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 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.
On September 6, 2019, the Alabama Court of Civil Appeals released its opinion inEx parte Warrior Met Coal, Inc. In Warrior, the employee continued to work for employer when he filed a complaint for hearing loss. The employer moved for summary judgment because the employee was still working for them under the same noise conditions. The argument being that the employee could not establish a date of last exposure which, in Alabama, is considered the date of injury for cumulative exposure claims. The employer also argued that the employee could not establish a date of maximum medical improvement “MMI” since he continued to be exposed to the same noise conditions. The trial court denied the employer’s motion. The employer then petitioned the Alabama Court of Civil Appeals for a Writ of Mandamus directing the trial court to grant the summary judgment motion.
The Court of Appeals denied the employer’s petition. The court noted that nothing in the Act precluded employees from pursuing hearing loss claims simply because they would continue to be exposed. The Court noted that date of last exposure did not mean the last time the employee would ever be exposed with that employer. Rather, it means the most recent in time or latest. To rule otherwise would mean the employee would have to wait until he/she would never be exposed again in order to pursue any benefits including medical.
Concerning the MMI issue, the Court noted that this only had to do with whether or not there was any further medical care or treatment that could reasonably be anticipated to lessen the extent of current disability. It has nothing to do with whether or not the employee’s condition could worsen in the future.
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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.
When you think of pirates of the 13th Century, images of fierce sword-wielding warriors engaged in bloody ship to ship sea battles immediately come to mind. It may shock you to know, that pirates actually had one of the earliest no-fault workers’ compensation systems. Each ship had a written compensation schedule where it was agreed that the loss of a limb would result in a lump sum payment of a pre-set number of pieces of eight. Once the agreement was signed, it was not negotiable. Therefore, despite their bloody nature, the pirates’ workers’ compensation system was not adversarial in any way.
The modern day workers’ compensation system, however, is exceedingly adversarial. By definition, the system is characterized by conflict or opposition. The word “adversarial” is synonymous with words such as “jaundiced”, “negative”, “unfriendly”, and “unsympathetic”. Such an antagonistic system often times results in delays to the injured employee and increased costs to the employers and insurers. Why and how has it come to this?
There is language in every state’s Workers’ Compensation Act that is open to interpretation by judges. Issues of causation and extent of disability are also typically litigated matters. Contributing to the process are harbored feelings by parties and their lawyers of bias, demonization, distrust, prejudice, and stigmatization. When you throw in the personalities and emotions of all involved, it creates an environment that would shiver even a pirate’s timbers.
On September 19, 2019 at 1:00 p.m. EST, a webinar entitled Adversarial Workers’ Compensation Systems; Survival and Success in a Contentious World will be co-hosted by the President of WorkersCompensation.com, Bob Wilson, and Judge David Langham. Joining as guests to this 10th installment of The Hot Seat webinar series will be Virginia Commissioner Wes Marshall and yours truly. Registration is free. You may register here.
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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 Governor Thomas Kilby signed bill 26-1 into law thereby creating what is now known as the Alabama Workers’ Compensation Act. Back then, it was known as the Alabama Workmen’s Compensation Act. The law later went into effect on January 1, 1920. Although there has been some recent controversy as to the constitutionality of the Act in its current state, it remains a better alternative to employees having to prove tort liability and tort liability exposure for the employer. As the Honorable E.R. Mills so adeptly stated in his Singletary v. Mangham Construction,
418 So.2d 1138 (Fla. 1st DCA, 1982) opinion, “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.”
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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.
One hundred years ago today, the Alabama Senate approved bill 26-1 which, when enacted into law the following month, became what is now known as the Alabama Workers’ Compensation Act. Much of the original 33 page Act has remained unchanged in the last century. Here are a few items from the original Act that have changed:
While all of the above parts of the law have all changed over the years, according to at least one Jefferson County circuit judge, some of the changes have not kept pace with the times. A little over 2 years ago, we reported that anAlabama Circuit Court Judge issued an Order declaring the entire Alabama Workers’ Compensation Act unconstitutional. Only 2 portions of the Act were actually deemed unconstitutional ($220 maximum weekly maximum for permanent partial benefits and the 15% contingency fee). However, our Act now contains a non-severability provision which means that if any portion of the Act is determined to be unconstitutional, then the entire Act is considered unconstitutional. Although the judge ended up staying the Order for 120 days to give the legislature more time to act, the case settled and the immediate threat was gone. That being said, the threat is certainly not gone and we can expect similar orders to be issued in the future at the state and possibly even the federal level if changes are not made soon.