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 July 30, 2021, the Alabama Court of Civil Appeals released an opinion in Kevin Patrick v. Mako Lawn Care, Inc. wherein it addressed the compensability of an assault by a co-employee. The altercation was the result of a feud between two lawn care crews. The member of one crew took the other crew’s mower home for personal use. To retaliate, a member of the other crew did the same thing. After that, words were exchanged. The situation escalated into a physical fight resulting in injury. The trial judge entered judgment for the employer because the altercation did not arise out of the employment, the employer did not benefit from the altercation, and that the plaintiff was an active participant and the aggressor. The Court of Appeals agreed that the law was correctly applied to the facts but that it did not necessarily agree with all the language and reasoning in the trial court’s final order.
My Two Cents:
We may not have heard the last of this Lawncare Crew Feud. The plaintiff argued that the Court’s reliance on a 1927 decision as controlling was misplaced because there were more recent decisions with a more liberal view on work altercations. The Court, however, noted that the 1927 case was still controlling and the plaintiff would have to petition the Alabama Supreme Court to overrule the older case. Unless the parties reach a settlement, that the plaintiff may very well do that.
----------------
About the Author
This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.
On July 15, 2021, the presiding judge of the 10th Judicial Circuit of Alabama, Jefferson County, entered an Administrative Order which extended the previously entered Order concerning the holding of non-jury court proceedings by video or audio conference.
The previous Order provided Jefferson County Circuit Judges with discretion to hold virtual court hearings in all non-jury proceedings which included workers’ compensation cases.
The previous Order can be accessed at the following link:
administrative-order-2020-031-virtual-court-proceedings.pdf (alacourt.gov)
--------------------
About the Author
This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third-party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.
As of July 1, 2021, the maximum workers’ compensation payable is increased to $983.00 per week and the minimum is increased to $270.00 per week. The memorandum regarding the new minimum and maximum rates issued by the Director of the Alabama Department of Labor Workers’ Compensation Division, Steve Garrett, can be accessed at https://labor.alabama.gov/docs/guides/wc_weeklywage.pdf.
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.
In exchange for providing no fault workers’ compensation insurance, Alabama employers are afforded the protections of the Exclusivity Doctrine. While this doctrine serves to insulate employers from liability claims, Alabama Code § 25-5-11 provides a means for recovery against supervisors and safety personnel. To prevail, the employee must prove by clear and convincing evidence that the injuries resulted from a co-employee’s willful conduct. § 25-5-11(c)(1) requires a finding that the co-employee acted in a manner where he or she knew or should have known that someone would be injured. § 25-5-11(c)(2) requires a finding that the co-employee committed an overt act, such as removing a safety device that exposed the plaintiff to injury.
The Alabama Supreme Court recently reaffirmed the difficulty of proving co-employee willful conduct claims in its Means v. Glover opinion. In Means, the employee was burned by molten lead. At the time of the incident, he was using a forklift to pour a 55-gallon drum of sodium hydroxide into a hot kettle of molten lead and other metals. Because the process was newly developed and implemented, he did not know that he was adding the sodium hydroxide too quickly, or that doing so would cause it to react with the aluminum, form hydrogen gas, and explode. The employee asserted that his co-workers should have known of the dangers of mixing the substances, and that a safety windshield should have been installed on the forklift. However, he failed to produce the requisite clear and convincing evidence that his co-workers knew of the danger and instructed him to proceed with pouring the sodium hydroxide, with purpose of causing injury. For this reason, the trial court entered judgment in favor of the employer on the § 25-5-11(c)(1) claim.
Judgment was also entered in favor of the employer on the § 25-5-11(c)(2) claim because the evidence established that the forklift was purchased without a safety windshield. To prevail under this statutory provision, the safety mechanism must have been removed. There is no provision that an available safety mechanism must be added.
The Alabama Supreme Court found no error and affirmed the trial court’s Order.
About the Author
This blog submission was prepared by Karen Cleveland, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Cleveland by e-mailing her at kcleveland@fishnelson.com or by calling her directly at 205-332-1599.
The Alabama Court of Civil Appeals recently released an opinion in In re: Laura Register v. Outdoor Aluminum, Inc. wherein it reversed summary judgment in favor of the employer in a retaliatory discharge case. While the decision itself did not create any new legal precedent, or narrow, or expand prior holdings, it did highlight the importance of communication between the employer and the workers’ compensation claim handler.
In Register, the non-retaliatory reason asserted as the basis for the termination was absenteeism. In the usual case, assuming the employee was absent more than what would typically be allowed, such a reason would be considered legitimate and not pre-textual. In Register, however, since the employee had not yet been medically released to return to work, the Court of Appeals determined that there was a contradiction between the work status and the alleged absenteeism. As such, the Court held that there were material issues in dispute that needed to be decided by a jury.
My Two Cents: As the prison captain said to Paul Newman’s character in Cool Hand Luke, “What we’ve got here is a failure to communicate.” The effective handling of a workers’ compensation claim involves a partnership between the employer and the claims handler. As with any good partnership, communication is the key to success. In many cases, years of litigation and the time and expense associated with it can be avoided with a single e-mail or phone call.
-------------
This blog submission was prepared by Karen Cleveland, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Cleveland by e-mailing her at kcleveland@fishnelson.com or by calling her directly at 205-332-1599.
The Alabama Department of Labor (ADOL) requires all people handling lost time workers’ compensation claims to complete 8 hours of Continuing Education (CE) per calendar year. Medical only adjusters are exempt from this requirement.
Typically, the 8 CE hours must be completed in person. As the result of the pandemic and associated travel restrictions, arrangements have been and will continue to be made for virtual attendance. Per ADOL Workers’ Compensation Division Director, Steve Garrett, the Division will make a mid to late year decision on whether to, again, offer a webinar option. He further stated that no one will lose their Alabama WC Division claims handling privileges if their employer restricts their travel throughout 2021.
Lost time claims handlers must be in full compliance with the CE requirements in order to be able to submit first reports of injury electronically.
In addition to the CE requirements imposed by the ADOL, depending on whether the claims handler is handling claims for a private insurer, a self-insured entity, or handling claims as an independent adjuster, he or she may also have to satisfy the licensing requirements of the Alabama Department of Insurance (ADOI).
A salaried employee of an insurer who adjusts only claims for that insurer (“company adjuster”) does not have to be licensed by the ADOI. Company adjusters are not required to have a license to adjust claims of any sort for their employing insurers. An adjuster that handles workers’ compensation claims for self-insured plans is also exempt from the ADOI’s licensing requirements. However, an independent adjuster who handles only workers’ compensation claims must be licensed through the ADOI.
Satisfaction of an adjuster’s home licensing state’s requirement will relieve an adjuster from his or her duty to complete the ADOI’s CE requirement (if the home state reciprocates and gives credit to Alabama residents on the same basis).
Individuals licensed in the state of Alabama who are not exempt must satisfactorily complete courses as may be approved in accordance with regulation in the minimum number of 24 hours (3 of which should be ethics) per biennial reporting period.
Excess credit hours earned in the previous biennial renewal period cannot be carried over to the next reporting period.
The 8 hours of CE required by the ADOL cannot be applied toward the adjuster’s 24 hours of required CE unless they are earned as the result of attending the 3-day Alabama Self Insured Association conference in San Destin, Florida or the 3-day conference put on by the Alabama Workers’ Compensation Organization.
----------------------
About the Author
This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third-party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.
On April 28, 2021, the Alabama Supreme Court issued Administrative Order No. 10 which extended its previous orders concerning workers’ compensation and taking witness testimony remotely during the pandemic. This means that the following rules will be in effect through July 29, 2021:
Interestingly, the Alabama Supreme Court declined to extend the emergency rule that provided for remotely swearing in and taking witness testimony.
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.
Ten years ago, we posted a blog article entitled Driving Distracted Should be a Safety Rule Violation. Since that time, this deadly roadway epidemic has only gotten worse. In 2019, distracted driverskilled 3,142 people. This represented a 10% increase from 2018. Although teenagers represent the largest percentage of offenders, it is done by all types and ages. The main offendersconsider themselves good drivers and rationalize that they are only looking away for a few seconds.
April is Distracted Driver Awareness Month. Think about that when you are on the road. No text message is worth an accident resulting in injury or death. Even if you are not distracted, it is important to constantly be aware of all the drivers around you that are.
Be safe out there!
----------------------------------
About the Author
This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.
On February 26, 2021, the Alabama Court of Civil Appeals released its opinions concerning three petitions for mandamus that arose out of an action for contempt. Specifically, the plaintiff was awarded permanent and total disability benefits in a 2012 lawsuit against his employer. In 2020, the employee filed a post judgment motion for contempt due to the alleged systematic late payment of his weekly benefits. Although the lion’s share of the opinion addressed procedural and jurisdictional matters not specific to workers’ compensation, Judge Terry Moore pointed out, in his dissenting opinion, that the Legislature already provided for a remedy when indemnity payments are delayed. Alabama Code § 25-5-59(b) provides for an automatic 15% penalty if any indemnity payment that is owed is not paid within 30 days. Further, § 25-5-86(1) provides that, if an employer defaults on its obligation to pay indemnity benefits, the employee can petition for the remaining payments to be accelerated, reduced to present value, and paid in lump sum. As such, it was Judge Moore’s opinion that the Alabama Workers’ Compensation Act precludes an employee from using a contempt proceeding as an additional remedy when indemnity payments are not timely made.
-------------------
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.
At least, that was the opinion of the Alabama AG on February 3, 2003. A few months prior to that, President Bush announced the National Smallpox Vaccination Program, a smallpox vaccination plan that would, in phases, vaccinate a significant number of Americans against a potential release (via act of terrorism) of smallpox into the population. Since it was anticipated that there would be side effects associated with the vaccinations, the Director of the Alabama Department of Industrial Relations (now Department of Labor) asked the AG for an opinion on whether the side effects would be covered as compensable per the Alabama Workers’ Compensation Act. In his opinion letter, the AG conceded that there were no Alabama cases on point. The AG looked at how the courts of other states had handled the issue and ultimately concluded that Alabama courts would find the side effects to be compensable. Of course, the AG’s opinion is not law. It is just an opinion and, just like lawyers, everybody has one.
So how would an Alabama Circuit Court Judge handle this issue? Certainly, everyone (sans antivaxxers) has an interest in being vaccinated. While employers see the benefit of an immune work force that is less susceptible to sickness or death, they also see the same benefit with employees that are healthier due to nutritious eating, regular exercise, or simply taking their Flintstone vitamins every morning.
Whether or not the side effects associated with the vaccine would be considered compensable will probably come down to whether an employer requires or encourages its employees to be vaccinated. On the flipside, employers will defend against such claims by trying to establish that the employee took the vaccine for reasons unrelated to work. Courts will most likely focus on the type of employment, when and where the vaccine was administered, who paid for it, whether incentives or bonuses were offered as inducements, and whether the employee would have taken the vaccine anyway.
As with the 2003 AG letter, this is just an opinion and you know what they say about those.
-----------
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.