State News : Alabama

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.