State News : Alabama

Alabama Appellate Court Determines that Using the Same Standard for the Left and the Right Made a Wrong

On January 4, 2018, the Alabama Court of Civil Appeals released its opinion inEnterprise Leasing Company –South Central, LLC v. Benson Drake.  At trial, the employee claimed an initial left leg injury due to an accident and a subsequent right leg injury due to issues related to an altered gait.  The trial court concluded that both legs were compensable but applied the lower substantial evidence standard to both.  The Employer appealed.

On appeal, the Court of Civil Appeals reversed and remanded the trial court’s order with instructions to apply the higher “clear and convincing” standard to the subsequent right leg injury.  Specifically, the Court instructed the trial court to review the evidence adduced at trial and determine whether or not the employee proved, by clear and convincing evidence, that his right leg injury was the direct and natural consequence of the left knee injury.

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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.

Effective January 1, 2019, the mileage reimbursement rate for Alabama is 58 cents per mile, a 3.5 cent increase from 2018.

Today when I turned on my computer to start the day, I was alerted by LinkedIn that a good friend and client was celebrating 11 years with her employer.  I remember when she first took that job.  It was a third party administrator that had just opened an office in Birmingham and they handpicked my friend from a list of very capable applicants.  She was very excited and we went to a local steak establishment to celebrate.  Within the next year, she adopted a brand new baby boy.  He was her world and she was his.  Several years later, my wife and I were blessed to bring a son into the world.  We would occasionally get our families together.  Although there was an age difference, the two boys got along wonderfully, just like their parents.  My friend had more than her share of medical issues but we all thought they were behind her.  Unfortunately, that was not the case.  Recently, my friend passed away in her sleep.  Her son found her the next morning.  Every child’s nightmare became his reality.  We have set up a trust fund for her son that will provide future assistance as needed.  If you would like to make a contribution to the fund, please e-mail me (mfish@fishnelson.com) and I will provide you with the necessary information to do so.  No contribution is too small and all will be greatly appreciated.  May all your family and friends be safe and well over this Holiday Season and beyond.

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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.

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 this year, we reported onthe types of changes the task force was looking at making.  On October 17, 2018, the task force unanimously approved a proposed bill that would make substantial changes to the Act.  The proposed bill is 58 pages in length so I am not going to attempt to summarize it all in a blog article.  I am happy to send a complete copy to anyone who sends me a request (mfish@fishnelson.com).  Here are some of the highlights:

• If an employee is represented by an attorney licensed to practice in Alabama, then there would be a presumption that any proposed settlement is in the best interests of the employee.

• If a judge declines to approve a settlement, then the matter would be reassigned to another judge for trial.

• The first 3 weeks of TTD would not be deducted from the 300 weeks of PPD.

• PTD benefits would terminate when the employee either reaches the age of 2 years beyond the full retirement age for purposes of Social Security or the employee reaches the age of 70 or 500 weeks from the date of accident (or date of last exposure if non-accidental).

• The $220 per week max for PPD would be changed to 50% of the state’s AWW as of the date of the accident.

• The employer would have the right to choose the provider of prescriptions and durable medical equipment.

• Generic medications would be required if available.

• Doctors would no longer be able to fill prescriptions from pharmacies in which they have an ownership interest.

• With the exception of previously implanted medical or prosthetic devices, there would be a 300 week max for medical treatment unless (1) the employee petitions the court within 300 weeks to extend the date, and (2) the employee proves by clear and convincing evidence that such an extension is reasonable, necessary, and related to the injury or disease.

• The above right to petition could be closed pursuant to the terms of a settlement.

• If the employee receives no medical treatment for 3 years and fails to petition for an extension, then there will be a rebuttable presumption that any subsequent treatment is not related to the accident or occupational disease.

• If the employee receives no medical treatment for 5 years and fails to petition for an extension, then the employee would not be entitled to further medical benefits with the exception of previously implanted medical or prosthetic devices.

• Employees would be required to sign pain management contracts that outline their responsibilities.  If the employee violates any of the provisions of the contract, then there would be a rebuttable presumption that the employee is no longer eligible for pain management prescriptions.  In the event of a second violation, then the employee’s right to any pain management prescriptions would be terminated unless the employee can prove by clear and convincing evidence that the violation did not occur.

• There would be no requirement that the allegations in a Complaint be verified by the employee.

• Judges would be required to enter judgment within 90 days of trial or within 90 days of the submission of post-trial briefs.

• All settlements and judgments would have to address time limitations to medical treatment.

• The contingency fee for plaintiff attorneys would be increased from 15% to 20%.

• Third party vendors would not be allowed to audit attorney bills.

The proposed bill will now be submitted to the Alabama State Bar for consideration.  If the Bar adopts the recommendations of the committee, it will throw its support behind the bill once it is introduced during the next legislative session.  We will continue to monitor the progress of the proposed changes in order to keep our readers apprised of all developments.

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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 July 13, 2018 the Alabama Court of Civil Appeals released its opinion in Lawler & Cole CPAs, LLC, and Alabama Retail Association d/b/a Alabama Retail Comp v. Donald Cole which was on appeal for the Marion County Circuit Court. In the underlying case the employee’s estate filed a motion for summary judgment on its claim for death benefits based on the employee’s death as a result of a former client shooting her in her office. The employer also filed a motion for summary judgment which was denied. The trial court found that the employee’s death occurred in and arose out of the employee’s employment with the employer.

The parties agreed with the facts of the circumstances of the employee’s death in that the employee had served as the accountant for a Mr. Jimmy Dale Cooper since at least the 1980s. At some point in handling Mr. Cooper’s business, Mr. Cooper was audited and Mr. Cooper ultimately refused to comply with the lawful request of the Alabama Department of Industrial Relations. The employee and her employer subsequently ceased to handle Mr. Cooper’s business at which time the employee told Mr. Cooper she did not want any hard feelings between them because they were friends and they had worked together for such a long time but the employer could no longer handle his business. In February of 2016 Mr. Cooper entered the premises of the employer and ultimately shot and killed the employee. The evidence presented established that Mr. Cooper had stated that he was upset and going to shot the employee because he blamed the employee for the tax problems in his past. Nothing in the evidence established that Mr. Cooper and the employee had any sort of personal disagreement.

Under the Alabama Workers’ Compensation Act, the unexpected willful assault upon an employee by another person constitutes an accident for the purpose of the Act and any injury resulting from shall be compensable if the rational mind can trace the resultant injury or death to a proximate cause set in motion by the employment and not some other agency. SeeGarrett v. Gadsden Cooperage Co., 96 So. 188 1923 and Beverley v. V. Ruth’s Chris Steakhouse, 682 So. 2d 1360, 136, (Ala. Civ. App. 1996). Furthermore, the supporting case law indicates that the employment can still be the approximate cause if the assault was not foreseeable as a natural and anticipated risk of the employment.

In this case, the employer was arguing that the length of time between the interaction between the employee and Mr. Cooper supported that there was something personal that resulted in the employee being killed or that at the very least it was unrelated due to the gap in time. However, the Alabama Court of Civil Appeals pointed out that the plain language of the statue, § 25-5-1(9) clearly and unambiguously provides that the intentional assault would not arise out of the employment if it was committed upon the employee because of reasons personal to the employee and not because of his/her status as an employee or because of his/her employment. In this case, the Alabama Court of Civil Appeals stated that despite the fact that there was a significant lapse in time between the employment related act and the employee ultimately being killed, the evidence was undisputed that Mr. Cooper intentionally assaulted and killed the employee not out of personal ill will but solely because of the employee’s work performed on Mr. Cooper’s taxes. Immediately before opening fire on the employee Mr. Cooper stated his intent to kill the employee because she “f***** (his) taxes”. The Court specifically rejected any contention that an assault would be considered purely personal because of the long passage of time between the professional relationship between Mr. Cooper. Furthermore, while the record may have been vague as to what happened between their professional relationships and the time Mr. Cooper shot the employee it was clear at the time of the assault that Mr. Cooper was angry and blamed the employee for his tax problems and was acting as a result of that. Therefore, the Court of Civil Appeals upheld the trial court’s motion for summary judgment ruling stating that the death of the employee was caused by accident arising out of and occurring in the course of the employee’s employment and therefore, benefits were due to the employee’s estate.

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 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.

On June 18, 2018 Senators Portman (R-OH) and Nelson (D-FL) introduced a bill to amend title XVIII of the Social Security Act to provide for the application of Medicare secondary payer rules to certain workers’ compensation settlement agreements and qualified Medicare set-aside provisions.  The proposed legislation (S.3079) was designed to provide specific statutory guidance to CMS in its review of workers’ compensation set-aside determinations.  According to Doug Holmes, the President of UWC – Strategic Services on Unemployment & Workers’ Compensation, the bill is the product of discussions with representatives of all the primary stakeholders in the workers’ compensation system, the Centers for Medicare and Medicaid Services and congressional staff.  Per Mr. Holmes, the legislation would provide for improved administration of Medicare in conjunction with settlements in workers’ compensation cases. 

In summary, the legislation seeks to:

o   Establish clear criteria in the determination of amounts to be set-aside in workers’ compensation settlements;

o   Create legal certainty in determining  the amounts to be included in set-asides and that workers’ compensation laws are appropriately followed;

o   Provide a right of appeal  to CMS determinations for parties to workers’ compensation settlements; and

o   Provide an optional direct payment of set-aside amounts to Medicare to speed payments, increase revenue for Medicare, and provide certainty for injured workers.

For more information regarding the bill, Doug Holmes can be contacted directly atholmesd@uwcstrategy.org or 202-223-8904.

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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.

Beginning July 1, 2018, the maximum workers’ compensation payable will be raised to $865.00 per week and the minimum will be raised to $238.00 per week. https://labor.alabama.gov/docs/guides/wc_weeklywage.pdf

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This blog submission was prepared by Joshua G. Holden, 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 Holden by e-mailing him at jholden@fishnelson.com or by calling him directly at 205-332-1428.

The Alabama Court of Civil Appeals recently released its decision in the case ofIn re: Jeffrey Donaldson v. Sears Roebuck and Co. on May 11, 2018. It’s decision confirmed that when compensability is disputed, an employer cannot be compelled to provide medical treatment until after an evidentiary hearing on the issue is held, and compensability has been established. In rendering this decision, the Court upheld the principles outlined in it’s earlier decision,Ex parte Publix Super Markets, Inc., 963 So. 2d 654 (Ala. Civ. App. 2007).

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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.

“All great changes are preceded by chaos.” – Deepak Chopra

The Chaos

On May 8, 2017, a Jefferson County Circuit Court Judge issued an Order declaring the Alabama Workers’ Compensation Act to be unconstitutional.  It was the Judge’s opinion that the statute placing a $220 weekly cap on permanent partial disability awards and the statute that places a 15% contingency fee cap on legal fees are both unconstitutional.  Since the Judge found 2 statutes to be unconstitutional, it had the effect of declaring the entire Act unconstitutional due to a non-severability (all or none) statute.  The issue was not appealed and so the constitutionality of the Act was never addressed by an appellate court.  While chaos was avoided, the threat of having the entire system scrapped as unconstitutional was enough to put the wheels of change in motion.

The Change

In November of 2017, the Alabama State Bar appointed a Workers’ Compensation Task Force comprised of more than 20 attorneys representing the interests of employees, employers, insurers, self-insured employers, self-insurance funds, and the medical community.  A state representative, a state senator, and a circuit judge also participated.  Since its inception, the Task Force has been working diligently towards proposed changes that all parties can live with.  The following is a list of some of the items that are currently being considered:

1.      Regarding medical benefits, there would be presumption that the treatment is not related if no treatment for a fixed period.  After a longer fixed period of no treatment, there would be a conclusive presumption it is not related.  Except for catastrophic injuries, medical benefits would be closed after a set period in all cases.  After adequate time for assessment from the accident date, there would be a presumption that the injury is not catastrophic.

2.      Permanent and total weekly benefits would be terminated at a fixed age.

3.      Employer would likely get the right to choose the pharmacy.

4.      There would be more restrictive standards for pain management involving opioids.

5.      Medications would not be sold by prescribing doctors.

6.      The $220 cap would be adjusted to be a % of the state average weekly wage.

7.      The 15% contingency fee would be raised, but modestly.

8.      The possible use of a standardized medical form.

9.      E-mail communications for claim filing would be allowed.

The goal is for all parties to agree on a proposed bill prior to the 2019 legislative session.  We will continue to report as new information is learned. 

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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 February 23, 2018 the Alabama Court of Civil Appeals released its opinion inEx Parte Alabama Gas Corporation denying Alagasco’s Petition for Writ of Mandamus wherein it sought relief from a particularly restrictive HIPAA Order entered by the trial court. It is quite a common occurrence for judges in workers’ compensation cases to enter a "HIPAA Order". The purpose of such an order is to ensure compliance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA), while still allowing parties to obtain protected health information relevant to the case. However, in the underlying case of Robert Smitherman v Alabama Gas Corporation, the trial court entered a HIPAA order that was a departure from the "standard" order typically entered. That order provided, among other things, that the parties and their attorneys were only allowed to obtain protected health information (namely medical records and bills) after issuing a subpoena to obtain them. It also limited the parties’ ability to obtain records pertaining to "personal injury", and prohibited any medical care provider from disclosing any protected health information other than that which directly pertained to the alleged work-related injury. The order further expressly prohibited Alagasco’s attorneys from engaging in anyex parte discussions, conferences, interviews, and/or telephonic or email communications with any of the plaintiff’s healthcare providers without first providing notice to the plaintiff’s attorney.

Alagasco filed a Motion to Amend the HIPAA order, asserting that it prohibited certain methods of discovery that are allowed in workers’ compensation cases. The trial court set Alagasco’s Motion to Amend for hearing on December 20, 2017. However, two days prior to that, Alagasco filed a Petition for Writ of Mandamus with the Alabama Court of Civil Appeals, and also filed a Motion to Stay proceedings at the trial court level, pending the Court of Appeals’ resolution of its mandamus petition. At the December 20, 2017 hearing, the trial court denied Alagasco’s Motion to Stay. However, the judge stated "I think the HIPAA Order, to some degree, is due to be amended...there may be some revision that I acknowledge needs to be made".

Alagasco argued to the Court of Appeals that the HIPAA Order prohibits any meaningful opportunity on the part of Alagasco to make timely determinations of reasonableness, necessity, and relatedness of recommended medical treatment. It also argued that the order precludes any opportunity to ensure that the plaintiff is complaint with reasonable requests to submit to medical treatment as provided in the Act. However, the Court of Appeals denied Alagasco’s petition without ruling on the merits of Alagasco’s arguments. The Court of Appeals held that Alagasco failed to demonstrate that the trial court clearly exceeded its discretion, or that Alagasco lacked another adequate remedy by appeal. Judge Terry Moore wrote a concurring opinion, stating that while he agreed that the Petition for Writ of Mandamus was due to be denied, it was primarily because the trial court had not explicitly refused to act on Alagasco’s Motion to Amend the HIPAA Order.

MY TWO CENTS

Mandamus is an "extraordinary remedy", and is only available when the trial court clearly exceeds its discretion or refuses to act when it is required to do so, and there is no other remedy available. In this case, Alagasco’s Petition for Writ may have been a little premature, since the trial judge indicated that he was considering amending the order. While the Court of Appeals declined to decide the issue on the merits, Alabama is clear how the Courtshould have decided it if the Petition for Writ had been proper. The trial court has broad, but not unfettered, discretion in discovery matters. § 25-5-81(f) of the Alabama Workers’ Compensation Act provides that the same discovery rules apply to workers’ compensation cases as apply to other civil cases, with a few minor limitations aimed at reducing costs. The Supreme Court has previously held that a defendant has a right to contact, and even haveex parte communications with, a plaintiff’s treating physicians. See, Romine v. Medicenters of America, Inc.,476 So. 2d 51 (Ala. 1985). In Romine, the Court held that "No party to litigation has anything resembling a proprietary right to any witness's evidence...Unless impeded by privilege, an adversary may inquire, in advance of trial, by any lawful manner to learn what any witness knows if other appropriate conditions the witness alone may impose are satisfied...". Id. The Supreme Court has also held that a case manager has the right to contact a medical provider by telephone to obtain reasonably necessary information, allowing the employer to fulfill its statutory obligation to provide and oversee the employee’s medical care.Ex Parte Smitherman Bros. Trucking Inc., 751 So. 2d 1232 (Ala. 1999).

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.