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.
On October 16, 2015, The Alabama Court of Civil Appeals released its opinion inAnita Martin v. Austal USA, LLC. At the trial court level, the judge granted the employers motion for summary judgment based on the applicable statute of limitations. It being an occupational disease case, the two year statute of limitations in which to file a lawsuit would have started to run on (1) the date of last exposure or (2) the date of the last indemnity payment, whichever is later. It was undisputed by the parties that the date of last exposure was the last day worked and, using that date, the statute would have definitely expired. However, the employee received employer sponsored short term disability benefits while she was out of work. The employee argued that said benefits constituted indemnity payments that served to toll the statute of limitations. The employee cited to a case where the court held payment for injury days and full pay for less than full work constituted indemnity payments.
On appeal, the Court of Civil Appeals distinguished the case relied upon by the employee by noting that the employer in that case was aware that the employee was making a workers’ compensation claim. In the instant case, however, there was no evidence that the employer was aware that the employee was claiming a work related occupational disease at the time she was receiving her short term disability benefits. As a result, the Court affirmed the trial judge’s decision.
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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 atmfish@fishnelson.com or by calling him directly at 205-332-1448.
On October 16, 2015, the Alabama Court of Civil Appeals released its opinion inJenkins v. American Transport, Inc., reversing the trial court’s order granting summary judgment in favor of American Transport, based on the trial court’s finding that American Transport was not Jenkins employer and that Jenkins’ injury was not subject to Alabama’s workers’ compensation laws.
Jenkins was a truck driver who leased his truck to American Transport. The parties entered into an agreement in Dothan, Alabama, which provided that Jenkins would use the truck to haul freight for American Transport throughout the United States. The agreement explicitly stated that Jenkins was an independent contractor and not an employee. The agreement provided that either party could terminate the relationship by giving thirty (30) days written notice, and that American Transport could terminate the agreement if Jenkins violated established service standards, any laws, any terms and/or conditions of the agreement, or transported any cargo for any company other than American Transport. The agreement further provided that American Transport would compensate Jenkins by paying him a percentage of the gross revenue of each load; that Jenkins was responsible for providing his own workers’ compensation insurance; that Jenkins assumed full responsibility for all loads; that Jenkins had the right to accept or reject loads offered to him by American Transport; and that American Transport had no right to control or attempt to control the manner or means by which Jenkins performed under the agreement.
Jenkins was later injured while hauling a load from Colorado to Minnesota. He sued American Transport for workers’ compensation benefits, and American Transport filed a Motion for Summary Judgment. In its Motion, American Transport asserted that it was not Jenkins employer, and that even if it were his employer, Alabama law would not apply because Jenkins’ employment was not principally localized in the state. The trial court granted American Transport’s Motion for Summary Judgment, and Jenkins appealed.
The Court of Appeals pointed out that Jenkins’ designation as an independent contractor alone was not determinative of whether he was entitled to workers’ compensation benefits. The Court of Appeals found sufficient evidence in the record to establish that American Transport retained a right to control, and even exercised the right to control, Jenkins’ work. Based on this, the Court found that there were genuine issues of material facts as to whether Jenkins was an employer or independent contractor, and that summary judgment was therefore improper. Additionally, the Court found that while Jenkins’ employment was not principally located in any state, there was sufficient evidence in the record to establish that if Jenkins was an employee, his contract for hire was made in Alabama.
Most notably however, the Court of Appeals pointed out that American Transport failed to argue that it could not be deemed Jenkins’ employer pursuant to §25-5-1(4). That section provides that "In no event shall a common carrier be deemed the employer of an owner/operator or a leased operator." The Court pointed out that if American Transport had asserted this defense, there may have been no need to determine whether American Transport retained a right of control over Jenkins, because American Transport would have been exempt from the provisions of the Alabama Workers’ Compensation Act.
MY TWO CENTS
Generally, when the putative employer retains a right to control the agencies and means of the work being performed, the parties will be subject to the Act. However, § 25-5-1(4) provides an absolute exemption for common carriers who employ leased owner-operators. The employee bears the burden of proof in workers’ compensation, and that burden even applies to establishing that he/she is an employee. However, since American Transport moved for summary judgment, it had the burden of proving that it was exempt pursuant to § 25-5-1(4).
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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 atcdrummond@fishnelson.com or (205) 332-3414.
Ex parte Ward International
Released September 4, 2015
The Employer, Ward International, filed a Petition for Writ of Mandamus after the Circuit Court of Mobile County entered and ordered, upon motion by the Employee, Wesley Shows, requiring the Employer to pay for erectile dysfunction (ED) medication order by the authorized treating physician.
The Employee and Employer had entered into a settlement related to a compensable lower back injury. The settlement left the issue of future medical benefits open. In March of 2015 the authorized treating physician, Dr. Wayne Cockrell, prescribed time release medication to be ingested every day to treat the Employee’s ED. The Employer deny the request and the Employee filed a motion with the trial court requesting that they enter an order requiring the Employer to pay for the ED medication. The motion included an opinion from Dr. Cockrell that the Employee suffered from chronic pain that required narcotic analgesics, and that ED can certainly be associate with chronic pain and the use of narcotic analgescis.
In its petition the Employer did not argue that it was entitled to an evidentiary hearing pursuant toEx parte Publix Supermarkets, Inc, 963 So. 2d 654 (Ala. Civ. App. 2007), nor did the Employer argue that the medication was reasonable necessary to treat the ED which resulted from the compensable accident/injury. The Employer relied solely on Rule 480-5-5-.15(15) of the Alabama Administrative Code, which is a regulation put into effect by the Alabama Department of Labor.
According to Rule 480-5-5-.15(15), which states it was promulgated pursuant to Ala. Code §25-5-293, the employer is responsible for ED medication when the employee suffers fromorganic ED that resulted from a compensable on the job injury. The rule further states that psychological or psychiatric ED are notorganic ED. The Department of Labor included 6 conditions that may cause organic ED: 1) Spinal cord injuries; 2) Injuries to genital and lower Urinary Tract; 3) Severe fracture fo the pelvis resulting in injury to the bladder or urethral pelvic nerve; 4) surgery of the genital or lower urinary tract; 5) removal of rectum causing injury to the nerves or vessels; or 6) any surgery that might interfere with the pelvic nerves or circulations. The Regulation goes on to state that the Employer is only responsible for 5 tablets per 30 days if treatment is for an accepted claim, one of the 6 conditions above are met, a urologist has evaluated the employee and determined he suffers fromorganic ED and a letter is received stating the medication for the ED is medically necessary.
The Alabama Court of Civil Appeals noted that, in this case, it was undisputed that the Employee did not suffer from one of the 6 conditions and a urologist had not evaluated him and determined he hadorganic ED. It was also undisputed that more than 5 tablets per 30 days was prescribed by Dr. Cockrell.
The Court of Civil Appeals first pointed out that while not clear, Rule 480-5-5-.15(15) appears to be a policy determination issued by the Department of Labor as to when ED will be compensable. The Court further noted that Rule 480-5-5-.15(15) was promulgated pursuant to §25-5-293, Ala. Code 1975, which states that insurance carriers and self-insured employers can adopt utilization review and engage in medical necessity determination, if conducted pursuant to policies, guidelines and regulations approved by the Department of Labor and Workers’ Compensation Medical Services Board.. In Overnite Transp. Co. v. McDuffie, 933 So. 2d 1092, 1098 (Ala. Civ. App. 2005), the Alabama Court of Civil Appeals ruled that a regulation promulgated pursuant to §25-5-293 which required an employer’s approval of all proposed referrals by the authorized treating physician did not override §25-5-77(a), which states employer’s are responsible for reasonably necessary medical treatment for injuries resulting from an accident that arose out of and occurred in the course of the employment.
Based on the holding in Overnite Transport, the Alabama Court of Civil Appeals ruled that Rule 480-5-5-.15(15) related to ED did not override §25-5-77(a). Therefore, since the evidence showed, and the Employer did not argue otherwise, that the ED was related to the work injury and the medication was reasonably necessary, the Court held that the Employer’s Petition was due to be denied.
Of note, The Alabama Court of Civil Appeals stated in a footnote to this opinion that the Alabama Workers’ Compensation Act provides for coverage of psychological or psychiatric conditions related to a physical injury. Therefore, it seems that the Court would find, if the issued presented itself, that §25-5-1(9) would provide coverage for psychological or psychiatric ED despite Rule 480-5-5-.15(15) stating otherwise.
My Two Cents:
Whenever there is a prescription for ED medication, it is advisable to focus on whether it is related and if the medication is reasonably necessary. You might consider having a urologist determine if the employee actually suffers from ED and provide an opinion as to the cause. You can also have the doctor weigh in on the reason for time release medication versus a tablet that could be taken as need with it being limited to 5 per 30 days. If the doctor opines that there is no medical reason for the time release medication, then it may be possible to argue that it is not reasonably necessary. Once you take §25-5-77(a) out of the equation, the Rule 480-5-5-.15(15) would apply which limits the employee to 5 tablets per 30 days for ED.
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ABOUT THE AUTHOR
The article was written by Joshua G. Holden, Esq. a Member of Fish, Nelson & Holden, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden and his firm are members of The National 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.
For all injuries occurring on and after July 1, 2015, the maximum workers’ compensation payable was raised to $813 per week, and the minimum was raised to $224 per week. This change was based on the Commissioner of Labor’s determination that the State’s average weekly wage for 2014 was $812.96.
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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.
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Imperial Aluminum-Scottsboro, LLC v. Taylor
Released July 24, 2015
The employee filed suit against the employer asserting a workers’ compensation claim, retaliatory discharge and the tort of outrage. Upon the case being filed the employer filed a Rule 21 Motion to Sever the workers’ compensation claim from the retaliatory discharge claim and outrage claim. This included a request that a new case number be assigned to the discharge and outrage claims. However, the trial court entered an order under Rule 42(b) bifurcating the issues and calling for separate trials only. A new case number was ever issued. The discharge and outrage claims were tried before a jury prior to the workers’ compensation case being heard. The outrage case was dismissed but the jury awarded compensatory and punitive damages to the employee based on the discharge claim.
The employer appealed the jury verdict awarding the employee compensatory and punitive damages as a result of his retaliatory discharge claim. The Alabama Court of Civil Appeals ruled that the retaliatory discharge verdict was not a final order and could not be appealed because the Court had not ruled on the workers’ compensation claim that was still pending under the same case number.
My Two Cents
Based on this ruling, we must assume that the opposite would apply and a ruling in a workers’ compensation case would not be final and appealable while related tort claims are still pending. This creates an issue for employers and employees in cases where the employer or employee wants to appeal an adverse verdict in a workers’ compensation case that also had a related tort claim still pending under the same case number. In cases were the employer is ordered to pay benefits, would the employer have to go ahead and pay the worker’s compensation benefits ordered despite it’s desire to appeal the decision or would the pending tort claim stay the workers’ compensation order and prevent the employee from recovering until the tort claim was decided and the deadline to appeal had run. In cases where the employee wanted to appeal and adverse verdict they would not be able to have their appeal on the workers’ compensation case heard until the tort claims were decided. In cases where this may present an issue, it may be advisable for the parties to request a Rule 21 Severance with a new case number instead of Rule 42(b) Separate Trial order where the tort and workers’ compensation claims remain under the same case number.
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ABOUT THE AUTHOR
The article was written by Joshua G. Holden, Esq. a Member of Fish, Nelson & Holden, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden and his firm are members of The National 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.
The Alabama Court of Civil Appeals recently reversed an order based on a trial court’s decision which only found the employee suffered a physical impairment to her shoulder and did not explicitly address loss of earning ability. InBillingsley v. City of Gadsden, the employee made a claim for workers’ compensation benefits for an injury to her shoulder, and other parts of her body, following an on-the-job automobile accident. Notably, the employee stopped working for the employer a few months after her accident, but prior to reaching maximum medical improvement. As a result, upon reaching MMI, she was not earning the same or greater wages than that which she was earning prior to the accident.
The court determined that the employee’s shoulder injury was compensable, but found that the other conditions had either resolved or were preexisting. In its order, the trial court determined the employee had sustained a 25% physical impairment to her shoulder, and awarded permanent partial disability benefits based on this finding of physical impairment. The decision was appealed.
The Appeals Court agreed that the body parts other than the shoulder were not compensable, but it disagreed with the trial court’s award of benefits based on a finding of physical disability, alone. The Appeals Court noted that an injury to an employee’s shoulder is not included in the Act’s schedule, and therefore, an award for a shoulder injury can only be upheld when the court makes an express finding regarding an employee’s loss of ability to earn. Although physical disability may be a preliminary foundation for finding loss of earning ability, the court must also explicitly address loss of earning ability when the employee has not returned to work earning the same or greater wages. By failing to address the employee’s loss of earning ability, the trial court’s decision provided no basis for an award. The case was therefore remanded with instructions for the trial court to determine the extent, if any, to which the employee’s injury affected her ability to earn income, and to award the employee benefits accordingly.
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About the Author
This post was written by Trey Cotney, Esq., of Fish Nelson & Holden LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of the National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at tcotney@fishnelson.com or any firm member at 205-332-3430.
On June 26, 2015, the Alabama Court of Civil Appeals released its decision in Pat Tate as Administrator of the Estate of Michael Traffanstedt v. Liberty Mutual Insurance Company and Dover Corporation. In 2006, Traffanstedt entered into an agreement to settle his workers’ compensation claim against his employer, Dover Corporation. That settlement left future medical benefits open. In 2011, Traffanstedt and Dover entered into a second settlement agreement regarding his future medical benefits, but the trial court rejected the settlement. In 2013, Traffanstedt and Dover again entered into an agreement for the settlement of his future medical benefits, and scheduled a hearing before the trial court for approval. Dover’s insurance carrier, Liberty Mutual, issued a check in the amount of $70,000 for the settlement, contingent upon court approval. However, Traffanstedt died before the settlement hearing, and Liberty Mutual refused to honor the check. Tate, the Administrator of Traffanstedt’s estate, sued Liberty Mutual and Dover, alleging breach of contract. Liberty Mutual and Dover took the position that they were not bound by the settlement agreement because it had not yet been court-approved prior to Traffanstedt’s death. They also asserted that the exclusivity provisions of The Alabama Workers’ Compensation Act barred Tate’s claims for breach of contract. The Trial Court entered Summary Judgment in favor of Liberty Mutual and Dover, and Tate appealed.
In its analysis, the Court of Appeals noted that workers’ compensation settlements, including the one at issue, are handled differently under the law than other settlements, such as those involving tort claims. The Court also stated that workers’ compensation settlements were different even than settlements involving a minor, in that a settlement contract between a minor and insurer is voidable at the election of the minor, whereas workers’ compensation settlements for less than the amount of compensation provided for in the Act are contingent upon Court approval. Therefore, the Court held that workers’ compensation settlements are not valid for any purpose until approved by the Court.
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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.
On June 26, 2015, the Alabama Court of Civil Appeals released its opinion in Todd Entrekin, Etowah County Sheriff v. Jerry Frederic Lasseter. At the trial court level, the employee petitioned the court for an order compelling the employer to provide medical treatment for his lower back. Treatment for the lower back had been provided by the employer prior to the settlement. When the parties settled, however, the settlement agreement specified that future medical was to remain available for T-11 and T-8 levels of his back. Despite this language, the trial court granted the petition and issued an order compelling the treatment. On appeal, the Court of Appeals reversed the trial judge because the language in the settlement agreement specifically limited the employee’s right to future medical benefits to the two specified levels of his spine.
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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 atmfish@fishnelson.com or by calling him directly at 205-332-1448.
On June 19, 2014, the Alabama Court of Civil Appeals released its second opinion inGoodyear Tire & Rubber Co. v. Bush (). The first time around the Court of Appeals addressed several issues. On appeal the first time the Court of Appeals remanded the case to the trial court since it had not issued findings of fact and conclusions of law to support it’s finding that the employee’s knee injury affected the use and efficiency of other parts of his body. On appeal the second time, the only issue was whether or not the trial court’s ruling that the employee’s knee injury should be removed from the schedule, allowing for a permanent and total disability finding, was supported by substantial evidence.
At trial testimony from the authorized treating physician was presented that established the employee would ultimately need a knee replacement and would have continued discomfort. The doctor also testified that the knee injury resulted in the following restrictions: 1) no lifting, pushing or pulling over 20 pounds; 2) no bending at the waist, crouching, kneeling, stooping, or squatting; 3) no climbing stairs, ladders, or poles: and 4) avoid navigating unprotected heights since the right knee had reduced balance and stability. The doctor at no point testified that the right knee affected any other body parts. The doctor also did not testify that the restrictions issued arose from problems the employee was having with other body parts. The medicals records presented at trial also indicated that the employee complained solely of right knee pain and dysfunction during each medical visit. The physical therapy records noted hip flexion and extension of 4/5 and 4+/5 but did not state this was an abnormality nor did it state it was due to the right knee injury. The employee testified that he injured his back in 1978 and would still occasionally experience flare-ups and have to take nonprescription pain medication. He testified that the preexisting condition also caused him to limp prior to the on the job injury. In fact, evidence revealed that the employee told his vocational expert that his occasional lower back pain was not related to the right knee. The employee did testify that he now takes Lortab for pain but only for his knee pain. At no time did the employee testify that the right knee injury affected other parts of his body and, in fact, testified to the contrary. Finally, the evidence was undisputed that the employee could not return to his former occupation due to the permanent light duty restrictions placed on him by his doctor.
Based, on the above testimony the trial court found the employee had a preexisting back condition but now, as a result of the knee injury, he could no longer perform his duties. They also found that the doctor stated the knee injury affected his body as a whole. As such, the trial court found medial testimony sufficiently connected dysfunction to other body parts as a result of the knee injury. The trial court stated that the doctor had no reason to issues restrictions related to the other body parts because the restrictions issued for the knee would encompass the restrictions to the other body parts. Finally, the court supported its decision based on its observation of the employee limping and using furniture to steady himself as he walked around the courtroom.
The Alabama Court of Appeals disagreed with the trial court and found there was not sufficient evidence to remove the knee injury from the schedule. The Court of Appeals stated that the decision comes down to a question of medical causation: Is there substantial evidence that the effects of the injury to the scheduled member extends to other body parts and that those effects cause or contribute to pain, limitations, or other symptoms in those body parts.Boise Cascade Corp. v. Jackson. The Court of Appeals acknowledged that medical testimony was not required to prove medical causation on the issue of the injury affecting or extending to non-scheduled body parts. The Court of Appeals also pointed out that medical causation could be established on this issue based lay testimony and/or observations of the trial court. However, in this case the Court of Appeals found that the medical testimony established that the knee injury did not extend into other body parts and the fact that the doctor gave a rating to the body as a whole did not mean the schedule could be avoided.Ex parte Drummond Co. (Alabama Supreme Court specifically stated an impairment rating to the body as a whole does not remove an injury from the schedule). The Court of Appeals noted that the doctor testified that the restrictions issued were for the right knee only.
Since the medical testimony did not support removing the injury from the schedule the Court of Appeals next examined the lay testimony. The Court of Appeals pointed out that the trial court can find medical causation without direct expert medical testimony, so long the other evidence, lay and circumstantial, is sufficient to support that finding. The Court of Appeals stated that this is to be determined on a case-by-case basis. The Court of Appeals ruled that, in this case, the lay testimony actually established that the knee injury did not affect other parts of the employee’s body and that the knee injury had not worsened the preexisting back injury. The employee himself testified that the knee injury did not affect other body parts or worsen his back condition.
The Court of Appeals next addressed the trial court’s observations, which it used to support its decision. The Court of Appeals pointed out that case law does allow a trial court to consider its own observations when determining extent of disability, to include how the employee ambulates during trial. However, the Court of Appeals stated that nothing in the case law allows the trial court to make a finding of medical causation solely on its own observations without any other supporting evidence, much less when the finding is disputed by other evidence as it was in this case. The Court of Appeals stated "a trial court may not rest a finding on speculation or conjecture, even if arising from its observations, that contradicts the positive evidence in the record."
Finally, the employee argued the Court of Appeals should reconsider its holding that vocational evidence cannot be used to circumvent the schedule. The Court of Appeals stated that this court has applied in past case the rule, which was issued by the Supreme Court in Ex parte Drummond Co., that a trial court cannot consider vocational disability as a factor in determining the exclusivity of the schedule. Therefore, the trial court’s ruling that the employee is permanently and totally disabled cannot be supported by the employee’s inability to return to his former job as a result of the scheduled knee injury.
My Two Cents
The Court of Appeals again established that this is not a chicken or egg situation, since you must first establish that an injury is removed from the schedule before evidence of vocational loss can be considered. As a result, simply not being able to return to work is not an exception to the list of scheduled injuries.
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ABOUT THE AUTHOR
The article was written by Joshua G. Holden, Esq. a Member of Fish, Nelson & Holden, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden and his firm are members of The National 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.
On April 2, 2015, Alabama Republican State Senators Del Marsh and Cam Ward submitted Senate Bill 330, which proposes drastic reforms to The Alabama Workers’ Compensation Act. If the legislature passes SB-330 and Governor Bentley signs it into law, it would be the biggest change to the Act since the 1992 Amendments. A full text of the proposed bill can be found , but the major proposed changes are outlined below.
MY TWO CENTS:
The last time we saw this many proposed changes to the Alabama Workers’ Compensation Act was on December 9, 2011, when State Senator Arthur Orr (R-Decatur) pre-filed a bill (SB77) for the 2012 legislative session. That bill never made it out of the Senate Business and Labor Committee. I would not expect this bill to make it out of committee either. There are simply too many controversial suggested revisions lumped together into one bill for there to be any chance of success. In order for such broad sweeping change to take place, it will be necessary to form a committee where all interested parties are represented and then hammer out a bill that is mutually acceptable before it is filed. That is the process that allowed the 1992 amendments to become law.
If SB-330 becomes law, § 25-5-11.1 of the Act would be amended to make it illegal for an employer to terminate an employee where the "substantial motivating factor" for the termination is that the employee instituted or maintained a workers’ compensation claim. Under the current law, the employee must prove that filing a workers’ compensation claim is the sole reason for the termination.
MY TWO CENTS:
Alabama is an employment at will state. This means you can fire someone for a good reason, a bad reason, or no reason at all. We currently have an exception to that rule in § 25-5-11.1 when the employee can prove that he or she was terminated solely for filing a workers’ compensation claim or filing a written notice of a safety rule. This means that if the employer had another valid reason for terminating the employee, then it is not considered to be a wrongful termination. If the employee can demonstrate that the other reason is a mere pretext, then it does not qualify as another valid reason and it would still be considered wrongful termination. To allow the new standard proposed above would have the effect of forcing employers to retain bad employees. It would also likely encourage more misconduct on the part of injured employees because of their new termination proof status.
§ 25-5-56 would be amended to provide a presumption that any settlement would be in the best interest of the employee, so long as the employee is represented by a licensed Alabama attorney. Additionally, any proposed settlement rejected by the Court would be reassigned to another judge and any statements or arguments made by the parties, witnesses or judge at the settlement hearing where the settlement was not approved would not be admissible in subsequent proceedings. Additionally, §25-5-56 would provide that advanced payments or payments of medical benefits of any kind shall not be considered an admission against interest or admission of liability.
MY TWO CENTS:
This is a good idea and would likely have unanimous support. The judge reassignment and confidentiality aspect of the bill was actually addressed by a committee appointed by then presiding judge of Jefferson County, Scott Vowell over 10 years ago. Both employee and employer interests agreed that it was a good idea and Judge Vowell adopted it as a local rule. The advanced payments aspect of the bill is already addressed by the Alabama Rules of Evidence. Evidence of such payments is already not admissible.
§ 25-5-57 would be substantially amended by increasing the number of weeks for permanent partial disability (PPD) benefits from 300 to 400 weeks. Additionally, permanent total disability (PTD) benefits would be cut off either after 500 weeks or after the employee attains 75 years of age – whichever is longer. §25-5-68 would be amended to completely remove the $220.00 per week statutory PPD cap, replacing it with a cap equal to 80% of the state’s average weekly wage or 100% of the employee’s pre-injury average weekly wage – whichever is less. To put that in perspective, an employee earning $1,000 per week who suffers a back injury resulting in a 50% permanent partial disability would be entitled to as much as $150,000. Under the current law, the employee would be limited to a maximum of $66,000.
MY TWO CENTS:
The $220 cap is low and probably needs to be bumped up at least to some degree. However, there needs to be a conversation between employee and employer interests on how best to effectuate such change. Simply introducing a bill proposing such drastic change does nothing more than make such change impossible during this legislative session. The proposed caps on PTD are a good start on how to negotiate such change but there needs to be more discussion.
§ 25-5-77 would be amended to provide that if an employee is dissatisfied with the initial treating physician selected by the employer and further treatment is required, the employee may select a new physician from a panel ofsix physicians selected by the employer (currently it is four). Additionally, § 25-5-77 would be amended to provide that if five years pass during which time an injured employee receives no medical treatment by his or her authorized treating physician for the injury, there would be a rebuttable presumption that any subsequent medical treatment would be unrelated to the injury. Additionally, after seven years without such treatment, there would be a conclusive presumption that the employee would not be entitled to any further medical treatment – with previously implanted medical or prosthetic devices being the sole exception. There would also be new provisions providing for pain management treatment and requirements that an injured worker receiving controlled substances sign a formal written agreement with the pain management physician. Under the proposed law, if the employee violates the agreement, her or she may lose his or her right to further pain management treatment. Another new provision would allow employers to select the pharmacy where injured workers’ get there prescriptions filled.
MY TWO CENTS:
It is hard enough to populate a panel of four in some of the more rural areas of Alabama. Requiring a panel of six could become impossible in some situations. Especially when you have an employee that gets kicked out of pain management or dismissed from the care of a treating physician for bad or inappropriate behavior. The five and seven year cut off periods sound nice but the reality is that we will see requests to return to the doctor every 4 years even when treatment is not needed. The pain management cut off aspect of the bill sounds nice except that it says may rather than shall. This means that it has absolutely no meat to it and renders the employer powerless to cut benefits when the employee is getting kicked out of pain management.
§ 25-5-88 would be amended to provide that the Courts must enter judgment within ninety (90) days of any workers’ compensation trial. Additionally, the bill would increase the maximum amount of attorney’s fees an injured worker’s attorney can charge, from 15% to 25%. It would also provide that a court can award up to 25% of the reasonable value of medical services, if the legal services provided for the injured worker are for the procurement of medical treatment previously denied.
MY TWO CENTS:
I have never understood why attorneys are limited to 15% on the award of indemnity benefits. I think that raising it is probably a good idea. However allowing a fee representing 25% of the reasonable value of denied medical services is a bad idea. If an employer exercised its right to deny a back injury claim and the judge subsequently ordered that it was compensable, the fee on the medical alone could end up being higher that the contingency fee on the indemnity award. Such an award would be more in the nature of a penalty and have the effect of scaring employers into paying for treatment that may not be owed.
§ 25-5-110 would provide compensation for psychological conditions which result from the hazards of the employment in excess of those ordinarily incident to employment in general, even if the psychological condition was not precipitated by a physical injury to the body.
MY TWO CENTS:
Alabama is a physical-mental state. This means you have to have a physical injury before you can successfully claim any type of psych condition. You do not have to have a significant physical injury but you have to have been physically injured at least to some degree. To allow employees to claim psych without the physical injury requirement would open the flood gates of psych claims.
§ 25-5-293 would be amended to require that utilization reviews be conducted by a board certified physician of the same specialty, licensed in Alabama.
MY TWO CENTS:
This would not be a terrible idea if it also included a presumption that such an opinion by a UR doctor would be considered to carry the same weight as the authorized treating physician. As it stands now, Alabama judges almost always side with the treating physician so it is unclear what this part of the bill is trying to accomplish.
Changes to § 25-5-311 would amend the composition of the Workers’ Compensation Medical Services Board. Instead of five licensed Alabama physicians, the Board would be comprised of two claims professionals chosen by the Alabama Workers’ Compensation Organization (AWCO), two employer representatives chosen by the Alabama Counsel of Association of Workers’ Compensation Self-Insureds’ Fund, two physicians and two provider practice managers chosen by the Medical Association of the State of Alabama, four hospital representatives chosen by the Alabama Hospital Association, a physical therapist chosen by the Physical Therapist Association of Alabama, two "employee representatives", chosen by the Alabama Association for Justice (the trial lawyers), and one judge chosen by the Alabama State Bar. Medical providers, other than hospitals, would be reimbursed at a rate equal to an amount 7.5 % greater than the rate customarily paid by the largest health care service plan in the state. Hospitals would be entitled to a maximum reimbursement rate of 1.2 times the Medicare National Base Rate multiplied by the Diagnosis-Related Group Weight Value as published by Medicare. Brand name drugs would be reimbursed at a rate equal to the average wholesale price, plus $5.00. Generic drugs would be reimbursed at 30% less than the wholesale price, plus $5.00. Additionally, injured workers not be allowed to have the medication prescriptions filled in any facility or business establishment in which the prescribing physician has a financial interest.
MY TWO CENTS:
This probably gives us a good road map on how to form a committee that can actually effectuate change that is mutually acceptable to all. Without all interested parties at the table negotiating a true compromise, nothing is likely to ever be accomplished. For an example of how it was done in 1992, I suggest that you read the first four paragraphs of Tuscaloosa attorney Steve Ford’s articleNew Alabama Workers’ Compensation Act published in The Alabama Lawyer in September of 1992. If you would like a copy, please shoot me an e-mail and I would be more than happy to send you one.
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ABOUT THE AUTHORS
The summary of SB-330 was written by Charley Drummond and the My Two Cents portion was written by Mike Fish. Both are attorneys at Fish Nelson & Holden, LLC, 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. The firm is a member of The National Workers’ Compensation Defense Network (NWCDN), which is a national network of reputable law firms organized to provide employers and insurers access to 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, cdrummond@fishnelson.com, or (205) 332-3430.