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.
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.
Effective January 1, 2017, the standard mileage reimbursement rate for Alabama was decreased to 53.5 cents per mile.
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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.
The Supreme Court recently released its decision in Ex Parte Lincare, Inc., which involved an employee who was allegedly assaulted by her supervisor on the employer’s premises immediately after she was terminated. The employee sued her employer for workers’ compensation benefits, and sued both her employer and her supervisor for assault, battery, and the tort of outrage. The employer and supervisor filed motions to dismiss and motions to sever, arguing that the workers’ compensation claim should be severed from the employee’s tort claims, and that the tort claims were due to be dismissed based on the exclusivity provisions of §§ 25-5-52 and 25-5-53 of The Alabama Workers’ Compensation Act. , The supervisor also filed a motion to strike the plaintiff’s jury demand, based on an agreement in the employee’s job application that stated such a waiver was a condition of hire. The trial court issued an order granting the severance, but denying the motions to dismiss and the motion to strike. Both defendants then filed a petition for writ of mandamus with the Supreme Court.
The Supreme Court held that the employee’s alleged assault occurred in and arose out of her employment because it was precipitated by her resignation while she was on her employer’s premises and concerned her possession of certain documents owned by her employer. The Court also noted that the employee’s alleged injuries were not expected or intended by her employer, so they fell within the definition of a "accident" within the meaning of the Act. The Court noted that "even following an employee’s termination, the employee must be given a reasonable time to leave the premises before the employer-employee relationship is considered severed and the workers’ compensation act is rendered inapplicable". As such, the Supreme Court granted the employer’s petition for writ of mandamus, holding that the assault and battery claims were barred by the exclusivity provisions of the Act. However, the Supreme Court denied the supervisor’s petition for writ mandamus, because Alabama law provides for mandamus review of the denial of a motion to dismiss only in cases where the motion is based in immunity (as was the case for the employer, but not the supervisor). Finally, the Supreme Court denied the supervisor’s motion to strike the plaintiff’s jury demand, because the supervisor was not a party to the employment agreement.
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.
OSHA recently issued a proclamation against the blanket drug testing of all employees that report work accidents. While there is no specific law against it, OSHA has advised that it will consider such practice retaliatory in nature because it could discourage an employee from reporting a legitimate accident or injury.
In Alabama, the Workers’ Compensation Code provides the employer with an affirmative impairment defense to indemnity benefits under Section 25-5-51. A positive DOT compliant drug test results in an irrebuttable presumption of impairment. Even with this presumption in place, the employer still has the burden of proving that impairment caused or contributed to the accident. Per OSHA, employers are now called upon to determine whether there is any reasonable connection between drugs and/or alcohol and the accident/injury prior to administering the test. If drug or alcohol impairment could have been a contributor to the accident, then requiring the test will not be considered discriminatory. If there is no reasonable connection, then employers risk a retaliation claim by OSHA in federal court.
If an employer opts in to the Drug Free Workplace Program offered by the Alabama Department of Labor, then it will likely work as a defense to any claim of retaliation when all employees with reported claims are tested.
OSHA will begin its enforcement of this new policy on December 1, 2016. After that, employers who have not opted in to the Drug Free Workplace Program should plan on changing post-accident drug testing policies from “shall be tested” to “may be tested” and consider the relationship between any possible impairment and the accident/injury prior to testing.
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.
In recent weeks Zero Dollar Allocation MSAs came into question. Initially it was thought that on any claim, even fully denied claims, where approval of a zero dollar MSA was sought, documentation would have to be provided to the Centers for Medicare and Medicaid Services (CMS) to support the zero dollar MSA. This would include submitting 1) Final settlement documents or a statement that none exist, 2) All court rulings including but not limited to rulings on compensability or 3) if no court ruling exists on compensability, treatment records showing no further treatment is needed for the work injury or a statement from the doctor concerning future treatment.
However, additional information surfaced later that indicated the above stricter guidelines would not apply to settlements of completely denied or disputed claims.
As for zero dollar allocation MSAs on accepted claims, it is our understanding that the above guidelines will likely be put in place. In these cases to secure CMS approval, you will need to get a court order that indicates the claim is not compensable or treatment records showing no further treatment for the work injury will be required.
With all that said, we will wait to see if CMS issues any new guidelines via policy memo.
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.
On September 9, 2016, the Alabama Court of Appeals released its decision in Kennamer Bros., Inc. v. Stewart, in which it affirmed the Circuit Court of Marshall County determination that Stewart’s shoulder injury was compensable. In that case, the truck driver-employee was involved in a rollover accident and sustained multiple injuries. However, the primary issue was whether Stewart’s right shoulder injury was compensable. Stewart had been airlifted to a hospital after the accident, where he was treated for head injuries. He underwent several procedures to remove shards of glass from his scalp and was prescribed antibiotic and pain medications. After he came off of pain medications for his head injury, he then noticed pain his right shoulder and was later diagnosed with a rotator cuff tear. However, Stewart did not report his alleged right shoulder pain to his treating physician until nearly five months after the alleged accident. The physician testified that while it would be very unusual for a person with a rotator cuff tear to not experience immediate pain, it was possible that pain from more severely injured parts of his body and/or pain medications administered for others injuries could mask the symptoms of a rotator cuff tear. The physician further testified that Stewart’s symptoms were consistent with his self-reported medical history and were consistent with a rotator cuff injury. Kennamer Brothers failed to present evidence of any subsequent accident or injury that would explain Stewart’s symptoms.
Stewart was ultimately released to return to work in February 2013, but was unable to drive for Kennamer Brothers because the employer could not secure insurance coverage for him due to the fact that he had been involved in several automobile crashes. In January 2014, Stewart went to work for a different employer.
Based on the evidence, the trial court found that Stewart’s right shoulder injury was compensable, and awarded TTD benefits through January 2014. Kennamer Brothers appealed. The Alabama Court of Appeals noted that the employee’s burden of proof is to produce substantial evidence tending to show that the alleged accident occurred and that it caused or was a contributing cause of the injury. The Court of Appeals held that Stewart met this burden of proof, and noted that symptoms that first appear a few hours, days, or even months after a traumatic event may nonetheless properly be deemed causally related if no intervening event has occurred and no alternative medical explanation is provided for the presence of symptoms.
The Court of Appeals acknowledged that TTD benefits may not be owed if the injured employee is able to work and earn his pre-injury wages, but he is prevented from working for reasons unrelated to his workplace injury. However, the Court of Appeals found that the trial court had a sufficient basis on which to determine that the reason for the termination of Stewart’s employment (i.e. his uninsurability) was related to the injury he sustained. The Court noted that had Stewart not been involved in the crash, he probably would not have been an impossibly high insurance risk. Based on this, the Court of Appeals stated it could not conclude that Stewart failed to show a causal link between his injury and his diminished earning capacity, and affirmed the portion of the order awarding TTD benefits through January 2014.
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.
Common law marriage will be abolished in the state of Alabama effective January 1, 2017. Act 2016-306, provides that the only common law marriages that Alabama law will continue to recognize are those entered into prior to January 1, 2017. This will have an obvious effect on the eligibility of surviving spouse death benefits in worker’s compensation cases.
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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.
On July 22, 2016, the Alabama Court of Civil Appeals released its opinion in City of Birmingham v. Thomas, in which it addressed whether the City of Birmingham improperly reduced Thomas’ employer-provided disability benefits due to his prior workers’ compensation settlement. Thomas had filed a workers’ compensation claim while working for the City, and the parties reached a settlement in October 2013. The terms of the settlement provided that the city would pay Thomas $225,000 in exchange for a release of all claims against the City, except future medical benefits arising under The Alabama Workers’ Compensation Act. The settlement was court approved on December 12, 2013. Then on December 20, 2013, Thomas applied for "Extraordinary Disability Benefits" through the City’s Retirement and Relief Pension Board. In his application, Thomas acknowledged "I am aware that if I am granted an Extraordinary Disability Pension (job related disability), there will be a set-off with any workers’ compensation benefits that I receive". Thomas also signed a document labeled "Notice to Applicants Applying for Extraordinary Disability Pension", which provided that any Extraordinary Disability Benefits awarded by the Board would be offset, dollar for dollar, by the amount of any workers’ compensation benefit, as provided in the City of Birmingham Retirement and Relief System Pension law. The notice also informed Thomas that the City of Birmingham Retirement and Relief System was a separate entity from the City of Birmingham.
In September 2015, Thomas filed a Motion to Enforce Settlement Agreement, in which he asserted that the city had unilaterally decided to reduce his pension benefits, contrary to the workers’ compensation settlement agreement. His argument was essentially that the city improperly set off his Extraordinary Disability Benefits by the amount of his workers’ compensation settlement. The City responded to that motion, asserting that it had made all payments agreed upon in the workers’ compensation settlement; that the Board was a separate entity from the City; and that the Board had informed Thomas that his Extraordinary Disability Benefits would be offset by the workers’ compensation payments. The trial court entered an order finding that since there was no mention of the sett-off in the workers’ compensation settlement agreement and/or order, the City had waived, or was estopped from asserting, any right to a set-off. The order further directed the City to pay all Extraordinary Disability Benefits that had accrued, and to make monthly payments thereafter. The City obtained a stay of the trial court’s judgment and appealed. The Court of Appeals held that the city was not estopped from asserting its right to a set-off. It also held that since the city was separate entity from the board, the city could not have waived any right the board might have to a set-off. Finally, the Court rejected the argument that the board was merely an instrumentality of the city, and that the trial court therefore did not have jurisdiction over the Board in the workers’ compensation case. The Court of Appeals remanded the case back to the trial court with instructions that it deny Thomas’ Motion to Enforce.
My Two Cents:
The outcome of this case could have been much different if it were not for the fact that the City and the Board were two separate and distinct entities. In situations where an employer offers other disability benefits through a plan outside of the Workers’ Compensation Act, it is wise to address what, if any, effects any workers’ compensation settlement may have on eligibility for such benefits.
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 July 22, 2016, the Alabama Court of Civil Appeals released its opinion in Smith v Brett/Robinson Construction Company, Inc. and again found that evidence which only establishes a mere possibility that the injuries are related to the work accident is not sufficient to prove medical causation.
In May of 2013 the employee tripped and fell on the job causing her to suffer an injury to her left knee. The employer sent her to Dr. Greg Terral who ordered an MRI and stated the employee possibly suffered from an meniscus tear. Surgery was ultimately scheduled and took place 6 months after the accident. The pre-operative diagnosis was osteoarthritis and suspected meniscal pathology. The post-operative diagnosis was grade 3 chondromalacia of the medial and patellofemoral compartment with unstable chondral tissue. Dr. Terral went on to note in the operative report that the plaintiff had intact meniscal tissue. After surgery the employee stated the pain was worse and ultimately selected Dr. Joseph McGowin from a panel of 4. Dr. McGowin opined that the employee’s symptoms were from arthritis which was pre-existing and that the employee had no evident tears in her knee. In November of 2013, Dr. McGowin stated that he did not think the accident caused the employee’s arthritis. He went on to state that the current symptoms may have been the result of the injury and an aggravation of the arthritis. The employee returned in January of 2014 when Dr. McGowin placed her at MMI with a 5% impairment rating to the left leg. The employee returned in November of 2014 and reported that she felt there was some shifting. Dr. McGowin stated again that he felt that her problems were arthritic in nature. However, an MRI was performed and the doctor noted that the MRI revealed a little intrasubstance degeneration of the medial meniscus, chondrol changes and a little edema of the cruciate ligaments. The employee returned in February of 2015 and the doctor noted that the employee said that she had turned and felt her knee pop about a week prior and had felt pain since. Dr. McGowin opined that she suffered a flare up of her arthritis (of note, at trial the plaintiff denied saying that she had a new accident). In March of 2015, another MRI was performed at which time the MRI referenced a meniscal tear. However, Dr. McGowin read the MRI and again stated that she suffered from intrasubstance degeneration of the medial meniscus and that he did not think there was tear. He also noted that she was suffering from IT band tendonitis. Dr. McGowin then stated that he did not believe she would benefit from surgery. The employee returned to Dr. McGowin in April 2015. Dr. McGowin indicated that there was an option of considering an arthritic arthroscopic exam to assure that there was no tear but there was only a limited likelihood that this would result in some symptom improvement. He recommended that she be evaluated by Dr. James Cockrell for an evaluation and consideration of surgery. During this period Dr. McGowin responded to a letter from the workers’ compensation carrier and stated that it was possible that the meniscal tear was, if there, a new injury given the change in the MRI. He then stated he thought that if there was a mensical tear, it would be unrelated to the original injury. The plaintiff was treated by Dr. Cockrell in November of 2015 and reported that she wanted surgery. The doctor stated that he only thought there was a possible tear and this could all be related to arthritis and the surgery would not be beneficial. As a result, the workers’ compensation carrier refused to pay for the surgery.
At the Trial Court level in Baldwin County, AL, testimony was presented by the plaintiff and her co-workers establishing that prior to the fall she was working full duty without knee problems and that after the accident, she had been unable to do the same. Upon hearing testimony and reviewing medical evidence, the Trial Court found that the employer was not responsible for the surgery. The Trial Court based its opinion on Dr. Terral performing surgery to repair the left knee, which noted no meniscus tear and then Dr. McGowin stating there was no meniscus tear and the employee’s problems were arthritic in nature and not work related. It further noted Dr. Cockrell’s opinion that there was a possibility of a tear but her problems could all be arthritic in nature and the Trial Court stated that Dr. Cockrell gave no opinion on medical causation in making this statement. The Trial Court’s ultimate findings were that the left knee pain, pursuant the medical evidence, was arthritic in nature, not accident related, and that there was no medical evidence supporting that she needed surgery. Therefore, they felt that the surgery was not reasonable and necessary as a result of the original injury.
On appeal the employee argued that her current problems are due to work related meniscus tear and/or the arthritis and that arthritis was caused or accelerated by the on the job accident. The employee support this by the fact that prior to the accident she did not have knee problems and that she had pain ever since. The employee cited Equity Group-Ala. Div. v Harris, 55 So. 3d 299, 311 (Ala. Civ. App. 2010). The Appellate Court pointed out that the employee’s position was correct that the Trail Court can infer medical causation based on someone’s ability to work prior to an accident and then their inability to work after the accident. However, the Court of Appeals state that this did not mean the Trial Court was required to ignore medical evidence indicating that the alleged symptoms were not work related. In the current case, the Alabama Court of Civil Appeals stated that the medical evidence only suggested a possibility of a torn meniscus, therefore, the Trial Court was within its discretion to conclude that there was not substantial evidence to support that the on the job accident resulted in a torn meniscus.
As it relates to the plaintiff’s assertion that the current problems are arthritic in nature and that the on the job accident caused or accelerated her arthritic condition, the Alabama Court of Civil Appeals stated that while it is true that no pre-existing condition is deemed to have existed for the purpose of awarding of workers’ compensation benefits if the employee could work before the accident and then is unable to work afterwards. However, again the Alabama Court of Civil Appeals stated that did not mean that the employee was not required to prove that the work accident actually caused the arthritis to manifest or to become aggravated. The Court of Civil Appeals pointed out that the employee relied on the fact that she was in no pain before and that there was one note from Dr. McGowin that the symptoms may have been the result of the injury and aggravation of the arthritis. The Court of Civil Appeals again stated that the mere possibility was not enough to establish medical causation, especially, when other evidence stated that the current problems were not work related.
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.
Beginning July 1, 2016, the maximum worker’s compensation payable was raised to $832 per week and the minimum was raised to $229 per week. This change was based on the Commissioner of Labor’s determination that the State’s average weekly wage was $831.88 in the calendar year 2015, and the change is effective for any injury occurring on or after July 1, 2016.
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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.