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 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.
Regardless of whether a workers’ compensation settlement is finalized before a Circuit Court Judge or an ADOL Ombudsman, the ADOL Workers’ Compensation Division, must receive a completed WC-4 Claim Summary Form that identifies the county where the settlement was finalized. This is a non-issue for court approved documents since they always reflect the county of filing. However, for ombudsman settlements it is also required that the county be reflected on the WC-4.
Forms are to be sent to:
Earlene Holland: earlene.holland@labor.alabama.gov
Phone or FAX 334-956-4031
Christine Dunn: Christine.dunn@labor.alabama.gov
Phone or FAX 334-956-4032
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 is a physical-mental state which means you have to have a physical injury in order to be able to recover mental injuries. Ten years ago,the Alabama Court of Civil Appeals held that PTSD could be recoverable as an occupational disease provided that there was a corresponding physical injury. Lawmakers are now proposing to amend the Alabama Workers’ Compensation Act to make an exception for first responders. H.B. 44 would apply to law enforcement officers, firefighters, paramedics, emergency dispatchers, and emergency medical technicians of an emergency services agency or entity. The bill was referred to the House of Representatives committee on Ways and Means General Fund.
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.
Earlier today (2/28/20), the World Health Organization chief Tedros Adhanom Ghebreyesus told reporters that the risk of spread and impact of the coronavirus is now very high as a “global level”. So how will this affect workers’ compensation in Alabama? Most likely in a similar manner to how it will affect workers’ compensation in New Jersey. The below article is re-published with the permission of nationally known New Jersey attorney and blogger, John Geaney. It was originally published earlier today on Mr. Geaney's New Jersey Workers' Comp Blog (http://njworkerscompblog.com). Alabama does not have the statutory presumptions for public safety workers that New Jersey does. However, similar to New Jersey, 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 general and that it is peculiar to the employee’s occupation.
The Potential Impact of the Coronavirus on New Jersey Workers’ Compensation
Many readers of this blog have inquired recently about the potential impact of the novel coronavirus on workers’ compensation claims. Should a surge of serious coronavirus illnesses occur among New Jersey workers, would such claims be considered compensable under the law?
The answer to this question depends on whether one is or is not a public safety worker. Most New Jersey workers would not meet the test of a public safety worker. For non-public safety workers, the likelihood of successfully maintaining an occupational disease claim under N.J.S.A. 34:15-31 would be very low. The reason is that a claimant must show that the medical condition, for instance pneumonia, is more likely than not produced by causes which are characteristic of or peculiar to one’s occupation in a material degree. This test is hard to meet because it is next to impossible to identify the source of the virus. Many people who do not even know they have Covid-19 and are not yet symptomatic may be infecting large numbers of individuals in all sorts of locations. For an infected employee, it would be hard to know whether one was exposed to the virus at work, in a store or some other places of human contact. It would almost always be pure speculation where the exposure occurred.
Public safety workers, on the other hand, will have a strong argument for compensability. The legislative intent of the Twenty First Century First Responders Protection Act was to protect public safety workers. That law became effective in New Jersey on July 8, 2019. This landmark legislation observes that “public safety workers are required by necessity to take great personal risks of serious injury, illness and death in their duties to protect the people of New Jersey from the dangers of catastrophic emergencies, including, but in no way limited to, terrorist attacks and epidemics.” Unfortunately, the coronavirus has the potential to reach epidemic levels in the USA just as the virus has in China and other nations.
N.J.S.A. 34:15-31.4 defines a public safety worker broadly to include not just fire and police officers, but also “a Community Emergency Response Team approved by the New Jersey Office of Emergency Management, or a correctional facility, or a basic or advanced medical technician of a first aid or rescue squad, or any other nurse, basic or advanced medical technician responding to a catastrophic incident and directly involved and in contact with the public during such an incident. . .” There are likely to be thousands of public safety workers in New Jersey who will be part of state efforts to contain any potential rapid spread of this virus.
N.J.S.A. 34:15-31.5 provides a presumption of compensability in subsection a. if a public safety worker can demonstrate exposure at work to “the excretions, secretions, blood or other bodily fluids of one or more other individuals or is otherwise subjected to a potential exposure, by the other individual or individuals, including airborne exposure, to a serious communicable disease, or is otherwise determined to be infected with or at significant risk of contracting the serious communicable disease. . . “ Readers should focus on the language “or is otherwise subjected to a potential exposure” in the preceding sentence. The language does not say definite or proven exposure but rather “potential” exposure. Public safety workers, by the nature of their work, are highly likely to have such potential exposures to those who are infected with coronavirus.
These new provisions of New Jersey’s occupational disease law demonstrate that public safety workers who may contract coronavirus will have a strong case for compensability given the presumption provided for in the statute. Having a presumption of compensability is powerful. When there is presumption of compensability, the burden of proof shifts to the employer to show that the exposure is not work related. Just as I said earlier that it is hard for a non-public safety worker to prove exposure, so too it would be very hard for an employer to prove that a public safety worker more likely than not was infected through non-work exposures. The employer will have no idea when the disease was contracted, and it would be speculation to say that the exposure was not work related. So the presumption in a public safety worker scenario will almost certainly lead to compensable awards.
The statute drives this point home: “If it is ascertained that the public safety worker has contracted a serious communicable disease or related illness under the circumstances set forth in subsection a of this section, there shall be a presumption that any injury, disability, chronic or corollary illness or death of the public safety worker caused by, attributable to, or attendant to the disease is compensable under the provisions of R.S. 34:15-1 et seq.”
The CDC has concluded that it is just a matter of time before the coronavirus is considered a pandemic and before it spikes in parts of the United States. If the CDC is right, New Jersey public safety workers run a high risk of contracting the illness in the course of their employment. While slightly more than 80% of coronavirus patients have had mild symptoms, the remaining percentage has had serious symptoms. Sadly, a small percentage of deaths is related to the coronavirus. It is true that the percentage of deaths from coronavirus may not be any higher than the percentage of deaths from the flu each year in the USA, but there is a difference: there is no current vaccine for this virus and it has proven thus far to be highly contagious.
Our guest blogger from New Jersey, John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers' Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers' compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e mail at jgeaney@capehart.com.
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 January 17, 2020, the Alabama Court of Civil Appeals released its opinion in the matter styledEx parte Kohler Company, Inc. In Kohler, the Court considered a Petition for Writ of Mandamus filed by the employer as the result of a trial court order requiring it to authorize a referral to a doctor for a second opinion after the employee had previously exercised her right to select a doctor from a panel of four. Specifically, the employee injured her left foot and was initially treated by two occupational medicine doctors. On September 19, 2018, one of the authorized occupational medicine doctors authored a note which made a referral to an orthopedic specialist. Just five days later on September 24, 2018, the employee called the claims adjuster and asked that she be provided a panel of four physicians. It is undisputed that the employee was represented by counsel at this time. A panel of four orthopedic surgeons was offered to the employee. She ultimately selected an orthopedic surgeon from the panel and received treatment. When the panel doctor could not offer a diagnosis, the employee asked for a second opinion and he agreed that a second opinion would be okay. The employer did not authorize a referral for a second opinion. The employee filed a motion to compel the referral which the trial court granted. The employer’s efforts to vacate the order were unsuccessful and so it timely filed a Petition for Writ of Mandamus asking the Court of Appeals to direct the trial court to vacate the order. The Court of Appeals ultimately denied the employer’s petition rationalizing that it was equitably unjust for the employer to successfully take the position that the employee burned her panel when the employer had not followed the recommendation of the authorized occupational medicine doctor.
My Two Cents
The employee requested a panel of four just 5 short days after the occupational medicine doctor put an orthopedic referral in his notes. It is not clear when that referral was actually shared with the claims adjuster. Even if the adjuster knew about the orthopedic referral at the time the employee requested the panel (and there is nothing in the opinion to suggest that she did), to suggest that the employer failed to follow the recommendation of the occupational medicine doctor by not making the referral within 5 days of the recommendation is a little unfair. Although it seems pretty clear that the orthopedic referral at least became known to the adjuster after the request for a panel was made (panel was comprised of 4 orthopedic surgeons), that is of no consequence since, by that time, the request for a panel had already been made. Further, it is the opinion of the Court that the employer failed to follow a recommendation (that it may or may not have known) of an authorized doctor within 5 days of the recommendation being made. Even if you consider what transpired after the call, the employee was represented when she requested the panel of four. She and her attorney both knew that she had just been seen by an occupational medicine doctor. Yet they elected to request a panel without so much as even inquiring as to what the occupational medicine doctor had to say as the result of the last appointment. The fact that the panel was comprised of orthopedic surgeons instead of occupational medicine doctors should have been a huge clue to her attorney that such a referral had been 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.
Membership in the AWCO offers a number of professional and social opportunities annually to interact with other workers' compensation professionals. The highlight of the year is the annual AWCO Spring Conference where its members come together for two days of education, fun, and fellowship. Membership is only $75 if paid prior to February 28, 2020. After that, the annual fee goes up to $150. Once you are an AWCO member, the Spring Conference is free. You pay nothing, nada, zero, zilch to register and attend. Click HERE for an on line membership application. This year, the Annual AWCO Spring Conference will be held May 14-15, 2020 at theHyatt Regency Birmingham formerly known as The Wynfrey Hotel! We hope to see you 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.