor representatives.

In 1992, it took cooperation and input between all interested parties to bring about substantial, and much-needed change. Most people involved with the workers’ compensation system on a day-to-day basis agree that is what needs to happen again. However, nobody seems to be able to agree on what is necessary to get the ball rolling. When Utah was recently faced with similar issues, its state legislature created a "workgroup" aimed at bringing the parties together to institute change. A similar approach may be the best place to start, because it addresses each of the various concerns that proposed bills have attempted to address over the last few years. Here is a proposed Alabama version of the Utah statute which created the workgroup.

Workers’ Compensation Workgroup– Creation– Membership–Compensation–Duties–Report

(Proposed)

(1) There is created the Workers’ Compensation Workgroup within the Alabama Department of Labor, consisting of the following members:

(a) the Director of Workers’ Compensation, or the Director’s designee;

(b) one member of the Senate, appointed by the President or current presiding officer of the Senate, and one member of the House, appointed by the Speaker or current presiding officer of the House;

(c) four representatives of the worker’s compensation insurance industry:

(i) two of whom are practicing attorneys with significant experience with workers’ compensation claims in the state of Alabama; and,

(ii) two of whom represent a commercial insurer with significant experience in workers’ compensation claims in the state of Alabama or the self-insured industry; and

(d) four representatives of the labor side of workers’ compensation, appointed by the chair:

(i) at least two of whom are practicing attorneys with significant experience with Alabama workers’ compensation law.

(2) The chair may appoint one or more individuals with an interest in workers’ compensation to serve as ex officio, non-voting members of the Workgroup.

(3) The Director of the Workers’ Compensation Division or the Director’s designee shall be the Chair of the Workgroup.

(4) (a) A majority of the members of the Workgroup constitutes a quorum.

(b) The action of a majority of a quorum constitutes the action of the Workgroup.

(c) In the case of a tie vote, the Chair and the member of the Senate appointed under Subsection (1)(b) shall break the tie.

(5) (a) The salary and expenses of each member of the Workgroup who is a legislator shall be paid in accordance with proper Alabama legislative procedure outlining compensation for such.

(b) A member of the Workgroup who is not a legislator may not receive compensation, benefits, per diem, or travel expenses for the member’s service on the Workgroup.

(6) The Alabama Department of Labor shall provide staff support to the Workgroup.

(7) The Workgroup shall review and make recommendations on the following issues:

(a) the process for determining the amount of weekly payments in Permanent Partial Disability (PPD) cases, including but not limited to, the implementation of a weekly cap on payment of permanent partial disability (PPD) benefits to injured employees;

(b) the award of attorney fees in workers’ compensation cases, including but not limited to, the implementation of a cap on contingency fees;

(c) the totality of employer liability regarding all permanent disability payments, including but not limited to, the length of the period(s) in which payments must be paid, and any factors that would qualify the cessation of such payments;

(d) the totality of employer liability for medical payments to injured employees who have stopped receiving claim-relevant treatment for a fixed period of time;

(e) the outlines for determining criminality of worker’s compensation fraud, and appropriate procedure in achieving just and equitable remuneration for all victims of such fraud;

(f) the qualifying factors necessary to substantiate workers’ compensation claims for psychological injuries;

(g) the proper procedures for employee drug and alcohol testing and the consequences of failed drug and/or alcohol tests;

(h) any additional issues that the Workgroup:

(i) determines to be an important issue related to worker’s compensation; and,

(ii) decides to review.

(8). The Workgroup shall present a final report on the items described in Subsection (7), including any legislative recommendations, to an appropriate committee in the Alabama Senate within one hundred and eighty (180) calendar days of the formation of the Workgroup.

Our Two Cents

As it is in the other 49 states, the Alabama Workers’ Compensation Act has always been known as the great compromise or grand bargain between employers and employees. Therefore it is unreasonable to think that all concerned parties will get everything they want. However, the statutory creation of a workgroup would likely yield some positive changes that all concerned could live with.

About the Authors

This article was written by Mike Fish and Charley Drummond 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 authors atmfish@fishnelson.com and cdrummond@fishnelson.com or (205) 332-3414.

On May 19, 2017, the Alabama Supreme Court released its opinion in SSC Selma Operating Company, LLC, d/b/a Warren Manor Health & Rehabilitation Center and SavaSeniorCare Administrative Services, LLC v. Jackie Fikes in which it reversed the trial judge’s order denying the employer’s motion to compel arbitration of a retaliatory discharge claim brought pursuant to §25-5-11.1.

On appeal the Court noted that there was no question as to whether or not the employment dispute resolution program (hereinafter EDR Program), was valid and that the parties had agreed to be bound by it. However, the issue on appeal was whether or not the language in the EDR Program that stated disputes not covered under the EDR Program include claims that relate to workers’ compensation...would also exclude a retaliatory discharge claim filed pursuant to §25-5-11.1 of the Alabama Workers’ Compensation Act. §25-5-11.1 specifically states that an employee cannot be terminated solely for bringing a workers’ compensation claim. On appeal the employer stated that the EDR Program specifically stated that it covered employment matters related to termination, discrimination, retaliation and harassment and other legally protected rights. The employer acknowledged that the EDR Program specifically stated that disputes not covered under the program are ones that relate to workers’ compensation, unemployment benefits, health, welfare and retirement benefits and claims by companies for injunctive relief to protect trade secrets and confidential information.

On appeal, the employee relied solely on the provision that stated claims related to workers’ compensation are not covered under the EDR Program and argued that the language was plain and unambiguous and, therefore, the discharge claim pursuant to §25-5-11.1 should be excluded from the EDR Program. However, the employer argued that, while the Alabama Workers’ Compensation Act gives rise to the discharge claim, that the retaliatory discharge claim pursuant to §25-5-11.1 is not a claim in the nature of a workers’ compensation claim and is actually a tort claim that was clearly intended to be included in the EDR Program requiring arbitration. In its opinion, the Supreme Court stated that it was apparent from the language in the EDR Program that the intent of the program was to submit to arbitration those employment related disputes where the plaintiff would ordinarily be entitled to have resolved by a jury, specifically noting claims arising from tort law and not claims governed by specific statues such as the Workers’ Compensation Act. The Court specifically stated that while a discharge claim pursuant to §25-5-11.1 arises out of the workers’ compensation factual setting, the claim is never the less a tort action and governed by general tort law. This includes the ability to recover damages for mental anguish and lost wages. The Court noted that while there are claims that relate to workers’ compensation laws, that those claims are generally for occupational disease and accident injuries as opposed to claims alleging retaliatory discharge. They also pointed out that the two claims, a workers’ compensation claim and tort claim (retaliatory discharge claim), are mutually exclusive.

In conclusion, the Supreme Court stated that the trial court erred in denying the employer’s Motion to Compel Arbitration of the employee’s retaliatory discharge claim since it was the clear intent of the EDR Program to have employment related disputes such as a retaliatory discharge claim brought pursuant §25-5-11.1, resolved by arbitration as opposed to a jury trial. Therefore, the Court held that the employee’s retaliatory discharge claim was not “related to” disputes concerning workers’ compensation laws, which are governed by the Workers’ Compensation Act, and are instead governed by the general rules of tort law.

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 worker’s 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.

A few days ago, we reported on the recent case of Nora Clower v. CVS Caremark, in which the Circuit Court of Jefferson County entered an order declaring The Alabama Workers’ Compensation Act unconstitutional. My initial knee-jerk reaction, like the reaction of many others, was that it would have state-wide implications on workers’ compensation law in Alabama. The sky was falling, and the workers’ compensation system as we know it just came to a screeching halt. However, spending a lot of time pouring over the order, the background of the case, and applicable Alabama law, I now have amuch different take on it.

For starters, I think it’s important to give a little more of the relevant background of the case. Clower filed her Complaint on November 20, 2013. In her Complaint, she alleged only a workers’ compensation claim arising out of an alleged accident occurring in and arising out of her employment with CVS on June 30, 2013. Clower did not allege any tort claims against CVS in her original Complaint, and she did not subsequently amend her Complaint to add any other claims against CVS. This is significant, because, ostensibly, if The Alabama Workers’ Compensation Act were to be struck down, the exclusivity provisions of the Act would go down with it.

Next, it’s important to understand that the Court’s May 8, 2017 order declaring the Act unconstitutional did not just come out of the clear blue sky. That order was the Court’s ruling on Clower’s "Motion for Relief: Constitutional Challenge to Two Statutes". Clower filed that motion on January 31, 2017, and CVS filed its response to that motion on February 10, 2017. When Clower filed her motion, she directed it to be served upon Alabama Attorney General Luther Strange, who was at that time serving his final days as the A.G. The Alabama Declaratory Judgment Act requires, among other things, that when the constitutionality of a statute is challenged, the Attorney General must be served with the pleading which raises the challenge, so that he has an opportunity to defend the statute in question.

As you may recall, then-Senator Jeff Sessions was nominated for the position of United States Attorney General by President-elect Donald Trump shortly after the November election. Senate Judiciary Committee hearings on Sessions’ nomination began on January 10, 2017, and Sessions was confirmed on February 8, 2017. Of course Sessions had to immediately resign his Senate seat, and none other than Attorney General Luther Strange was then appointed to take Sessions’ place, on February 9, 2017, thus leaving the Alabama Attorney General position temporarily vacant. Three days later, Steve Marshall was sworn in as the new Alabama Attorney General. Needless to say, there wasjust a little bit of chaos at the Alabama Attorney General’s office between the time Clower filed her motion on January 31 and April 25, when Marshall was finally served with Clower’s motion.

The most important factor in the ultimate implications of the Circuit Court’s decision, however, lies in Alabama Code § 6-6-227. That section, which is part of the Alabama Declaratory Judgment Act, provides in its pertinent part:

"All persons shall be made parties who have, or claim, any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding..."

In other words, when a party is seeking a declaration of law, such as a declaration by the court that a particular statute is unconstitutional, everyone whose interests would be affected by the declaration must be made a party. In the event that doesn’t happen, the declaration shall not prejudice the rights of anyone who is not a party to the action. InGuy v. Southwest Alabama Council on Alcoholism, 475 So.2d 1190 (Ala.Civ.App. 1985), the Alabama Court of Appeals held that when a party challenges the constitutionality of any provision of The Alabama Workers’ Compensation Act, the provisions of The Alabama Declaratory Judgment Act are triggered. That means that Clower’s motion triggered § 6-6-227. Yet, the only parties to the action are Clower and CVS Caremark. Yes, Steve Marshall was served with the motion, and yes Marshall declined to defend the Act (whether that was due to the curious timing of the motion, or some other reason). However, that does not change the fact that the only parties that would be affected by the Circuit Court’s recent ruling are Clower and CVS Caremark. In any other court, in any other county, involving any other parties, The Alabama Workers’ Compensation Act is still constitutional. The only way that would ever change isif CVS appeals the Circuit Court’s ruling, and the appellate court(s) affirm the Circuit Court.

It may seem like a foregone conclusion that CVS will appeal. I mean, surely CVS Caremark will appeal to avoid the possibility of facing tort liability, right? They may not. Since Clower only alleged a workers’ compensation claim, she would have to amend her Complaint in order to sue CVS in tort. The problem for Clower though, is that every conceivable statute of limitations for any tort claims against CVS have long since expired. If she ever had a viable tort claim against CVS, she can no longer bring such a claim, because it would be time-barred. Additionally, it is possible that Clower could now be judicially estopped from arguing that she is entitled to workers’ compensation benefits. In other words, if the Circuit Court’s order becomes final and is never overturned by the Court of Appeals or Supreme Court, Clower could conceivably recovernothing from CVS.

Whether you believe CVS will appeal or not appeal, it should be interesting to see how this plays out in the next 4 months.

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.

Perhaps you have already heard as news travels fast but on May 8, 2017, a Jefferson County Circuit Court Judge issued an Order declaring the Alabama Workers’ Compensation Act to be unconstitutional.  That’s right… the entire Act.  I am sure that you have many questions.  Here are a few answers.

QUESTION:        Is the judge stating that the entire Act is unconstitutional?  If not, why does he not just strike down the parts that are and leave the remainder intact?

ANSWER:           The Judge is not saying that the entire Act is unconstitutional.  However, he is of the opinion that (1) the statute which places a $220 weekly cap on permanent partial disability awards and (2) the statute that places a 15% contingency fee cap on legal fees are both unconstitutional.  Since the Judge has found those 2 statutes to be unconstitutional, it has the effect of declaring the entire Act unconstitutional due to a non-severability (all or none) statute.

QUESTION:        Can he do that?

ANSWER:           Yes.  A Circuit Court Judge is empowered to consider the constitutionality of statutes.  In fact, there is an obligatory duty on courts to do so.  However, it is important to remember that the proverbial buck does not stop there.  In the event that this Order becomes final, then the parties will have the right to appeal the issue to the Alabama Court of Civil Appeals which has original jurisdiction over workers’ compensation matters.  From there the parties can appeal to the Alabama Supreme Court.

QUESTION:        The Judge gave the Alabama legislature 120 days to fix the parts of the Act that he deems unconstitutional.  Do you think that is enough time and, if so, will amended bills get passed?

ANSWER:           Probably not.  There is not enough time with only 6 meeting days left in the 2017 Regular Session.  Even if there was enough time, the issue has come up many times over the years.  Bills are introduced which include too many controversial provisions.  For the $220 cap or the 15% contingency fee to change, there needs to be a serious conversation between employee and employer interests to figure out the best way to effectuate that change.  Simply introducing a bill and trying to force it down the other side’s throat is not going to work.  Major changes were implemented in 1992 and that was due to a couple of years of meetings between all interested parties until a consensus was formed.

QUESTION:        What happens if the Appellate Courts agree with the Circuit Judge?

ANSWER:           Before I answer that, let me first address why they probably will not agree.  The reason they probably will not agree is because it is a function of the legislature to make this needed change.  The Circuit Judge has put a spot light on the need for the change and that is a good thing.  However, the Appellate Courts are probably not going to send Alabama into the work accident dark ages because of 2 statutes regardless of how unfair they are deemed to be.  The more likely scenario is that the Appellate Courts will either disagree and reverse or agree but reverse on the grounds that it is the legislature’s responsibility.   In that scenario, my guess is that the Courts will encourage employer, employee, and medical interests to get together as they did 25 years ago in order to effectuate change.

QUESTION:        What if you’re wrong?

ANSWER:           Let’s all hope that I’m not!  Workers’ Compensation was created for a couple of reasons.  First, it provided immediate indemnity and medical benefits to injured employees through a system of no fault insurance.  Second, it provided employers with protection from tort liability through the Exclusivity Doctrine.  This was known as the Grand Bargain.  Scrapping this system would result in the following:

1. Employers would no longer have any protection against tort lawsuits since the Exclusivity Doctrine would be gone.

2. Employees would be able to maintain tort lawsuits against employers.

3. Plaintiffs’ attorneys would enjoy much higher percentage contingency fees because there would be no statute placing any restrictions on how much they could take from the award or settlement of an injured employee.

4. In order to prevail against the employer, the employee would have to prove at a bare minimum the elements of negligence.  In other words, they would have to prove that the employer breached a duty of care and said breach caused the accident and injury.

5. In all situations where an employee was injured and it was not the fault of the employer, the employee would have no access to a tort recovery or workers’ compensationbenefits.  In other words, the employee would be receiving nothing.

6. A flurry of motions to dismiss pending workers’ compensation lawsuits will be filed all over the state. 

7. Many employees in the insurance and legal industry would be out of a job.

In a nutshell, employee, employer, insurance, medical, and legal interests will all be adversely affected.  While our system is far from perfect, it is the only one that we have.  The alternative is far worse.  Rather than pursue a final order deeming our current system to be void as unconstitutional, let us use this recent Order as a wakeup call to all concerned and open a dialogue between all interested parties.  In 2019, we will celebrate 100 years of workers’ compensation in Alabama.  Let’s work together to make sure that the system we have in place at that time is improved and fair to all concerned.

OSHA recently implemented its new "reporting and anti-retaliation rule", which went into effect January 1, 2017. Under the new rule, certain employers must now submit injury and illness information electronically. Most employers were already required to keep records of work related illnesses and injuries and to report fatalities and other certain serious injuries. However, under the new rule, companies that employ 250 or more employees must electronically submit OSHA Form 300 (Log of Work Related Injuries and Illnesses); OSHA Form 301 (Injury and Illness Incident Report); and OSHA Form 300A (Summary of Work Related Injuries and Illnesses) on a quarterly basis. Companies in the construction, manufacturing, utilities, and agriculture industries, which have historically high rates of occupational injuries and illnesses, must submit OSHA Form 300A annually when they employ between 20 and 249 employees. Additionally, OSHA may provide written notification to any smaller employers requiring them to submit information on a routine basis electronically.

The anti-retaliation rule allows OSHA to cite employers for taking adverse action against employees for reporting a work related injury or illness, even if the employee does not file a retaliation complaint. It also allows OSHA to cite employers who have systems in place that have traditionally been used to create safer workplaces, but OSHA now says discourage injury reporting. In the rule, OSHA specifically address concerns regarding safety incentive programs and post accident drug and alcohol testing.

OSHA states that employers may perform post-accident drug and alcohol testing only where (1) there is a reasonable possibility that the employee’s drug use contributed to the incident and (2) the drug test can accurately identify that the impairment was caused by the drug use. On the other hand, OSHA states that it is unreasonable to drug test an employee when it is clear that drug or alcohol use would not have made it more likely that the injury would occur (such as insect bites and repetitive strains occurring over a long period of time). OSHA’s reasoning is that allowing employers to drug test after every accident/injury discourages employees from reporting injuries. Safety incentive programs such as cash bonuses for departments or employees that remain accident free are also prohibited. OSHA says that employees who are injured may be reluctant to report it because they are afraid their co-workers will be hostile toward them for not getting the incentive.

OSHA can fine employers up to $12,471.00 for a single serious violation and up to $124,709.00 for willful or repeated violations. Therefore, all employers need to review their injury-illness reporting requirements, post accident drug and alcohol testing protocols and safety incentive programs.

My Two Cents

The new reporting requirements should not be a big deal for most employers, since the reporting does not really change - just the method of reporting. On the other hand, the "anti-retaliation" rule presents new issues and problems. While across-the-board drug testing may discourage drug users from reporting injuries, it also discourages drug use.

Did You Know?

If you receive a Notice of Citation from OSHA, you have a right to contest it and have the matter tried before a neutral judge. You also have the right to obtain information that OSHA obtained in its investigation, and to conduct your own investigation into the merits of the alleged violation(s).

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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.

Senator Arthur Orr (R, Decatur) recently introduced SB-89, which would limit employers’ liability for permanent total disability benefits. Currently, an employer must pay permanent total disability benefits for as long as the employee remains permanently and totally disabled. SB-89 would amend § 25-5-57 (a)(4) a. of The Alabama Workers’ Compensation Act to provide that permanent total disability benefits would terminate upon the later of the employee’s 65^th birthday, or 500 weeks after the date of injury. Additionally, SB-89 would amend § 25-5- 77(j) of The Alabama Workers’ Compensation Act to create a rebuttable presumption that medical treatment is not related to the work injury when the employee does not receive medical treatment related to the claimed injury for a period of two years. In addition, the employer’s obligation to provide treatment would conclusively end if the employee does not receive medical treatment related to the claimed injury for a period of four or more years. SB-89 was first read in the Senate Fiscal Responsibility & Economic Development Committee on February 7, 2017.

Senator Orr also introduced SB-196, which would amend Alabama Code § 13A-11-124 to (1) expand the type of activity related to workers’ compensation fraud that is subject to criminal penalties; (2) authorize an award of civil damages to employers and insurers damaged by fraudulent claims; (3) allow the Department of Labor to immediately terminate compensation payments upon a determination of fraud; and (4) provide for the repayment of fraudulently obtained workers’ compensation benefits (with interest). Under SB-196, it would be a class C felony to (1) knowingly make a false or misleading statement, representation, or submission concerning any fact that is material to a workers’ compensation claim; (2) coerce, solicit, encourage, or employ another to make a false or misleading statement concerning a fact material to a workers’ compensation claim or the payment of compensation or premiums; (3) present multiple claims for the same injury; (4) fabricate, alter, conceal, or destroy a document; or (5) attempt to obtain treatment or compensation for body parts that were not injured in the course and scope of the employment. SB-196 was first read in the Senate Fiscal Responsibility & Economic Development Committee on February16, 2017.

Continue to follow our blog for updates as these bills are debated in the legislature.

My Two Cents

The limitation on permanent total disability benefits makes a lot of sense, since employees are generally eligible for Social Security benefits in the mid-late sixties. If SB-89 becomes law, the costs of workers’ compensation insurance should decline, which could make Alabama more attractive to businesses looking to expand or relocate. Unfortunately, it will not likely pass because of the portion of SB-89 that seeks to cut off medical benefits after extended periods without treatment.

SB-196 would give Alabama one of the most aggressive anti-fraud laws in the country. If it becomes law, it could lower insurance costs by deterring fraud. However, like any criminal statute, how well it deters crime will depend primarily on how aggressively it is enforced.

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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.

It's almost time to register for the 36th Annual AWCO Spring Conference to be held May 4-5, 2017 at the Hyatt Wynfrey Hotel! Online registration will open March 1, 2017 on the AWCO web site atwww.awcotoday.com. You can register and pay online, register as a member with no fee or print the paper registration to be mailed in. Online registration will remain open through April 30, 2017. On site registration will be available, but pre-registration is strongly encouraged to avoid long lines. 

The conference is FREE to all paid members. The cost of an annual membership is $75 whereas regular conference registration is $100.  This amounts to a no brainer.  Membership does not automatically register you for conference attendance. Please note, members MUST register to attend the conference. Registration can be completed online with no associated cost. Membership is open on the web site through 2/28/17 for those who have not yet completed the application. Memberships received after 2/28/17 are not eligible for free conference registration. 

Thursday evening features a Casino night including a silent auction for the Cystic Fibrosis Foundation.  We hope to see you there!

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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.

Over the years, an Alabama pain management doctor built a reputation for prescribing large quantities of opioid medications out of his Huntsville office, and his patients included many workers’ compensation claimants.  In 2012, he prescribed over 12.3 million pills, many of which authorities say should have never been prescribed.  Additionally, it was determined that he defrauded Medicare and private insurers out of at least $9.5 million. 

In October 2016, the doctor pleaded guilty to illegally writing prescriptions, and to health care fraud. Prior to his arrest, he was once considered the nation’s most prolific Medicare prescriber of opioid painkillers.  Now, he will spend the next 15 years in federal prison and has to pay $6.7 million in restitution to Medicare and Blue Cross Blue Shield of Alabama.

It’s no secret that “pill mills” have long been a problem in Alabama.  A 2013 study by the Centers for Disease Control and Prevention found that Alabama was among the top 20 states nationally in the number of prescription drug overdoses.  In response to that report, the Alabama Legislature passed The Alabama Pain Management Act and made changes to the laws that pertain to the Alabama Department of Public Health’s Prescription Drug Monitoring Program.

My Two Cents

The Prescription Drug Monitoring Program includes a database where doctors can determine what prescription drugs a patient has had filled by other doctors.  It can be a very useful tool for doctors to identify patients that are “doctor shopping” to obtain prescription painkillers.  Only doctors can access the database, and they cannot share the information that they obtain.  However, it is a good idea for claims professionals to insist that the physicians they select to treat claimants review the database, at least on suspect claims.

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 atcdrummond@fishnelson.com or (205) 332-3414.

On September 23, 2016, the Alabama Court of Civil Appeals released its opinion inAugmentation, Inc. v. Harris. Debra Harris alleged injuries to her neck, back, and left shoulder while working for Augmentation on April 3, 2011. Harris’ authorized treating physician, Dr. James Bailey, diagnosed Harris with "recurrent cervical and lumbar strains", and prescribed conservative treatment that consisted primarily of injections and pain medications. Augmentation disputed that the "recurrent strains" were related to Harris’ alleged accident, and Harris filed a Complaint for workers’ compensation benefits in the Circuit Court of Tuscaloosa County. At the outset of the case, Augmentation filed a motion seeking an independent medical examination, and that motion was denied. After the depositions of Harris and Dr. Bailey, the parties agreed to a settlement of Harris’ indemnity and vocational benefits. The settlement agreement presented to the trial court clearly stated that compensability of Harris’ alleged injuries was disputed, and that the issue of "future medical benefits shall remain open, subject to all medical necessity, causation, and pre-authorization requirements as provided by The Alabama Workers’ Compensation Act." The trial court approved the settlement in April 2014.

Subsequent to the settlement, in 2015, Dr. Bailey prescribed a lumbar epidural steroid injection and prescription pain medications to treat Harris’ lumbar strain. The workers’ compensation adjuster wrote to Dr. Bailey, asking him to address whether the need for said treatment was related to the April 2011 injury or some other cause, and if so, what the basis for his opinion was. According to Augmentation, Dr. Bailey did not respond to the letter. The adjuster then contacted two other orthopedic specialists, and asked for their respective opinions on the matter. Both of those physicians penned reports in which they stated that the cervical and lumbar strains Harris sustained in the April 2011 accident most certainly would have resolved after nearly four years, and the need for further treatment would not be related to the accident. Based on this information and the fact that Dr. Bailey had not provided any information to the contrary, the treatment prescribed by Dr. Bailey was not approved. Harris then filed a petition asking the Court to hold Augmentation in contempt of the April 2014 Order approving the settlement. Augmentation responded to Harris’ petition, asserting that the April 2014 Order did not require it to provide the treatment prescribed by Dr. Bailey unless Harris could prove that the treatment was related to the 2011 accident. Citing § 25-5-88 of The Alabama Workers’ Compensation Act, Augmentation pointed out that Harris was entitled to have a trial on the issue to resolve the dispute, and that Harris would have the burden of proof. Augmentation also argued that even if it should have approved the treatment recommended by Dr. Bailey, it’s failure to do so was not willful and contumacious based on the language of the settlement agreement. The court set the matter for hearing, and Augmentation sought leave of court to obtain the deposition testimony of the two orthopedic specialists who provided written opinions prior to the hearing on Harris’ contempt petition, which the trial court denied.

The trial court held a hearing, and found Augmentation in contempt "for its willful, continuing failure or refusal to comply with the Court’s Settlement Order dated April 3, 2014, wherein the Court ordered that future medical benefits shall remain open." The trial court further stated that Augmentation failed to present evidence that the treatment prescribed by Dr. Bailey was not reasonably necessary, and that it failed to present good and valid reasons for its refusal to authorize that treatment. The court ordered Augmentation to pay Harris’ attorney’s fees, and ordered Augmentation to approve all treatment prescribed by Dr. Bailey. Augmentation appealed, arguing that it was not in contempt because the settlement order put limitations on its liability for future medical treatment; that any violation of the settlement order was not willful and contumacious; and that the trial court erred by failing to allow meaningful discovery or conduct a trial on the merits of the case.

The Court of Appeals found that while the settlement order only required Augmentation’s to provide future medical care subject to medical necessity, causation, and pre-authorization requirements, the trial court had concluded that the treatment prescribed by Dr. Bailey satisfied those requirements. The Court of Appeals further held that it was Augmentation’s duty to contest its liability (prior to Harris filing her contempt petition), citingTotal Fire Prot., Inc. v. Jean, 160 So.3d 795, 799 (Ala.Civ.App. 2014). The Court noted that Augmentation did not seek a judicial determination in accordance with § 25-5-88 prior to Harris filing her petition, and it did not resort to the utilization review process outlined in § 25-5-293(g). As a result, the Court of Appeals held that the trial court did not abuse its discretion in finding that Augmentation’s failure to approve the treatment "without just cause" was willful and contumacious.

The Court of Appeals affirmed the trial court’s ruling, and Augmentation petitioned the Supreme Court of Alabama for a Writ of Certiorari. On December 9, 2016, the Supreme Court denied the Petition for Writ, without a written opinion.

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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.

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.