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 April 6, 2020 at 10:00am (CST) Minnesota attorney, Mark Kleinschmidt, will present a timely and comprehensive webinar entitled"COVID-19: FACTS and FEAR for a Workers' Compensation Claim" at the Center for Education Excellence. This is the first of a series of free webinars sponsored by WorkersCompensation.com in collaboration with the National Workers' Compensation Defense Network.
The webinars are free. All you have to do is register.
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 March 26, Governor Kay Ivey issued a proclamation that temporarily allows notaries who are licensed attorneys or operating under the supervision of a licensed attorney to notarize signatures through videoconferencing programs and confirm the signatures of witnesses who participate virtually through videoconferencing as if they were physically present at the signing. In addition, any person who witnesses a document through videoconferencing technology can now be considered an “in person” witness, provided that the presence and identity of the witness is validated by the notary at the time of signing using the same identification that is required under current law. The official date and time will be the date and time when the notary witnesses the signature via videoconference. Further, all documents must be returned to the notary for certification and execution. These new temporary rules will remain in effect for the duration of the public health emergency unless rescinded or extended by proclamation.
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.
New Jersey lawyer and nationally recognized workers’ compensation guru, John Geaney recently posted a COVID-19 Q&A on his award winning Blog site. The questions are certainly relevant nationally and so the following are Alabama specific answers.
Question 1: What happens when an employer sends its employees home for several weeks out of a general concern for safety and for prevention of contagion? Must the employer pay workers’ compensation benefits?
Answer: No, but the employee will likely be entitled to unemployment benefits.
Question 2: What if an employer advises an employee that he or she must be quarantined because the employee may have been exposed to someone at work who has the coronavirus? Must the employer pay workers’ compensation benefits?
Answer: No, because the mere possibility of an injury or occupational disease is insufficient to trigger coverage under the Act.
Question 3: What if the government shuts down a company for a 30-day period and the company has to send everyone home for that period of time with no work available from home. Does the employer owe workers’ compensation benefits?
Answer: No, but the employee will likely be entitled to unemployment benefits.
Question 4: What if an employee becomes worried that he has symptoms similar to that of the coronavirus and refuses to come to work? He quarantines himself for 14 days out of concern for his safety and that of fellow employees. No one at work has the virus and it is unclear where the employee may have been exposed, if there was exposure at all. Does this generate an obligation to pay workers’ compensation?
Answer: No, because the mere possibility of an injury or occupational disease is insufficient to trigger coverage under the Act.
Question 5: Along the lines above, suppose the employer finds out that the HR Director’s son just returned from Italy, where the number of deaths from coronavirus have now topped those in China. The employer advises the HR Director that she must quarantine for 14 days. Are workers’ compensation benefits due?
Answer: No, because the mere possibility of an injury or occupational disease is insufficient to trigger coverage under the Act.
Question 6: What if two police officers alternate use of a patrol vehicle. On Monday, Officer Chris is driving the vehicle alone and begins to experience symptoms of coronavirus later that evening, unknown to Officer Aiello, who then drives the vehicle on Tuesday alone. Later in the evening Officer Aiello finds out that Officer Chris just entered quarantine for suspected coronavirus. Officer Aiello sees her primary care physician who recommends a quarantine period for her. Officer Aiello files a first report of injury based on potential exposure to the virus in the patrol vehicle when she drove it. Is Officer Aiello entitled to payment of temporary disability benefits?
Answer: No, because the mere possibility of an injury or occupational disease is insufficient to trigger coverage under the Act. Further, in Alabama, an occupational disease is defined as “a disease arising out of and in the course of employment… which is due to hazards in excess of those ordinarily incident to employment in general and is peculiar to the occupation in which the employee is engaged but without regard to negligence or fault, if any, of the employer.” Therefore, for COVID-19 to be considered compensable in Alabama, the employee would have to be able to prove that contracting it was due to hazards in excess of those ordinarily incident to employment in general and that it is peculiar to the employee’s occupation. It will be difficult for an employee to show that contracting the virus resulted from a risk of employment. The reason being that, like the flu, you face the same sort of risk when you go home or when you walk about in public. Some state laws have presumptions for health care workers or first responders. Alabama is not one of those states. Without a statutory presumption in place, it would be nearly impossible to prove causation.
Question 7: Suppose a hospital floor nurse has been working for the past month with patients who have been tested for possible coronavirus. So far all the tests have been negative. The nurse is diagnosed with coronavirus herself, becomes seriously ill and is hospitalized. She files for workers’ compensation benefits for her lost time and medical bills. Is she entitled to workers’ compensation benefits?
Answer: Probably not. See answer to #6.
Question 8: Given that tens of thousands of employees are now working from home in Alabama due to state and federal guidelines, what if an employee gets injured at home and files a workers’ compensation claim?
Answer: The Alabama Workers’ Compensation Act does not specifically address telecommuter/home based workers and there are not currently any high court opinions in Alabama addressing the issue. Courts in other states have distinguished telecommuters from individuals who may just happen to be performing work at home on a given day. In those states, once it was established that the employee and employer entered into a telecommuting arrangement, the hazards of the home were considered to be work place hazards. Written telecommuting agreements that dictate hours of employment, areas of the house that are considered work space, and rules concerning prohibited activity are recommended to help employers and employees know what is and is not considered work activity.
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 Alabama Department of Labor Workers’ Compensation Division seminars scheduled for April 9th in Orange Beach and April 23rd in Birmingham are cancelled. Per Director, Steve Garrett, they are actively working on securing alternate dates. Stay tuned. We will post the new dates as soon as they are available.
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 March 18, 2020, Alabama Supreme Court Chief Justice, Tom Parker, issued an Order setting forth temporary rules regarding workers’ compensation settlements. Per the Order, the following rules will be in effect through April 16, 2020:
The above referenced Order was issued in the wake of a March 13, 2020 Order that suspended all in-person court proceedings through April 16, 2020.
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 March 18, 2020, the Director of the Alabama Department of Labor (ADOL) Workers’ Compensation Division, Steve Garrett, released a Memorandum concerning the Ombudsman Program. ADOL Ombudsmen travel the state and assist with finalizing settlements and also act as mediators at no cost to the parties. Per the Memorandum, the ADOL is constantly monitoring the ongoing developments of COVID-19 and the effect it’s having on the ADOL and the services it provides. Although the Ombudsman Program is continuing to operate, the ADOL is making the following modifications to the procedures normally in place.
To reschedule mediation dates or to alter plans for scheduled mediations during this time, it is asked that you contact your ombudsman. For a list of ombudsman with contact information and the areas of the state that they cover, please e-mail me at mfish@fishnelson.com and I will be happy to send you one.
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 Alabama, an occupational disease is defined as “a disease arising out of and in the course of employment… which is due to hazards in excess of those ordinarily incident to employment in general and is peculiar to the occupation in which the employee is engaged but without regard to negligence or fault, if any, of the employer.”
Therefore, for the coronavirus to be considered compensable in Alabama, the employee would have to be able to prove that contracting it was due to hazards in excess of those ordinarily incident to employment in generaland that it is peculiar to the employee’s occupation.
It will be difficult for an employee to show that contracting the virus resulted from a risk of employment. The reason being that, like the flu, you face the same sort of risk when you go home or when you walk about in public. Some state laws have presumptions for health care workers or first responders. Alabama is not one of those states. Without a statutory presumption in place, it would be nearly impossible to prove causation.
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.
Alabama Court Appearances Temporarily Suspended
On March 13, 2020, the Alabama Supreme Court issued an administrative order which suspended all court appearances for 30 days. On March 15, 2020, the Court issued a second order which clarified that the first order only applied to in-person court proceedings.
Alabama Department of Labor Ombudsman Availability
The Alabama Workers’ Compensation Reform Act of 1992 established an Ombudsman Program. Ombudsmen travel the state and assist with finalizing settlements and also act as mediators at no cost to the parties. Currently, it has been left up to the individual ombudsmen whether or not they wish to travel or attend in person mediations or benefit review conferences.
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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.
Alabama State Representative Wes Kitchens (R-Arab) recently introduced House Bill 77, which would require employers and state agencies to use the guidelines specified by the Internal Revenue Service in order to determine whether a worker is an “employee” or an “independent contractor” for the purposes of employment benefits and tax liabilities. HB-77 would specifically require the use of the IRS’s guidelines when determining eligibility for workers’ compensation benefits.
Under current Alabama law, an employee seeking workers’ compensation benefits must prove the existence of contract for hire (either express or implied). Under current Alabama law, the worker may be considered an employee if the person to whom he provides services has reserved the right to control the manner in which those services are performed. Griffith v. Adams, 674 So.2d 556 (Ala.Civ.App. 1995). The Alabama Courts have recognized that a reserved right of control can be inferred from a test which considers four basic factors: (1) direct evidence which demonstrates a right or exercise of control; (2) the method by which the individual receives payment for his or her services; (3) whether equipment is furnished; and (4) whether the individual has the right to terminate the relationship at any time. See, Wheeler v. Wright, 668 So 2d 779 (Ala.Civ.App. 1995); Martin v. Lawrence County, 628 So.2d 652 (Ala.Civ.App. 1993);Miller v. Mayfield Timber Co., 624 So.2d 185 (Ala.Civ.App. 1993); Lacey v. American Shell Co.,Inc., 628 So.2d 684 (Ala.Civ.App. 1993); Ex parte Curry, 607 So.2d 230 (Ala. 1992). However, if HB-77 is passed and signed into law, it would significantly expand the definition of “employee” for purposes of workers’ compensation benefits. Alabama courts would also have to consider many other factors, including: whether the worker must follow instructions; whether training was provided; whether the worker’s services were rendered personally; whether the worker hires, supervises, or pays assistants; the duration of the relationship; whether the work is performed on the premises of the firm paying the worker; the frequency of payment for the work; and whether the worker must provide regular reports.
The full text of HB-77 can be found here. The IRS guidelines can be found here. We will monitor the status of HB-77 as it makes its way through the Legislature, and will provide updates on this blog.
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 matters, as well as matters involving OSHA and FMCSA compliance. 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.
Alabama’s Workers’ Compensation Act has an exclusivity provision that shields employers from tort claims resulting from injuries, or death, caused by an accident or occupational disease that is related to workers’ employment. This is a fundamental principle of the Act, which is premised on employers’ accepting a duty to provide certain benefits and coverage to employees in exchange for employees being barred from asserting tort claims, like negligence or wantonness.
On February 28, 2020, the Supreme Court of Alabama released its decision in the case ofEx parte Drury Hotels Company, LLC, Montgomery Circuit Court, CV-18-902336, in which the Court confirmed the burden of proof an employer must meet to prevail on a Motion to Dismiss that asserts the employee cannot prevail on a tort claim because the injury alleged is covered by the exclusivity provision of the Workers’ Compensation Act. The Court held that for an employer to prevail, the defense must be clear from the face of the Complaint.
Here, the Court determined that, based on the Complaint, a determination could not be made on whether the injuries alleged were related to the employment, or instead were the result of a personal attack, and that additional fact-based inquiry was needed. Because injuries determined to be the result of a personal attack are not covered by Alabama’s Workers’ Compensation Act, the Court was not able to confirm that the exclusivity provision applied.
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.