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.
Effective January 1, 2020, the mileage reimbursement rate for Alabama is 57.5 cents per mile, a .5 cent decrease from 2019.
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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.
Today marks 100 years since the Alabama Workers’ Compensation Act went into effect. Back then, it was known as the Alabama Workmen’s Compensation Act. While it has been expanded in the last century, much of the original 33 page Act (now closer to 450 pages including annotations) has remained unchanged.
Although there has been some recent controversy as to the constitutionality of the Act, it remains a much better alternative to employees having to prove tort liability and tort liability exposure for employers.
As the Honorable E.R. Mills so adeptly stated in Singletary v. Mangham Construction, 418 So.2d 1138 (Fla. 1st DCA, 1982), “Workers' compensation is a very important field of the law, if not the most important. It touches more lives than any other field of the law. It involves the payments of huge sums of money. The welfare of human beings, the success of business, and the pocketbooks of consumers are affected daily by it.”
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 6, 2019, the Alabama Court of Civil Appeals released its opinion inJames Brooks v. Austal USA, LLC. The undisputed facts were that while the Complaint was filed prior to the expiration of the Statute of Limitations, the Complaint was not served on the employer for seven months, during which time the Statute of Limitations expired. The Court of Appeals held that to commence an action for Statute of Limitations purposes, a Complaint must be filedand there must be an intent to have the Complaint immediately served; and held further that if the employee performs all of the tasks required to effectuate service at the time of filing, that the action has commenced. In this case, the employee attempted to serve the Complaint at the time it was filed, albeit to an outdated registered agent. While it took several months after the failed attempt for the Complaint to be served, the Court of Appeals determined that there was an attempt to serve at the time of filing. For this reason, the case was reversed and remanded.
About the Author
This article was written by Karen E. Cleveland, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Fish Nelson & Holden is a member of The National Workers’ Compensation Defense Network (NWCDN). If you have any questions about this submission, please contact Cleveland by emailing her atkcleveland@fishnelson.com or by calling her directly at 205-332-1599.
On December 6, 2019, the Alabama Court of Civil Appeals released its opinion inColby Furniture Company v. Belinda Overton. In Overton, the employer sought the termination of the employee’s right to future medical benefits. The employee injured her neck in 1994 and received pain management treatment for over 22 years. In 2005, she was given a panel of four pain management doctors from which she selected a new doctor thus burning the one panel owed to her per statute. In 2015, she was dismissed from pain management for violating the narcotic agreement entered into with her doctor. The employer subsequently filed a motion for summary judgment asserting that the employee already burned her panel and, in the alternative, that she forfeited her right to benefits due to her own misconduct under an unclean hands theory. The Judge denied the motion and the matter proceed to an evidentiary hearing. The Judge subsequently issued a Final Order which required the employer to provide another panel of four from which no appeal was taken. The employer then undertook to comply with the Order by offering several panels. Despite its best efforts, none of the selected doctors were willing to accept the employee as a patient. The employer then filed a Motion for Additional Instructions outlining its efforts at complying with the Order and seeking further guidance from the Court on what could be done. The Judge then issued a second Order requiring either that a panel of four be offered (presumably from which the employee could select a doctor that would accept her as a patient) or, in the alternative, that the employer negotiate a settlement of the employee’s future medical benefits. The employer then filed a Motion to Alter Amend or Vacate that Order which was subsequently denied by operation of law. The employer then appealed the second Order.
On appeal, the employer raised several issues including the fact that the employee was only entitled to one panel per the statute and the doctrine of unclean hands. The Court of Appeals noted that the first Order which was conclusive and binding on the issues was not appealed. The Court further noted that, in its Motion for Additional Instructions, the employer did not assert that only one panel was owed or that the employee was guilty of unclean hands. Therefore, neither issue was deemed to be properly before the Court on appeal. For that reason and only that reason was the trial Judge’s Order affirmed.
My Two Cents:
This is one of those situations where no good deed goes unpunished. The employer clearly tried to bend over backwards to comply with the trial Judge’s wishes. In doing so rather than immediately appealing the ruling, it was forever precluded from seeking appellate relief. One point of interest is that the second Order gives the employer an option. It can either provide a panelOR negotiate a settlement of medical benefits. This begs the question as to whether in electing to go with option #2, it could simply not provide a panel. In the usual case, withholding medical benefits while attempting to settle medical benefits would immediately invite a cause of action for outrageous conduct (egregious settlement tactics). In this case, it would seem that the court’s second Order would insulate the employer from such a lawsuit.
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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 November 27, 2019 the Alabama Supreme Court released its opinion in Ex parte Dow Corning Alabama, Inc., et al. In this case an employee was injured while working for Alabama Electric Company, Inc. The injury occurred at Dow Corning Corporation. Dow Corning sought to enforce an indemnification agreement that it alleged it had with the employer, Alabama Electric Company, Inc. Also involved in this matter was Alabama Electric Company’s insurance carrier, National Trust Insurance Company, Inc. Prior to the settlement the Dow defendants demanded a defense and indemnification from Alabama Electric and National Trust. Alabama Electric ultimately refused the demand. The Dow defendants then settled the case with the employee and, approximately one month after the settlement, Alabama Electric and National Trust filed a declaratory judgment seeking a ruling that they were not responsible for the defense cost incurred by the Dow defendants in the personal injury settlement nor were they responsible for the settlement proceeds. The Dow insurers later filed a counter claim seeking reimbursement for defense costs and settlement funds that were paid to the Alabama Electric employee in the personal injury action. During the declaratory judgment action Alabama Electric sought to depose a Dow representative and in the deposition notice requested documents related to the decision to settle, which would include the Dow attorney’s evaluation and recommendations for the defense and settlement of the claim. The Dow defendant’s asserted that said information was privileged and protected by the attorney client privilege and/or the work product doctrine. American Electric asserted that the Dow defendants waived the protection by seeking indemnity and made the reasonableness of the settlement an issue.
The Alabama Supreme Court ultimately determined that the Dow attorney evaluation and recommendations were still privileged and did not have to be produced despite the fact that the issue of whether or not the settlement was reasonable and made in good faith was to be determined. The Alabama Supreme Court held that American Electric had access to the facts and evidence, and other non-privileged information, that could be used in determining whether or not the evaluation and settlement was reasonable. This would include experts which both parties had intended to use to review this information and determine the reasonableness of the settlement. Therefore, the Court held that the Dow attorney evaluation and recommendations were to remain privileged and did not have to be turned over. As a result, the Court granted Dow’s Petition for Writ of Mandamus and directed the trial court to vacate its discovery order which was going to require the Dow defendants to produce their attorney evaluations and recommendations. The Court further held that an appropriate protective order was to be entered.
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. Mr. Holden can be reached at jholden@fishnelson.com or (205) 332-1428.
On November 15, 2019, the Alabama Court of Civil Appeals released its opinion inEx parte Sea Coast Disposal, Inc., in response to a Petition for Writ of Mandamus. The employer argued there was insufficient evidence to support the trial court’s determination that the employee’s neck and back claims were compensable. Regarding the neck, the Court of Appeals reviewed the evidence, consisting of medical records, medical expert testimony, and the testimony of both plaintiff and his father-in-law, regarding the onset of symptoms, including swelling in the plaintiff’s neck. The Court of Appeals determined that there was “substantial evidence” supporting the trial court’s finding of compensability. The Court of Appeals then reviewed the evidence regarding the low back, including an almost one-year delay in the onset of symptoms, infrequent complaints, and no supporting causation opinion from a medical expert. The Court of Appeals held that there was not “substantial evidence” for the trial court to have reasonably inferred that the low back injury was compensable. The Petition for Writ of Mandamus was granted in part and denied in part.
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About the Author
This article was written by Karen E. Cleveland, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Fish Nelson & Holden is a member of The National Workers’ Compensation Defense Network (NWCDN). If you have any questions about this submission, please contact Cleveland by emailing her atkcleveland@fishnelson.com or by calling her directly at 205-332-1599.
Ombudsmen Patricia Fraley and Ted Roose plan to continue to keep regular office hours on the 2nd and 4th Tuesdays of every month from 9-12 and 1-3 for anyone who wants to submit a settlement for their review. There is no need to make an appointment for these times but it is a good idea to call and give them a heads up just to make sure they will be there.
2020 OFFICE DAYS FOR BRCS
ALABAMA CARRER CENTER
3216 4TH AVENUE SOUTH BIRMINGHAM, AL 35222
9:00 AM- NOON & 1:00 PM-3:00 PM
JANUARY 14, 2020 JANUARY 28, 2020
FEBRUARY 11, 2020 FEBRUARY 25, 2020
MARCH 10, 2020 MARCH 24, 2020
APRIL 14, 2020 APRIL 28, 2020
MAY 12, 2020 MAY 26, 2020
JUNE 9, 2020 JUNE 23, 2020
JULY 14, 2020 JULY 28, 2020
AUGUST 11, 2020 AUGUST 25, 2020
SEPTEMBER 8, 2020 SEPTEMBER 22, 2020
OCTOBER 13, 2020 OCTOBER 27, 2020
NOVEMBER 10, 2020 NOVEMBER 24, 2020
DECEMBER 8, 2020 DECEMBER 22, 2020
Ombudsmen
Patricia Fraley 205-305-6343 patricia.fraley@labor.alabama.gov
Ted Roose 205-307-8576 theodore.roose@labor.alabama.gov
The Career Center located at 3216 4th Avenue South (Birmingham).
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.
The Alabama Supreme Court recently released its opinion addressing the issue of whether a parent company of an employer is immune from suit based on the exclusivity provisions of The Alabama Workers’ Compensation Act. InEx parte Ultratec Special Effects, Inc., (hereinafter referred to as "Ultratec") a Canadian lighting and special effects equipment manufacturing company, sought mandamus review of the Circuit Court of Madison County’s denial of its motion for summary judgment in two related cases involving the deaths of Aimee Cothran and Virginia Sanderson.
On February 6, 2015, Cothran and Sanderson were killed in an explosion while working at a pyrotechnic manufacturing facility owned and operated by Ultratec Special Effects (HSV)’s in Owens Crossroads, Alabama. Ultratec Special Effects (HSV) (hereinafter referred to as "Ultratec HSV") is an Alabama corporation that is a wholly-owned subsidiary of Ultratec.
There was no dispute that the deaths of Cothran and Sanderson occurred in and arose out of their employment with Ultratec HSV. However, Ultratec asserted that the plaintiffs’ tort claims were barred under the exclusivity provisions of the Act, and that the plaintiffs were not entitled to damages beyond the benefits provided in the Act and paid by Ultratec HSV’s workers’ compensation insurer. Ultratec asserted that (1) Ultratec and Ultratec HSV jointly employed Cothran and Sanderson; (2) Ultratec HSV operated as a division of Ultratec; (3) Ultratec retained a right of control over Ultratec HSV’s employees, and (4) public policy strongly favors extending immunity to the parent company . The plaintiffs opposed Ultratec’s motions, asserting that Ultratec and Ultratec HSV were separate companies and were not joint employers. The trial court denied Ultratec’s motions for summary judgment, and Ultratec petitioned the Supreme Court to overrule the trial court. In a lengthy written opinion, the Supreme Court denied Ultratec’s petition, holding that there are genuine issues of material fact that precluded summary judgment, and that Ultratec failed to show that it had a clear right to an order directing the trial court to vacate its order denying summary judgment. The Supreme Court also rejected Ultratec’s public policy argument, stating that the issue was best left to the Alabama legislature.
The Supreme Court pointed out that Ultratec’s argument that it and Ultratec HSV were an "employer group" was misplaced,. The Court held that the exclusivity provisions provide immunity to groups that act as a service company for a self-insured employer, and that there was no evidence that Ultratec qualified as such a service company by providing assistance in administering Ultratec HSV’s workers’ compensation plan. The Court held that there were genuine issues of material fact as to whether Ultratec reserved a right of control over Ultratec HSV’s employees such that Ultratec would qualify as a joint employer or special employer. The Court rejected Ultratec’s argument that Ultratec HSV operated as a division of Ultratec, based on fact that Ultratec and Ultratec HSV were legally separate corporations based in different countries, and had filed separate corporate income tax returns. Finally, the Court noted that Ultratec’s directing officer had successfully petitioned OSHA to have Ultratec’s name removed as a respondent-employer in proceedings OSHA brought against both companies after the fatal accident.
Justices Wise and Mitchell recused, and Justices Shaw, Bryan, and Sellers dissented. Justice Sellers penned the dissenting opinion, in which he stated that the Legislature originally intended to consider companies like Ultratec and Ultratec HSV as a group of entities that employs workers, such that they would be treated as a single employer for purposes of workers’ compensation. The dissent noted that Ultratec owned 100% of the stock of Ultratec HSV, that the two companies were highly integrated, and even operated under the direction of a single officer. The dissent also pointed to the fact that the licenses and permits that allowed the manufacture of pyrotechnics in Owens Crossroads were issued by the State Fire Marshall and the Federal Bureau of Alcohol, Tobacco, Firearms & Explosives to Ultratec - not Ultratec HSV.
MY TWO CENTS
Generally speaking, the appellate courts will not hear a petition for writ of mandamus on the denial of a motion for summary judgment. One of the few exceptions is when the basis of the motion is immunity, as it was here. However, it is important to note that just because the Supreme Court denied Ultratec’s petition, there has not yet been a final determination. This holding merely means that the issue of whether Ultratec is immune from the plaintiffs’ claims will be decided by a jury. At the summary judgment stage of proceedings, the movant must show that there is no genuine issue of material fact, and that it is therefore entitled to judgment as a matter of law. The fact that Ultratec had taken inconsistent positions(filing separate tax returns and asserting that the two companies were separate in the OSHA investigation) muddied the waters and raised issues of fact that the trial court felt should be decided by a jury.
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 October 4, 2019 Alabama Court of Civil Appeals released its opinion in AMEC Foster Wheeler Camtech, Inc. v. Jimmy Chandler wherein it upheld the Trial Court’s finding that the employee suffered from a vocational disability as a result of his on the job back injury.
The evidence at trial was that the employee was working on or about November 16, 2015 when he felt pain in his back while lifting a pipe. This job, according to the plaintiff, involved welding and being able to get into awkward positions and perform precision welding. The employee was ultimately diagnosed with a protrusion at C5-6, a protrusion at T7-8, and a protrusion at L4-5, along with degenerative changes in the spine. The plaintiff was given lifting restrictions and his authorized treating physician performed conservative measures including epidural injections. After missing several appointments the plaintiff was placed at MMI on or around June 14, 2016. The employer had placed the employee at light duty and the employee left his employment with AMEC on January 11, 2016. At that time he was not receiving any benefits because light duty was being provided. The plaintiff did go back to treat with the authorized treating physician at a subsequent date and the doctor noted that he had improved significantly and should only need additional treatment once or twice a year. Note the employee did work with other employers on and off after his employment with AMEC. However, at the time of the trial he was not working. These jobs included working as a supervisor of other welders that would inspect welds but did no perform welding himself mostly. There was some work that he had do a little bit of mechanic work but again it was mostly supervising. The employee testified that it was nothing like the precision and specialty welding that he had to perform that involved getting in unusual positions with AMEC.
The employer appealed the decision asserting that the return to work provision should have applied because the employee had returned to work for another employer earning the same or greater wages. The Trial Court ruled that the return to work statute did not apply because the employee was no longer working at the time of the initial disability determination by the Court and, therefore, had not returned to work as that term was used in the return to work statute. The Court of Appeals went on to point out that for the purposes of this argument they did not really have to address it because the employer did not argue and/or calculate correctly the employee’s average weekly wage with the other employers so it can accurately be compared to his wages with AMEC. The Court noted that the employment with the other employers was on and off and in order to determine the average weekly wage the employer on appeal had to secure the gross wages from the other employers and then divide that by the number of weeks worked. The Court of Appeals pointed out that AMEC was required to do this and it was not the Court’s job to make that calculation for them in order to determine if the employee was earning the same or greater wages. Therefore, the Court of Appeals ruled that AMEC failed to demonstrate the employee actually return to work making a higher average weekly wage and thus could not find the Trial Court in error.
AMEC also argued that the employee admitted that after long hours that his back felt worse and, therefore, that the last injurious exposure rule should apply which would preclude the employee from receiving workers’ compensation benefits from AMEC. The Court of Appeals stated that the employee’s testimony that pain worsened by his subsequent employment activities supported the conclusion that the employee suffered a recurrence of the symptoms of his injury and not that he suffered a secondary injury to his back that contributed independently to the final disability. As a result, the last injurious exposure rule would not apply because there was a recurrence, as opposed to a new injury.
AMEC also appealed arguing that the MMI date asserted by the Trial Court was not supported by the evidence. The Court of Appeals noted that the Trial Court is not bound by a physician’s determination of an MMI date. The Trial Court stated that MMI is the date in which the claimant reaches a plateau and there is no further medical care or treatment that could be anticipated to lessen the employee’s disability. The Court noted that Dr. West testified at his deposition that he had improved since June of 2016 and in February of 2018 he had reached a point where he would only have to have epidural injections a couple of times a week. Therefore, the Court of Appeals stated that the Trial Court’s conclusion that MMI was reached on February 2, 2018 was supported by the evidence.
ABOUT THE AUTHOR
This blog submission was prepared by Josh Holden, an attorney with Fish, Nelson, and Holden, LLC a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators and all matters related to Worker’s Compensation. Fish, Nelson and Holden is a member of the National Worker’s Compensation Defense Network. If you have any questions about this submission or Alabama Worker’s Compensation in general, please contact Holden by emailing him at jholden@fishnelson.com or calling him directly at (205) 332.1428.
As we celebrate 100 years of Alabama Workers’ Compensation in 2019, the Alabama Workers' Comp Blawg celebrates its 12th year. We would like to thank all of our readers who have helped to makehttp://www.alabamaworkerscompblawg.com a nationally recognized and award winning news source for Alabama workers' compensation!
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.