State News : Alabama

NWCDN is a network of law firms dedicated to protecting employers in workers’ compensation claims.


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.


Alabama

FISH NELSON & HOLDEN, LLC

  205-822-6611

In Alabama, all disputed workers’ compensation claims are handled through the regular court system.  Alabama is the only remaining state to handle disputed claims in this manner.  The statute of limitations (“SOL”) for filing a workers’ compensation lawsuit is 2 years from the date of injury or date of last indemnity payment.  For cumulative trauma or exposure claims, it is 2 years from the date of last exposure.  One exception to the 2-year SOL is if the claimed injury was latent and could not reasonably have been discovered until a later date.

In the recently released opinion of Dillard v. Calvary Assembly of God, the Alabama Court of Appeals affirmed and clarified that a latent injury exception to the SOL is not applicable to situations where a reasonably minded employee knows they have a compensable injury even when there has been no lost time from work. Further, an injury will not be considered latent based on the employee not knowing the full extent of the injury.   In Dillard, the employee testified that he had frequent low back pain.  Despite being off work following each of his two back surgeries, he never claimed and did not receive temporary-total-disability benefits.  As a result, the trial court concluded that a reasonable person would have known the nature, seriousness, and probable compensable nature of the work-related injury as of the date the first surgery was recommended as a possible treatment option.

 

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.

Although not exactly a broad sweeping reform of the Alabama Workers’ Compensation Act, the Alabama legislature recently amended the statutory definitions of  “employer” and “employee”.  

Effective July 1, 2022, a marketplace platform is no longer considered an “employer”, and a contractor that works for a marketplace platform is no longer considered an “employee” for purposes of workers’ compensation.  Under Alabama law, a marketplace platform is an entity that offers a digital network or mobile application that connects potential customers to service providers, and accepts service requests exclusively through the digital network.  Examples of marketplace networks Uber, DoorDash, and Buzd.  In order to be excluded from coverage, the marketplace platform and contractor must agree in writing that the contractor is an independent contractor, the platform cannot unilaterally prescribe specific hours during which the contractor must be available to accept service requests, the platform cannot contractually prohibit the contractor from accepting service requests for other platforms or engaging in another occupation or business, the platform cannot mandate furnished equipment or tools essential for the performance of the work (except as required by law or for safety reasons), and the contractor must bear substantially all of the expenses they incur in performing services.  


About the Author


This blog submission was written by Charley Drummond, 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 Mr. Drummond by e-mailing him at cdrummond@fishnelson.com or by calling him directly at (205) 332-3414.

Fresh on the heels of COVID-19, reports of monkeypox outbreaks in the United States are starting to get the attention of employers.  Monkeypox is a rare disease caused by infection with the monkeypox virus. Monkeypox symptoms are like smallpox symptoms, but milder and rarely fatal.

 

Monkeypox will not rise to the level of a pandemic because it does not transmit as quickly as the coronavirus and stopping it will not require dramatic interventions like the COVID-19 lockdowns.

 

The White House recently declared the virus a public health emergency with over 7,000 confirmed cases in the U.S.  A county in California declared monkeypox a public health emergency earlier this week with 59 probable/confirmed cases within that county.

 

A news release from the Alabama Department of Public Health said as of August 8, 2022, there were 19 cases of monkeypox in Alabama. 

 

As with COVID-19, it is conceivable that workers’ compensation claims will be made for monkeypox.  For the same reasons that COVID-19 WC claims were denied in Alabama, claims for monkeypox will also likely be denied.

 

In Alabama, an occupational disease is defined as “a disease arising out of and in the course of employment… which is due to hazards in excess of those ordinarily incident to employment in general and is peculiar to the occupation in which the employee is engaged but without regard to negligence or fault, if any, of the employer.”

 

Therefore, for the monkeypox virus to be considered compensable in Alabama, the employee would have to be able to prove that contracting it was due to hazards in excess of those ordinarily incident to employment in general and that it is peculiar to the employee’s occupation. 

 

It will be difficult for an employee to show that contracting the virus resulted from a risk of employment.  The reason being that, like the flu, you face the same sort of risk when you go home or when you walk about in public.  Some state laws have presumptions for health care workers or first responders.  Alabama is not one of those states.  Without a statutory presumption in place, it would be nearly impossible to prove causation. 

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 July 1, 2022, the mileage reimbursement rate for Alabama has been increased to 62.5 cents per mile, and 4 cent increase over the first half of 2022.


About the Author


This blog submission was prepared by Charley Drummond, 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 Mr. Drummond by e-mailing him at cdrummond@fishnelson.com or by calling him directly at (205) 332-3414.


The Alabama Supreme Court recently affirmed summary judgment in favor of Pilgrim’s Pride Corporation and its third-party workers’ compensation administrator, Sedgwick Claims Management entered by the Circuit Court of Franklin County, Alabama in regard to a claim for the tort of outrage brought by Florence King.  King initially asserted a workers’ compensation claim against Pilgrim’s Pride in October 2012, claiming that she suffered injuries to both shoulders and arms as a result of the repetitive nature of her job on Pilgrim’s Pride’s production line.  Although Pilgrim’s Pride disputed the compensability of King’s alleged injuries, it nevertheless provided King with medical treatment, which included surgery on one of her shoulders and pain management.  After King’s doctors determined she had reached maximum medical improvement, the claims adjuster at Sedgwick reached out to King and offered to settle her case as disputed.  King initially accepted the settlement offer, but then changed her mind.  When additional treatment prescribed by King’s treating physicians was not approved, King sued Pilgrim’s Pride for workers’ compensation benefits.  She also sued Pilgrim’s Pride and Sedgwick asserting a claim of outrage, for what she claimed was intentional infliction of emotional distress due to a delay in approving medical treatment related to her alleged injuries.  Pilgrim’s Pride denied the allegations of King’s Complaint, asserting that her alleged injuries were not compensable.  The workers’ compensation case proceeded to trial in September 2020.  The parties stipulated that the only issue in dispute at trial was whether King’s alleged injuries were compensable.  King’s orthopedist testified that he did not have a firm conviction as to whether King’s job duties caused or contributed to her alleged injuries.  However, the trial court found King’s alleged injuries compensable.  


Thereafter, both Pilgrim’s Pride and Sedgwick filed motions for summary judgment as to King’s outrage claim.  The defendants asserted that since the compensability of King’s alleged injuries was disputed, they had no duty to provide King with medical treatment until the trial court found those alleged injuries compensable.  The trial court agreed, and entered summary judgment in their favor.  King then appealed to the Supreme Court, and the Court affirmed the trial court’s decision without writing a formal opinion.


My Two Cents


Outrage is an extremely limited cause of action.  In order to prevail on a claim for the tort of outrage, a plaintiff must prove by clear and convincing evidence that the defendant intended to inflict emotional distress and that the defendant’s outrageous and extreme conduct caused emotional distress so severe that no reasonable person could be expected to endure it.  Alabama law has long held that a defendant cannot be liable for the tort of outrage by merely insisting on its legal rights – even if the defendant knows that doing so is likely to cause severe emotional distress.  Alabama law has also long held that it would be a violation of an employer’s right to due process of the law to require it to provide workers’ compensation benefits when there is a bona fide dispute as to the employer’s liability for the injury.  Therefore, the Supreme Court’s decision affirms the fact that an employer (or its insurer) cannot be found guilty of outrageous conduct for denying workers’ compensation benefits when there has been no admission or legal adjudication that the underlying injury is compensable.  


About the Author


 This blog submission was prepared by Charley Drummond, 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 Mr. Drummond by e-mailing him at cdrummond@fishnelson.com or by calling him directly at (205) 332-3414.

Alabama’s Exclusivity Doctrine Fails to Protect Employer from Wrongful Death Claim Following Employee’s Fatal Heart Attack at Work

 

The Alabama Supreme Court recently denied a petition filed by a large retail chain for a Writ of Mandamus. The petition was filed as the result of the trial court denying the defendant employer’s motion for judgment on the pleadings. It was the position of the employer that its employee’s wrongful death claim was barred by the exclusive remedy provision of the Alabama Workers’ Compensation Act.  The only written opinion was authored by Justice Mitchell who dissented. Justice Mitchell explained that any injury that an employee suffers because of employer provided treatment following a work accident should be considered as arising out of the employment. He also noted that the Alabama Supreme Court had previously held that the existence of an employer/employee relationship between a decedent and a defendant at the time of death triggered the exclusivity doctrine and made workers’ compensation death benefits the sole remedy for the decedent’s dependents.

 

 

Alabama Supreme Court Makes Emergency Pandemic Rule Regarding Settlement Procedure Permanent

 

On December 30, 2021, the Alabama Supreme Court adopted Rule 47 of the Alabama Rules of Judicial Administration, providing that a Circuit Court shall dismiss any pending action seeking workers’ compensation benefits when (1) the parties have reached a settlement, (2) the settlement has been reviewed and approved by an Alabama Department of Labor Workers’ Compensation Division Ombudsman, and (3) the parties file the approved settlement agreement, along with a joint stipulation of dismissal with the Court.

 

About the Author

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 the sole Alabama 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 30, 2021, the Alabama Court of Civil Appeals released an opinion in Kevin Patrick v. Mako Lawn Care, Inc. wherein it addressed the compensability of an assault by a co-employee. The altercation was the result of a feud between two lawn care crews. The member of one crew took the other crew’s mower home for personal use. To retaliate, a member of the other crew did the same thing. After that, words were exchanged. The situation escalated into a physical fight resulting in injury. The trial judge entered judgment for the employer because the altercation did not arise out of the employment, the employer did not benefit from the altercation, and that the plaintiff was an active participant and the aggressor. The Court of Appeals agreed that the law was correctly applied to the facts but that it did not necessarily agree with all the language and reasoning in the trial court’s final order.

 

My Two Cents:

 

In his appellate brief, the plaintiff argued that the trial court’s reliance on a 1927 decision as controlling was misplaced because there were more recent decisions with a more liberal view on work altercations. The Court of Appeals, however, noted that the 1927 case was still controlling and the plaintiff would have to petition the Alabama Supreme Court to overrule the older case. Ultimately, the plaintiff elected not to do that and risk creating bad law (well… bad for the plaintiff’s bar anyway).

 

About the Author

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 the sole Alabama 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 August 22, 2021, the Alabama Supreme Court issued Administrative Order No. 13, which declared a temporary state of emergency for the entire Judicial Branch of the State of Alabama due to recent increases in COVID-19 infections.  The Order expressly provides that, subject to any party’s substantive or constitutional rights, any Alabama rule or statute that impedes a judge's or court clerk's ability to utilize available audio/visual technologies is suspended until November 29, 2021. 

 

Judges are now temporarily authorized to use their discretion to allow any discovery, testimony, appearance, proceeding, hearing, review, or bench trial to be conducted by audio/video technologies upon making a written finding that, for good cause shown, time is of the essence for the administration of justice.

 

About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third-party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

 

The Alabama Supreme Court recently released its opinion in Jackson v. Voncille Allen and Penn Tank Lines, Inc. The plaintiff, Patrick Jackson, was riding in the passenger seat of a commercial vehicle being operated by Valerie Allen, an owner/operator leased to Penn Tank Lines (PTL).  Allen was killed in the accident, and Jackson alleged severe injuries.  Jackson sued Allen’s estate, asserting that Allen’s negligence had caused the accident, and asserted claims of negligent hiring, training, and supervision against PTL, as well as vicarious liability for Allen’s actions through the doctrine of respondeat superior.   Allen’s estate claimed it was entitled to immunity pursuant to § 25-5-53 of The Alabama Workers’ Compensation Act, which provides that agents of the same employer are immune to civil liability, except those based on willful misconduct.  PTL claimed it was immune pursuant to § 25-5-52 and § 25-5-53 as Jackson’s employer and because Allen was PTL’s agent.  


In support of its position, PTL argued that it was leasing the commercial vehicle from Allen and had exclusive possession, control, and use of the vehicle.  PTL also asserted that Allen was training Jackson at the time of the accident, and that Allen was therefore an agent of PTL.  Finally, PTL asserted that under Federal Motor Carrier Safety Administration (FMCSA) regulations, an owner/operator of a commercial vehicle, despite her status as an independent contractor, is deemed to be an employee of the motor carrier while operating the commercial vehicle.  PTL and Allen’s estate both filed motions for summary judgment, and Jackson argued that there were genuine issues of material fact as to whether Allen’s estate and PTL were entitled to immunity.


In support of his position, Jackson pointed out that the independent owner/operator agreement between Allen and PTL specified that Allen would use her own judgment when conducting her work, PTL could not require Allen to accept specific assignments, and that PTL had not withheld taxes from Allen’s pay.  Jackson further asserted that although Allen had been required to comply with PTL’s policies and procedures, Allen was required to provide her own safety clothing, shoes, and equipment.  The trial court entered summary judgment in favor of both defendants, and Jackson subsequently appealed.  


The Supreme Court affirmed summary judgment in favor of PTL as Jackson’s employer, but reversed the trial court’s judgment to the extent that it found Allen was PTL’s agent as a matter of law.  The Supreme Court noted that the test for determining whether one is an agent or an independent contractor is whether the principal/employer retained a right of control, and that such determination was a question of fact that should generally be decided by the jury.  However, the decision was not unanimous.  Justices Bolin and Sellers concurred in part and dissented in part, stating that it is possible for someone to be both an independent contractor and an agent at the same time.  However, both agreed the undisputed material facts established that Allen was acting as an agent at the time of the accident. 


About the Author


This blog submission was prepared by Charley Drummond, 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 cdrummond@fishnelson.com, or calling him directly at (205) 332-3414.


On July 28, 2021, the Alabama Supreme Court issued Administrative Order No. 12, which extended its previous orders concerning workers’ compensation settlements. This means that the following rules will be in effect through October 29, 2021:

 

1. Any workers’ compensation settlement hearing in any court may be conducted telephonically or by videoconferencing.

 

2. Any workers’ compensation settlement may be approved by an ombudsman of the Alabama Department of Labor (ADOL) or by a circuit judge. If a workers’ compensation case pending in court is settled with written approval of an ombudsman from the ADOL, that settlement shall result in the dismissal of the workers’ compensation claim pending in court.

 

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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.