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.
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.
2019 OFFICE DAYS FOR BRCS
ALABAMA CARRER CENTER
3216 4TH AVENUE SOUTH BIRMINGHAM, AL 35222
9:00 AM- NOON & 1:00 PM-3:00 PM
FEBRUARY 12, 2019 FEBRUARY 26, 2019
MARCH 12, 2019 MARCH 26, 2019
APRIL 9, 2019 APRIL 23, 2019
MAY 14, 2019 MAY 28, 2019
JUNE 11, 2019 JUNE 25, 2019
JULY 9, 2019 JULY 23, 2019
AUGUST 13, 2019 AUGUST 27, 2019
SEPTEMBER 10, 2019 SEPTEMBER 24, 2019
OCTOBER 8, 2019 OCTOBER 22, 2019
NOVEMBER 12, 2019 NOVEMBER 26, 2019
DECEMBER 10, 2019 DECEMBER 17, 2019
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.
Alabama Representative James Haynes ( R ) has recently introduced two bills related to cancer coverage for firefighters. Both of these bills were introduced on January 10, 2019 and are set to be read for the first time on March 5, 2019.
The first bill, HB2, will establish a rebuttable presumption of causation when a firefighter if diagnosed with cancer. Specifically, cancer for firefighters will be considered an occupational disease when it manifest itself in a paid firefighter during a period in which the firefighter was in service provided the firefighter demonstrates he or she was exposed, while employed by the Employer to a known carcinogen that is reasonably linked to disabling cancer. The cancer is presumed to arise out of the employment unless the Employer proves by preponderance of the evidence that the cancer was not caused by some other means. The bill does exclude firefighters who smoke or use other tobacco products. If the firefighter smoked or used other tobacco products then they lose the presumption and have to prove by preponderance of the evidence that the cancer was caused by the job. In addition, for the presumption to apply, the firefighter must demonstrate that they passed a physical upon entry into service with the Employer with no evidence of cancer and that, referenced above, they were exposed to a carcinogen.
The second bill, also introduced by Rep. Haynes, is HB18. This bill applies to retired firefighters who suffer from occupational exposure cancer which is diagnosed within 10 years for retirement. This bill would find that if the retired firefighter is diagnosed with occupational disease cancer within 10 years of retirement, they would be entitled to reimbursement of out of pocket expenses not covered by their health insurance or Medicare. These expenses would be owed by the Employer where the firefighter retired from. The bill states that no reimbursement would be owed for experimental treatment or travel out of treatment network unless the treatment was requested by the doctor and approved by their insurance. The bill specifically states that reimbursement would not be required if the cancer was caused by some other means than the occupation.
As stated above, both of these bills are set to be read for the first time on March 5, 2019. HB2 is scheduled to be referred to the House of Health Committee and HB18 is set to be referred to the House of Representatives Committee on Ways and Means General Fund.
We will continue to monitor these bills and update as they progress.
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.
In November of 2017, the Alabama State Bar appointed a task force to review the Alabama Workers’ Compensation Act and make recommendations for improvement. On October 17, 2018,the task force unanimously approved a proposed bill that contained substantial changes to the Act. Recently, the Alabama Council of Association Workers’ Compensation Self Insurance Funds (Council) voted to oppose the proposed bill. The Council, which represents self-insurance funds providing workers' compensation coverage for 16,200 Alabama businesses employing 375,000 people, primarily objects to the proposal because it would raise legal fees for plaintiff attorneys by one-third and do 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.
"While the Council is always willing to work with any group to make meaningful and fair improvements to Alabama workers' compensation law, any such negotiation must include all parties", the statement said. The Council was not included in the ABA appointed committee that drafted and approved the proposed bill.
My Two Cents
Although the Alabama Legislature could consider changes to the law when its Regular Session begins in March, it is unlikely that anything will get passed committee in light of the recent Council opposition and the fact that the neither Alabama Bar Association or the Workers’ Compensation Division of the Alabama Department of Labor are in a position to recommend the proposed bill or otherwise voice support. According to the ADOL, 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.
If changes of this magnitude are to have any chance of success in committee, there must be a consensus of all interested parties. That is not to say that it cannot get done. It is just a little optimistic to think it can get done in the next few months.
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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 January 4, 2019, the Alabama Supreme Court released its opinion in Ace American Insurance Company v. Rouse’s Enterprises, LLC d/b/a Rouses Markets wherein it reversed a trial court’s order dismissing the lawsuit for failure to prosecute. At the trial court level, Ace American Insurance successfully intervened in the lawsuit in order to protect its sizable subrogation lien. When the plaintiff failed to prosecute the case, the judge issued an order giving a set amount of time in which the plaintiff was to respond or the case would be dismissed. Although the plaintiff failed to respond, Ace American Insurance did respond seeking to keep the case pending so that it could take the necessary steps to protect its subrogation interest. Despite the response from Ace, the trial court dismissed the entire case. Ace appealed.
On appeal, the Alabama Supreme Court noted that Ace fully complied with the trial court’s order and set forth its intention to proceed against the defendant on its own. Since dismissals with prejudice are considered drastic sanctions that are only to be applied in extreme situations, the Court carefully scrutinized the trial court’s order and determined that judgment was due to be reversed.
My Two Cents
Interestingly, Ace’s subrogation lien concerned workers’ compensation benefits paid pursuant to a Louisiana claim. The Complaint for Intervention was filed in an Alabama Circuit Court by a Mississippi lawyer. Since the subject accident occurred in Alabama, the laws of Alabama apply to the lien recovery rights. Alabama Code Section 25-5-11(d) states that an employer or insurance carrier may bring a civil action directly against the alleged third party tortfeasor but only if the injured party (claimant) fails to file a civil action within the time allowed by law. In that event, the employer or insurance carrier is afforded an additional 6 months in which to bring a direct civil action against the third party. In this case, the claimant did bring a civil action within the 2 year statute of limitations. This begs the question, was the carrier’s right to proceed directly ever triggered? If not, this is definitely a loophole that needs to be corrected during the next major revision of the Alabama Workers’ Compensation Act.
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About the Author
This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.
Alabama 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.