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 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.
Beginning July 1, 2019, the maximum workers’ compensation payable will be raised to $892.00 per week and the minimum will be raised to $245.00 per week. https://labor.alabama.gov/docs/guides/wc_weeklywage.pdf
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About the Author
This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.
On April 19, 2019, the Alabama Court of Civil Appeals released its opinion in Tuscaloosa County v. Chaka Beville. In Beville, the employee sought benefits for a wrist injury. The authorized treating physician assigned a 4% left upper extremity impairment. The basis of the doctor’s assigned impairment was decreased joint mobility, increased stiffness, and limited grip strength. Loss of grip strength was not considered since it was expected to improve over time. After a trial on the merits, the trial court awarded the employee a 60% physical disability to the arm. Although the employer argued on appeal that the trial court abused its discretion by awarding a physical disability that was fifteen times the impairment rating assigned by the doctor, the Court of Appeals determined that there was substantial evidence to support the verdict.
My Two Cents
Although the doctor did not offer any impairment rating to the hand, the Alabama Workers’ Compensation Act makes it pretty clear that the scheduled number of weeks for the hand is the appropriate measure for a wrist injury. In both 25-5-1(12) (definitions) and 25-5-57(a)(3)15 (schedule) it states that an amputation between the elbow and the wrist should be considered the equivalent to the loss of a hand. If you are facing the possibility of a multiplier of 15 or higher, you may be better off arguing the hand over the arm since there is no corresponding impairment rating from a doctor.
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 March 29, 2019, the Alabama Court of Civil Appeals released its opinion in Ex parte Trusswalk, Inc. wherein it addressed a trial court’s ability to order pain management in the absence of a supporting medical necessity opinion from a doctor. InTrusswalk, the trial court ordered the employer to send the injured employee to pain management despite the fact that no doctor had recommended it. In issuing the order, the trial court relied on the fact that, after 5 back surgeries, the employee claimed to have chronic low back pain. The employer promptly filed a petition for a writ of mandamus.
In its petition, the employer argued that the trial judge lacked the authority to direct a referral for pain management where the authorized treating physician had not recommended same. In its brief and during oral argument, the employer argued that the trial court lacked the authority to order pain management in the absence of a supporting medical necessity opinion from any doctor.
In its opinion, the Court of Appeals cited to the Alabama Administrative Code for both the Board of Medical Examiners and the Department of Labor for the proposition that pain management is a specialty that necessitates a supporting opinion from a medical expert. Since no doctor had offered such an opinion, the Court granted the petition and directed the trial court to vacate its order.
My Two Cents
It is well settled in Alabama that a trial court cannot compel medical treatment when the issue of compensability remains in dispute. So as not to lose control of treatment, employers will sometimes agree to direct medical care while, at the same time, deny the claim. In Trusswalk, the employer denied all the material allegations of the Complaint in its Answer and, therefore, the issue of compensability remained in dispute. This was not raised in the employer’s petition and so it was not addressed by the Court of Appeals.
Two More Cents
Following the hearing on the plaintiff’s motion to compel pain management, the trial court issued an order that included findings of fact and conclusions of law. Interestingly, one of the findings of fact was that the employee suffered a work-related back injury. The trial court also held that the employee’s chronic pain condition arose out of his work related accident and injury. Such findings should have only been made following a trial on the merits. If the judge elected to treat the hearing on the employee’s motion as a trial, then the employer’s right to 60 days’ notice was violated. If the hearing was not treated as a trial, then the issues of compensability and chronic pain should remain at issue. Unless the employer can get another Marshall County judge to handle the trial, the proverbial cards on these important issues have already been laid down.
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.
In May of 2017, we reported that an Alabama Circuit Court Judge issued an Order declaring the entire Alabama Workers’ Compensation Act unconstitutional. In June of 2017, we reported onwhat needed to happen to fix the Alabama Workers’ Compensation Act. In November of 2017, we reported that theAlabama State Bar Association had appointed a task force to review the Act and make recommendations on how to fix it. In April of last year, we reported onthe types of changes the task force was looking at making. On October 17, 2019, the task force unanimously approved a proposed bill that would make substantial changes to the Act. Unfortunately, the Alabama Council of Association Workers’ Compensation Self Insurance Funds was not invited to participate on the task force. This was a major oversite as the Council represents self-insurance funds providing workers' compensation coverage for 16,200 Alabama businesses employing 375,000 people. The Councilvoted against the proposed bill primarily because it raises legal fees for plaintiff attorneys by one-third and does nothing in the short run to reign in hospital, doctor, and other medical costs. It also more than doubles the cap on certain disability payments to injured workers and adds an inflationary adjustment. Although it voted no to the proposed bill as drafted, it did state that it was open to discussing change.
The Alabama legislature began its regular session this month. Although our Governor called a special session to tackle Alabama’s “crumbling infrastructure,” nothing has been introduced regarding the workers compensation system. Some would argue that the Alabama House and Senate have many new faces this year and, therefore, it would be difficult, if not impossible, to quickly effectuate any major change to the Workers’ Compensation Act. But then it would be difficult to explain how a55% gas tax hike that was largely unpopular with the electorate was rushed through the legislature and signed into law in just 5 days.
Despite forming the task force, the Alabama Bar Association is prohibited from throwing its support behind any proposed legislation. Therefore, there is no organization pushing for immediate change at this time. According to the Alabama Department of Labor, it is a state regulatory agency tasked with the responsibility of following and enforcing the laws put in place by the legislature. As the regulator, it typically does not comment on proposed legislation. However, it acknowledges that the current workers’ compensation laws are not ideal and that amendments are needed that benefit both injured workers and employers. It will follow and enforce any changes that are made, if any.
Meanwhile, our neighbor to the east has wasted no time pushing for change. During its 2019 legislative session, the Georgia Senate unanimously passed abill that would raise the maximum weekly benefit for temporary total and permanent partial disability. If approved by the House and signed by the governor, it would mark the largest increase to the caps in decades. Is this change in response to a Georgia court recently declaring the entire Georgia Workers’ Compensation Act unconstitutional? No. Rather, it is the result of all interested parties progressively working together to effectuate needed change. The last time that happened in Alabama was 1992.
What Happens Now?
Unless something is done legislatively, it is inevitable that another circuit court judge will, again, address the constitutionality of the Act. Since nothing is going to be introduced or passed during this legislative session, at a bare minimum a committee comprised of all interested parties needs to be formed that can make recommendations for change. The 1992 reforms were passed as the result of the Department of Industrial Relations (now Department of Labor) initiating discussions between the interested parties. Informal discussions resulted in a reform bill being introduced in 1991. The bill easily passed the House but was not voted on by the Senate. Negotiations continued through the remainder of 1991 and into 1992. Prior to the next legislative session (special session in January), Governor Hunt called for formal negotiations. Still no consensus was reached. Negotiations and lobbying continued and a revised bill was finally passed in the regular session a few months later. If history is any indicator, negotiations need to begin now if there is to be any chance of change in 2020.
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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 March 1, 2019, the Alabama Supreme Court issued its opinion regarding the largest retaliatory discharge jury verdict ever recorded in Alabama. Notable facts from the underlying case are as follows:
The employee had a compensable workers’ compensation accident.
The authorized doctor assigned work restrictions that could not be accommodated.
The employee was on workers’ compensation leave for 4.5 months.
He received TTD during that time period.
While he was out, the employer hired another driver to replace him.
When the employee attempted to return to work, he was told that he was no longer needed.
The employer admitted that it did not follow its own return to work policies when it terminated the employee without making an effort at finding another position for him.
The employer was actively looking for drivers during the same time period that the employee was terminated.
Another employee was terminated for the same reason when he attempted to return to work.
In an e-mail, the employer admitted to improperly terminating both employees.
The employee was allowed to claim lost future earnings even though he was earning more with a new employer at the time of trial. This was because he was able to demonstrate that his higher earnings were due to his working longer hours (936 more hours per year) as opposed to his earning equal or higher wages.
At the close of the evidence, the jury returned a unanimous verdict in the employee’s favor in the amount of $1,259,451.52 (comprised of $314,862.88 in compensatory damages and $944,588.64 in punitive damages).
On appeal, the Alabama Supreme Court affirmed the judgment.
My Two Cents
Employees are certainly not insulated from termination simply because they have filed a workers’ compensation claim. However, employers should proceed with a high degree of caution when considering the termination of a claimant. At a bare minimum, all applicable handbooks/policies should be thoroughly reviewed and an attorney that is well versed in such matters should be consulted.
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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 three days of education, fun, and fellowship. Membership is only $75 if paid prior to February 27, 2019. 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. This year, the 38th Annual AWCO Spring Conference will be held May 9-10, 2019 at the Sheraton Hotel in downtown Birmingham! For more information on how to join the AWCO or register for the Spring Conference, please call or e-mail me (contact info below).
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.