NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
The Alabama 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.
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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.
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!
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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.
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.
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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.
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.
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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.
Effective January 1, 2021, the mileage reimbursement rate for Alabama will be 56.0 cents per mile, a 1.5 cent decrease from 2020.
On December 21, 2020 the Alabama Supreme Court issued Administrative Order No. 9 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 April 30, 2021:
In addition to the above, the rules that provide for remotely swearing in and taking witness testimony are also extended.
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 December 11, 2020, the Alabama Supreme Court rendered a decision finding that collateral estoppel does not violate the constitutional right to a trial by jury. This finding was based on a review of a Motion for Summary Judgment Order granted in favor of the employer by the Circuit Court of Shelby County, Alabama, in a retaliatory discharge case.
In that case, the employee was terminated for misconduct according to the employer. The termination occurred after a worker’s compensation claim had been filed. The employee ultimately filed for unemployment, and the city defended the unemployment claim, asserting that he was not due unemployment because he was terminated for misconduct. The record clearly showed that the employee and employer proceeded to a hearing with both parties presenting evidence and securing testimony of witnesses before an administrative officer. The initial ruling by the unemployment board was that the employee was terminated for misconduct. The employee appealed this decision on multiple levels, but he ultimately chose not to move forward and appeal it all the way to the Circuit Court. The employee instead amended his complaint in his workers’ compensation case to add a retaliatory discharge claim shortly before the final decision was issued by the unemployment board. The employer filed a Motion for Summary Judgment which was granted but then set aside due to service issues. The Summary Judgment was reinstated and ultimately denied by the court, which found that it was not ripe for a decision at that time. Discovery in that case went forward, and the employer ultimately renewed its Motion for Summary Judgment. The employee filed its opposition arguing that he did not have adequate opportunity to litigate the issue and that applying collateral estoppel would violate his constitutional right to a trial by jury.
The Supreme Court held that, for collateral estoppel to apply in these types of cases, the same parties must be identified in both actions. In addition, the parties must have adequate opportunity to litigate the issues upon which collateral estoppel is being based. The Supreme Court ultimately determined that the employee had adequate opportunity to argue that he was wrongfully terminated in his unemployment case. This included the chance to submit evidence as well as call witnesses to testify. Even though the employee did not take advantage of his opportunity to litigate the issue, collateral estoppel could still be applied. Therefore, the decision at the unemployment hearing that he was terminated for misconduct prevented the employee from now arguing he was terminated solely because he filed a workers’ compensation claim.
The Supreme Court then addressed the employee’s argument that applying collateral estoppel in cases where the prior decision was administrative only and not decided by a jury was a violation of his constitutional rights. The Alabama Supreme Court stated that while it had not addressed the issue, multiple other courts had, including the United States Supreme Court. The Alabama Supreme Court cited cases which held that courts have not hesitated to apply res judicata when an administrative agency was acting in a judicial capacity to resolve disputed issues of fact involving the same parties. B&B Hardware, Inc. v. Hargis Industries, Inc., 575 U.S. 138, 150, (2015) in which the United States Supreme Court stated, “The Court has already held that the right to a jury trial does not negate the issue-preclusive effect of a judgment, even if the judgment was entered by juryless tribunal”. Id. The Alabama Supreme Court stated that the United States Supreme Court held that the 7th Amendment does not prevent competent tribunals from issuing judgments that have a preclusive effect. Therefore, the Alabama Supreme Court held that if the administrative process in question had the characteristic of adjudication, there would be no reason why the administrative proceeding should not have the same preclusive effect that a court decision would have. The Court noted that the reasoning behind this was that the administrative proceeding that the employee was involved in had the essential elements of adjudication which included adequate notice to persons who were bound by the adjudication and the right on the behalf of the party to present evidence and legal arguments to support their contentions and/or to rebut evidence and argument made by the opposing party. As a result, the Alabama Supreme Court ultimately determined that collateral estoppel would still apply and would not violate the constitutional right to trial by jury in cases where an employer seeks to have the decision in an unemployment hearing preclude a retaliatory discharge claim under the Workers’ Compensation Act.
MY TWO CENTS
As we have noted in prior blog posts, decisions in unemployment hearings can be beneficial in a workers’ compensation case that involves a retaliatory discharge claim. For this reason, we recommend to all employers that they secure legal representation and fully participate in the unemployment hearing to secure a favorable decision.
ABOUT THE AUTHOR
The article was written by Joshua G. Holden (with contributions from all attorneys with Fish, Nelson & Holden, LLC), 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
Membership in the AWCO offers several professional and social opportunities annually to interact with other workers' compensation professionals. Usually, the highlight of the year is the annual AWCO Spring Conference where its members come together for two days of education, fun, and fellowship. This year, the pandemic forced the conference to be postponed to November, but it was held and held in person (and virtually). Hopefully, things will improve, and the conference can, again, be held in person in 2021. Membership is only $75 if paid prior to February 28, 2021. After that, the annual fee goes up to $150. Once you are an AWCO member, the Annual Conference is free. You pay nothing, nada, zero, zilch to register and attend. You can complete your membership registration at www.awcotoday.com/membership. We hope to see you at the conference and in person in 2021!
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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.
We make no bones about it; this is one of the stranger stories to be posted on the Alabama Workers’ Compensation Blawg. It wasrecently reported by WorkersCompensation.com that one of the world’s leading hip and knee experts began the act of keeping his patient’s bones in the 90’s. Since that time, he has held on to bones from close to 5,224 surgeries. The Birmingham doctor, known to have a list of famous athletes as his patients, is known as the “Father of Modern Hip Resurfacing” and invented a widely used hip resurfacing technique and developed a procedure known as the Birmingham Knee Replacement.
If you live in or near Birmingham and had hip or knee surgery in the last 25 years, you are probably wondering if it was by this famous doctor and if he pilfered one of your bones. The odds are against it, unless your surgery took place across the pond. You see, the doctor’s name is Dr. Derek McMinn and he was suspended from Edgbaston Hospital in Birmingham, United Kingdom.
If Dr. McMinn did perform surgery on you and you want your bone back, it may take awhile for the hospital to process your request. They are apparently operating with a skeleton crew.
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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.