Senate Bill 1895 (Sen. Larry Taylor) was passed by the Texas Legislature and signed into law by Governor Abbot on May 26, 2017.  The bill amends the Texas Labor Code to require the commissioner of workers’ compensation in assessing an administrative penalty under the Texas Workers’ Compensation Act, to consider, in addition to other existing factors: (1) whether the administrative violation has a negative impact on the delivery of benefits to an injured employee, and (2) the history of compliance with electronic data interchange requirements.  The bill also requires the commissioner to adopt rules that require the Division, in the assessment of an administrative penalty against a person, to communicate to the person information about the penalty, including the relevant statute or rule violated, the conduct that gave rise to the violation, and the factors considered in determining the penalty.
 
The amended statute is effective on September 1, 2017.  --Erin Shanley, Stone Loughlin & Swanson, LLP  

We occasionally field questions about “EFA.”  This is a product that is being heavily marketed to Carriers, so we thought we’d address the procedure inThe Compendium. 
 
EFA (Electrodiagnostic Functional Assessment) is basically a surface (not needle) EMG done pre-employment and post-injury.  The stated goal of EFA is to age injuries and provide a potential defense to injury or aggravation claims.  
 
One vendor who aggressively markets this service claims that its technology is noted in ODG (the Division’s official treatment guideline)– the implication being that the ODG in some way endorses it.  However, EFA is not recommended by the ODG.  In fact, the ODG states, “surface electromyography, the primary technology used by this device, is not recommended for the diagnosis of neuromuscular disorders.”  Therefore, any claims made based on test results from the device could be very easily discredited.  Now you know.
 
As a substitute for “EFA”, the carrier or insured would be better-served by investing time and resources into clarifying a claimant’s diagnoses early on in a claim, before the horse is out of the barn and galloping away.   For example, in a motor vehicle accident, the adjuster should obtain crash photos, Texas Peace Officer’s crash reports, and ER notes, and conduct a full interview of the claimant immediately after the accident.  This strategy for claims management is well-known, economical, and time-proven.  --Erin Shanley, Stone Loughlin & Swanson, LLP

Gone are the days where a party can count on adding an issue to be adjudicated at a CCH at the last minute, without first raising the issue at the BRC or properly and timely requesting to add the issue after the BRC and before a CCH.  At least, maybe.  In a recent decision, the Appeals Panel found no abuse of discretion when the Hearing Officer found “no good cause” to add an extent of injury issue requested by the Claimant.  The issue was not raised at the BRC, the parties did not consent to adding the issue, and the Hearing Officer thus did not find good cause to add the issue.  Citing Downer v. Aquamarine Operations, Inc., 701 S.W.2d 238 (Tex. 1985) and Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986), the Appeals Panel found no abuse of discretion on the part of the Hearing Officer in denying the request to add the issue. 
 
Hopefully this will prevent the all-to-often scenario in which a Claimant attorney or ombudsman will move for a continuance at the very last minute (after the Carrier representative has fully prepared for and traveled to the CCH), citing an extent of injury issue that he neglected to either raise at the BRC or timely request to be added after receipt of the Benefit Review Officer’s report. 
 
As always, whether a party will be allowed to raise an issue at the CCH (or request a continuance on the basis of raising a new issue) will remain a fact-specific, case-by-case matter.  Nevertheless, the Appeals Panel has given Hearing Officers a decision that supports their not having to automatically grant a continuance at the eleventh hour.  --Erin Shanley, Stone Loughlin & Swanson, LLP

A man has filed suit in Tarrant County district court, alleging that his former employer, a mortuary, discriminated against him because he filed a workers’ compensation claim.  He claims he developed asthma after performing mortuary services on a man who had died from ingesting paint fumes in November 2016. He says he had not been provided with personal protective equipment and began to suffer chronic asthma after being exposed to the fumes. 
 
The employee also alleges a trauma claim occurring the following month, after he had been assigned to handle the bodies of a mother and 3-month-old son who had been decapitated.  (The decedents’ husband and father had been arrested in their deaths.)  He is claiming a post-traumatic stress reaction from performing the services on the victims.
                                               
The former employee is seeking monetary relief of $100,000 to $1 million. The suit alleges loss of earnings and mental anguish because the mortuary did not pay for his medical expenses, and terminated the employee two days after they learned he had filed for workers’ compensation.
 
The mortuary has issued a prepared statement, stating that the claims are without merit, that the suit contains information that is “both misleading and inaccurate,” and that the former employee “is making claims that didn’t come up until after his termination.”  --Erin Shanley, Stone Loughlin & Swanson, LLP 

Eleven years ago, a film titled Idiocracy was released.  In the movie, Luke Wilson plays an American of average intellect who wakes up 500 years into the future, only to discover that he is now, by far, the most intelligent person in the “dumbed down” society in which he finds himself.
 
Some might findIdiocracy an excellent metaphor for the Division’s current project to revamp the PLN (Plain Language Notice) forms. The Division is currently proposing revisions to plain language notices PLN-1 through PLN-12, and is proposing a new PLN-13 and PLN-14, intended to act as subsets of the PLN-3.  One of the stated goals for the proposed changes to the forms is to provide an emphasis on use of plain language and communication via a “simple and easy to understand” manner.  More specifically, the Division’s research apparently shows that the average claimant reads at a fifth-grade level, and that language on the current forms exceeds this reading level. 
 
Yes, you read this correctly– the Division wants to make the forms comprehensible to someone whose vocabulary is roughly equivalent to an eleven-year-old child.  As an example, below is the current language of the PLN-1, followed by its proposed revision:
                       
Current:
We are denying your claim for workers’ compensation benefits.  Workers’ compensation benefits, including medical benefits, are not being paid because _____.
 
Proposed:
We, [Name of carrier], looked at your workers’ compensation claim. Based on the facts we got about your claim, we are not going to pay income or medical benefits.&nbnbsp; The reason for this is_____.
 
The Division is proposing division of the the PLN-3 (Notification of MMI/First IIBs payment) into three different notices: the PLN-3, PLN-13, and PLN-14.  Each proposed form is to be used to report a different payment scenario when a claimant reaches clinical or statutory MMI.
 
Additionally, while the PLNs are forms prescribed by the Division, the new forms indicate that insurance carriers must print the PLNs on their own letterhead. 
 
At this time, there is no indication as to whether (or not) the Division has conducted any specific research or surveys to determine the reading level of injured employees in Texas.  However, many have expressed concern that revising the PLNs to simplify the reading level to that of a fifth grader may offend the many injured employees (not to mention other system participants) who read at a higher grade level.  Does “plain” language really equate to “dumbed-down” language, and if so, do the forms really warrant this drastic of a change?   
 

We’ll leave you to decide for yourself. The draft plain language notices are available on the TDI-DWC website atwww.tdi.texas.gov/wc/rules/drafts.html.   --Erin Shanley, Stone Loughlin & Swanson, LLP

Written By: Kyla Block

When Plaintiffs are injured at work under circumstances which raise the question of whether the precipitating activity was “in furtherance of” versus “incidental to” the job duties assigned and the employer’s interest, the North Carolina Courts will look closely at the nature of the activity and the behavior immediately prior to the incident to determine whether the injury arose out of and in the course of employment. If the underlying facts prevent a clear determination and application of the relevant law, the Court of Appeals will remand for further clarification. In a recent decision,Weaver v. Dedmon, the Court of Appeals did just that, ultimately remanding the case to the Full Commission for clarity on whether Plaintiff was in the actual performance of a direct job duty or whether he was performing an incidental activity, and whether this incidental activity constituted a reasonable action.

In Weaver, Plaintiff was employed as a fence builder and was required to regularly operate a forklift and move fencing supplies around the outdoor storage yard. Plaintiff testified that on the date of injury, he had just finished unloading supplies with the forklift and was about to return the forklift to the warehouse when he turned the forklift too quickly and it overturned. However, a witness approximately 350 feet from Plaintiff testified he heard the loud noise of equipment “running at a high throttle” and saw Plaintiff doing “donuts” with the forklift just prior to the accident. The witness saw no work materials and “there was no indication that there was any work being done.” Plaintiff sustained a crush injury, closed head injury, multiple fractures, liver and renal lacerations, splenic injury and cardiac arrest. The Defendants denied the claim and asserted that Plaintiff had not sustained an injury by accident or specific traumatic event arising out of and during the course and scope of his employment.

Following a hearing, the deputy commissioner entered an Opinion and Award denying Plaintiff’s claim in its entirety and the Plaintiff appealed to the Full Commission.

The Full Commission affirmed the deputy commissioner’s Opinion and Award, finding the witness’ testimony credible because the witness was an unbiased, disinterested eyewitness of the events immediately preceding the accident. The Commission also found credible testimony by an accident reconstruction expert that photos of the tire impressions at the scene of the accident were consistent with the forklift having been driven in tight circles. The Commission concluded that Plaintiff was “operating the forklift at such a speed to cause it to rollover,” he was “joyriding” or “thrill seeking” when the accident occurred, and this activity bore no relationship to accomplishment of the duty for which Plaintiff was hired. The Commission further concluded that “to the extent Plaintiff may have initially performed some work-related tasks with the forklift, his decision to do donuts . . . was too remote from customary usage and reasonable practice and constituted an extraordinary deviation from his employment.”

Plaintiff appealed to the Court of Appeals.

In remanding the matter back to the Full Commission for reconsideration of whether Plaintiff’s injuries arose out of and in the course of his employment, the Court of Appeals determined the Commission’s conclusions regarding the lack of relationship between Plaintiff’s activity on the forklift to the accomplishment of his employment duties and the proposition that Plaintiff may have initially been performing some work-related tasks with the forklift were findings of fact, not conclusions of law, as these determinations were reached through logical reasoning from the evidentiary facts.  The Court further concluded that the factual findings – one stating Plaintiff’s action of performing “donuts” bore no relation to his job duties and the other stating that Plaintiff may have initially performed some work-related tasks with the forklift – were inconsistent with each other and precluded the Court from determining whether the Commission’s findings supported the legal conclusion that Plaintiff’s operation of the forklift removed him from the scope of employment. Specifically, the Court found the Commission’s finding that Plaintiff “may have initially performed some work-related tasks with the forklift” undermined the Commission’s conclusion that the injury did not arise out of and in the course of employment. On remand for redetermination by the Commission, the Court directed the Commission to reexamine whether it found Plaintiff’s testimony that he was returning the forklift to the warehouse after using it for work purposes credible and what impact that finding would have the conclusion that “Plaintiff operated the forklift preceding his injury [in a manner that] was unreasonable and reckless, in essence joy riding and/or thrill seeking.” The Court specifically sought clarity on whether Plaintiff was operating the forklift in furtherance of – or incidental to – his job duties and his employer’s interest, as that would determine whether the work-related activity would be characterized as “actual performance of the direct duties of the job activities” or as “incidental activities” and would direct the Court to follow evolved precedent for each characterization. 

Judge Tyson dissented and argued that since the Commission found that Plaintiff “may” have been initially engaged in a work-related task at the time of the accident, the majority’s opinion asserting that the Commission’s findings failed to support the conclusion that Plaintiff’s injuries did not arise out of and in the course of his employment “unduly parses the Commission’s findings and conclusions” and fails to apply the plain and ordinary meanings of the Commission’s words. He further argued whether Plaintiff initially performed work-related activities was inconsequential because the employee carried the burden of proving a causal connection between the employment and the injury and in this case, the Commission found that Plaintiff’s joyriding or thrill seeking ultimately broke the causal connection between Plaintiff’s employment and his injuries. Thus, the Commission’s Opinion and Award denying Plaintiff compensation was consistent with precedent, supported by competent evidence, and should have been affirmed.

Given this attention to detail at the Court of Appeals, all parties defending these types of claims need to clearly delineate arguments at the Commission level which demonstrate a succinct break between the actual performance of the direct duties of the job activities and incidental activities which can be shown to be unreasonable. 

On May 19, 2017, the Alabama Supreme Court released its opinion in SSC Selma Operating Company, LLC, d/b/a Warren Manor Health & Rehabilitation Center and SavaSeniorCare Administrative Services, LLC v. Jackie Fikes in which it reversed the trial judge’s order denying the employer’s motion to compel arbitration of a retaliatory discharge claim brought pursuant to §25-5-11.1.

On appeal the Court noted that there was no question as to whether or not the employment dispute resolution program (hereinafter EDR Program), was valid and that the parties had agreed to be bound by it. However, the issue on appeal was whether or not the language in the EDR Program that stated disputes not covered under the EDR Program include claims that relate to workers’ compensation...would also exclude a retaliatory discharge claim filed pursuant to §25-5-11.1 of the Alabama Workers’ Compensation Act. §25-5-11.1 specifically states that an employee cannot be terminated solely for bringing a workers’ compensation claim. On appeal the employer stated that the EDR Program specifically stated that it covered employment matters related to termination, discrimination, retaliation and harassment and other legally protected rights. The employer acknowledged that the EDR Program specifically stated that disputes not covered under the program are ones that relate to workers’ compensation, unemployment benefits, health, welfare and retirement benefits and claims by companies for injunctive relief to protect trade secrets and confidential information.

On appeal, the employee relied solely on the provision that stated claims related to workers’ compensation are not covered under the EDR Program and argued that the language was plain and unambiguous and, therefore, the discharge claim pursuant to §25-5-11.1 should be excluded from the EDR Program. However, the employer argued that, while the Alabama Workers’ Compensation Act gives rise to the discharge claim, that the retaliatory discharge claim pursuant to §25-5-11.1 is not a claim in the nature of a workers’ compensation claim and is actually a tort claim that was clearly intended to be included in the EDR Program requiring arbitration. In its opinion, the Supreme Court stated that it was apparent from the language in the EDR Program that the intent of the program was to submit to arbitration those employment related disputes where the plaintiff would ordinarily be entitled to have resolved by a jury, specifically noting claims arising from tort law and not claims governed by specific statues such as the Workers’ Compensation Act. The Court specifically stated that while a discharge claim pursuant to §25-5-11.1 arises out of the workers’ compensation factual setting, the claim is never the less a tort action and governed by general tort law. This includes the ability to recover damages for mental anguish and lost wages. The Court noted that while there are claims that relate to workers’ compensation laws, that those claims are generally for occupational disease and accident injuries as opposed to claims alleging retaliatory discharge. They also pointed out that the two claims, a workers’ compensation claim and tort claim (retaliatory discharge claim), are mutually exclusive.

In conclusion, the Supreme Court stated that the trial court erred in denying the employer’s Motion to Compel Arbitration of the employee’s retaliatory discharge claim since it was the clear intent of the EDR Program to have employment related disputes such as a retaliatory discharge claim brought pursuant §25-5-11.1, resolved by arbitration as opposed to a jury trial. Therefore, the Court held that the employee’s retaliatory discharge claim was not “related to” disputes concerning workers’ compensation laws, which are governed by the Workers’ Compensation Act, and are instead governed by the general rules of tort law.

ABOUT THE AUTHOR                

This 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 worker’s 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 Worker’s Compensation Defense Network (NWCDN). The NWCDN is a national network of reputable law firms organized to provide employers and insurers access to the highest quality of representation in workers’ compensation and related employer liability fields. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Mr. Holden by emailing him at jholden@fishnelson.com or calling him directly at 205-332-1428.

By: Courtney Britt

In recent years, attendant care provided under North Carolina’s Workers’ Compensation Act has gotten quite a bit of attention in the appellate courts and at the General Assembly.  In particular, the Court of Appeals’ 2011 decision inShackleton v. Southern Flooring & Acoustical Company presented a challenge for employers.  Reversing the Commission’s denial of an attendant care claim by the injured worker’s spouse,Shackleton adopted a “flexible case-by-case approach,” which allowed the Commission to consider a wide variety of evidence, including: “a prescription or report of a healthcare provider; the testimony or a statement of a physician, nurse, or life care planner; the testimony of the claimant or the claimant’s family member; or the very nature of the injury.”

Shackleton was seen as a departure from existing case law because attendant care claims could be proven with only the testimony of the claimant or the claimant’s family, or the nature of the injury itself.  The decision also suggested that there was no time limit on when attendant care services could be requested, causing concern for significant retroactive attendant care awards.  Partly in response toShackleton, the General Assembly revised N.C.G.S. § 97-2 (19) in 2011 to require that attendant care be, “prescribed by a health care provider authorized by the employer or subsequently by the Commission[.]” This revision was intended to put more parameters on when attendant care is provided, by requiring a prescription.

Recent decisions by the Court of Appeals, in Thompson v. International Paper Co. andReed v. Carolina Holdings, Wolseley Mgmt., reveal how the courts may treat attendant care going forward, but leave many questions for employers. 

On February 23, 2012, Darrell Thompson suffered severe burns at work, required three major skin graft surgeries and received treatment at the UNC Burn Center.  Mr. Thompson’s doctor testified following a hearing that Mr. Thompson would require some level of attendant care the rest of his life, but confirmed that he had never written a prescription for attendant care.  Instead, the doctor testified that he left these decisions to the hospital social worker who wrote that Ms. Thompson would provide Mr. Thompson’s “attendant and wound care.” 

Ms. Thompson was awarded attendant care services by the Deputy Commissioner, and the Full Commission affirmed, but terminated attendant care services in 2012.  On January 17, 2017, inThompson v. International Paper Co., the Court of Appeals reversed the termination of attendant care, holding that a written prescription for attendant care services is not required under N.C.G.S. § 97-2(19) and a verbal prescription can suffice.  The Court acknowledged the Commission cannot rely solely on lay testimony to award for attendant care, but concluded that Mr. Thompson’s social worker’s letter was a “written expression” of his physician’s verbal directive for attendant care. 

Christopher Reed sustained a traumatic brain injury in 1998, which Defendants accepted as compensable.  On March 18, 2011, Mr. Reed filed a hearing request seeking attendant care.  Based on lay and medical testimony, the Deputy Commissioner awarded attendant care reimbursement to Mr. Reed’s mother from the date of injury to present and ongoing. 

The Full Commission denied Mr. Reed’s request for attendant care before the hearing request, because he did not seek approval of attendant care services or provide defendants with notice of this request until the hearing request.  Attendant care was awarded from March 18, 2011, and ongoing. 

On February 7, 2017, in Reed v. Carolina Holdings, Wolseley Mgmt., the Court of Appeals affirmed, relying on hearing testimony by Mr. Reed’s mother and post-hearing deposition testimony by Mr. Reed’s doctor.  The Court citedShackleton, stating the Commission can rely on, “a prescription or report of a healthcare provider; the testimony or a statement of a physician, nurse, or life care planner; the testimony of the claimant or the claimant’s family member; or the very nature of the injury[,]” when awarding attendant care.”

Thompson and Reed demonstrate the tension between the 2011 reforms to § 97-2 (19) and the Court of Appeals’ prior decision inShackleton.  Thompson acknowledges that § 97-2 (19) rejects the flexible case-by-case approach announced inShackleton. However, in Reed, the Court did not discuss and it does not appear the parties argued that § 97-2 (19) changes the law.  Also, both cases suggest that a written prescription is not necessary for attendant care and that the Commission may rely on lay and physician testimony to establish that ongoing attendant care is necessary. 

Until the appellate courts clarify the application of § 97-2 (19), employers and insurers will continue to face uncertainty.  Where attendant care issues arise, or are anticipated, employers should consult with defense counsel to proactively develop strategies to reasonably resolve these issues.   

A few days ago, we reported on the recent case of Nora Clower v. CVS Caremark, in which the Circuit Court of Jefferson County entered an order declaring The Alabama Workers’ Compensation Act unconstitutional. My initial knee-jerk reaction, like the reaction of many others, was that it would have state-wide implications on workers’ compensation law in Alabama. The sky was falling, and the workers’ compensation system as we know it just came to a screeching halt. However, spending a lot of time pouring over the order, the background of the case, and applicable Alabama law, I now have amuch different take on it.

For starters, I think it’s important to give a little more of the relevant background of the case. Clower filed her Complaint on November 20, 2013. In her Complaint, she alleged only a workers’ compensation claim arising out of an alleged accident occurring in and arising out of her employment with CVS on June 30, 2013. Clower did not allege any tort claims against CVS in her original Complaint, and she did not subsequently amend her Complaint to add any other claims against CVS. This is significant, because, ostensibly, if The Alabama Workers’ Compensation Act were to be struck down, the exclusivity provisions of the Act would go down with it.

Next, it’s important to understand that the Court’s May 8, 2017 order declaring the Act unconstitutional did not just come out of the clear blue sky. That order was the Court’s ruling on Clower’s "Motion for Relief: Constitutional Challenge to Two Statutes". Clower filed that motion on January 31, 2017, and CVS filed its response to that motion on February 10, 2017. When Clower filed her motion, she directed it to be served upon Alabama Attorney General Luther Strange, who was at that time serving his final days as the A.G. The Alabama Declaratory Judgment Act requires, among other things, that when the constitutionality of a statute is challenged, the Attorney General must be served with the pleading which raises the challenge, so that he has an opportunity to defend the statute in question.

As you may recall, then-Senator Jeff Sessions was nominated for the position of United States Attorney General by President-elect Donald Trump shortly after the November election. Senate Judiciary Committee hearings on Sessions’ nomination began on January 10, 2017, and Sessions was confirmed on February 8, 2017. Of course Sessions had to immediately resign his Senate seat, and none other than Attorney General Luther Strange was then appointed to take Sessions’ place, on February 9, 2017, thus leaving the Alabama Attorney General position temporarily vacant. Three days later, Steve Marshall was sworn in as the new Alabama Attorney General. Needless to say, there wasjust a little bit of chaos at the Alabama Attorney General’s office between the time Clower filed her motion on January 31 and April 25, when Marshall was finally served with Clower’s motion.

The most important factor in the ultimate implications of the Circuit Court’s decision, however, lies in Alabama Code § 6-6-227. That section, which is part of the Alabama Declaratory Judgment Act, provides in its pertinent part:

"All persons shall be made parties who have, or claim, any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding..."

In other words, when a party is seeking a declaration of law, such as a declaration by the court that a particular statute is unconstitutional, everyone whose interests would be affected by the declaration must be made a party. In the event that doesn’t happen, the declaration shall not prejudice the rights of anyone who is not a party to the action. InGuy v. Southwest Alabama Council on Alcoholism, 475 So.2d 1190 (Ala.Civ.App. 1985), the Alabama Court of Appeals held that when a party challenges the constitutionality of any provision of The Alabama Workers’ Compensation Act, the provisions of The Alabama Declaratory Judgment Act are triggered. That means that Clower’s motion triggered § 6-6-227. Yet, the only parties to the action are Clower and CVS Caremark. Yes, Steve Marshall was served with the motion, and yes Marshall declined to defend the Act (whether that was due to the curious timing of the motion, or some other reason). However, that does not change the fact that the only parties that would be affected by the Circuit Court’s recent ruling are Clower and CVS Caremark. In any other court, in any other county, involving any other parties, The Alabama Workers’ Compensation Act is still constitutional. The only way that would ever change isif CVS appeals the Circuit Court’s ruling, and the appellate court(s) affirm the Circuit Court.

It may seem like a foregone conclusion that CVS will appeal. I mean, surely CVS Caremark will appeal to avoid the possibility of facing tort liability, right? They may not. Since Clower only alleged a workers’ compensation claim, she would have to amend her Complaint in order to sue CVS in tort. The problem for Clower though, is that every conceivable statute of limitations for any tort claims against CVS have long since expired. If she ever had a viable tort claim against CVS, she can no longer bring such a claim, because it would be time-barred. Additionally, it is possible that Clower could now be judicially estopped from arguing that she is entitled to workers’ compensation benefits. In other words, if the Circuit Court’s order becomes final and is never overturned by the Court of Appeals or Supreme Court, Clower could conceivably recovernothing from CVS.

Whether you believe CVS will appeal or not appeal, it should be interesting to see how this plays out in the next 4 months.

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.