State News : Alabama

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 1-4 for anyone who wants to submit a settlement for their review. There is no need to make an appointment for these times, just drop by and sign in.  The new Career Center located at 3216 4th Avenue South (Birmingham).

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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.

As many of you know, an Alabama Circuit Judge recently issued an Order declaring the entire Alabama Workers’ Compensation Act unconstitutional.  As a result, there have been many questions as to whether the constitutional issue would be appealed and what effect, if any; the ruling would have on other Alabama cases.  The case in which the Order was issued recently settled which nullifies any chance of the constitutional issue reaching a higher court, at least in that case.  As a result of this recent constitutional attack, the Alabama State Bar Association has appointed a task force to research the workers’ compensation laws of surrounding states in an effort to try to revise or amend certain provisions of the Alabama Workers’ Compensation Act. While we can expect that a focus will be put on the $220.00 cap on permanent partial disability and the 15% contingency fee, other parts of the Act will be examined as well.

We will continue to report as this issue progresses or stalls.

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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 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 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.

In the wake of the recent shooting in Las Vegas, numerous news reporting agencies have expressing shock and disbelief over California’s denial of workers’ compensation benefits to its police officers that were injured during the attack. Most people believe that police officers should be beneficiaries of workers’ compensation benefits when they place their lives on the line to protect and serve, even when working off duty. Unfortunately, extending benefits to these heroes is not that simple.

Without being deputized, an officer’s ability to act in any official capacity ends at the state line. Even federal law enforcement officers have to be deputized by a state before they are able to enforce that state’s law. This mechanism protects state sovereignty, and is also a Constitutional right that expressly reserves general "police power" to the state. Because they were not deputized, the California police officers were acting as private citizens.

Of note, it would not be handled any differently in Alabama. While Alabama does extend workers’ compensation benefits to police officers when they sustain injuries while acting in a law enforcement capacity (whether they are technically on duty or not), the reach of those benefits has not extended to officers outside the confines of the state. Thankfully, no Alabama officers were injured in Las Vegas.

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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.

The Supreme Court recently released its opinion in Louis Hall v. Bobby Saarinen and Chris Williams, in which it reversed the trial court’s denial of the co-employee defendants’ motion for summary judgment regarding the plaintiff’s personal injury claim.  The plaintiff was injured by a saw while at work, and he sued his employer and two supervisory co-workers in tort.  The employer was dismissed from the action pursuant to the Exclusivity Doctrine.  In his amended complaint, the plaintiff alleged that the co-employees defendants “caused or allowed the removal of a guard from the saw” and “failed to install a safety guard provided for the saw”  and “failed to replace the unguarded saw with a new guarded saw.” 

The saw (Kalamazoo brand) that was used by the employer had a manufacturer-installed guard.  At some point prior to the incident, the plaintiff expressed concern to his employer that the guard was not adequate, and so at the plaintiff’s request, the employer installed an additional guard to better shield the saw when it was lifted up.  Thereafter, the employer purchased a new saw (DeWalt brand), but because they were in their busy season, the employer had not yet installed the new saw for use.  The question at issue before the Supreme Court was whether the presence of another saw on the premises, that had not yet been installed and was not from the same manufacturer, constituted the removal of a safety device under Ala. Code 25-5-11(c)(2).

The Court found that there was no evidence indicating that the co-employees failed to install a guard provided by the manufacturer or that they failed to maintain or repair the guard provided.  Although an additional safety guard was installed on the original saw, that guard was not an “alternative safety device” because the original guard was not by-passed.  The Court concluded that the failure to install another, presumably safer, saw from a different manufacturer that was present on the premises but that had not been put into operation is not the equivalent of the removal of a safety device, and thus does not constitute willful misconduct under Ala. Code 25-5-11(c)(2).

The Court expressly declined to give an opinion as to whether the presence of a new (presumably safer) machine on the premises made by the same manufacturer as the machine that injured an employee would constitute willful misconduct by a co-employee.

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About the Author

This blog submission was prepared by Mary Stewart Nelson Thompson, 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 Mary Stewart Nelson Thompson by e-mailing her at msnelson@fishnelson.com or by calling her directly at 205-332-3430.

The Alabama Workers' Comp Blawg is 10 years old!  We would like to take this time to thank all of our readers who have helped to makehttp://www.alabamaworkerscompblawg.com a go to reference for Alabama workers' compensation!  We would also like to take this opportunity to wish a happy birthday to Scott Baio, Joan Jett, Bilbo Baggins, and Tommy Lasorda.  Next year we need to have a group party!

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

The Alabama Court of Civil Appeals recently released its opinion in Ex parteGarrison Trucking Co., wherein it considered the issue of venue.

The Old Rules

In venue disputes, your residence means your permanent home: the place you plan on returning to after an extended absence, as opposed to a place of temporary residence, such as a beach house. In determining where an Alabama employee resides, the Court looks for evidence of the employee’s intent. Typical things that have been considered indicative of where an employee intends to reside are their own representations of their lawful residence on documents, such as where they get their mail and the address listed on bills.

There is one consideration that has always been treated as the smoking gun: the county where someone registers to vote. In the past, registering to vote in a certain county has been considered to answer the question of where someone resides. Put simply, if you register to vote in Mobile County, you reside in Mobile County.

The New Rules

In Ex parte Garrison Trucking Co., the employee claimed he resided in Washington County on the date of the accident and the employer claimed the employee resided in Mobile County. The Court concluded the evidence indicated the employee lived in Washington County.

The employer presented evidence showing the employee received his mail at the Mobile County address, listed the Mobile County address as his residence on multiple documents, including his job application and medical records, he received medical treatment in Mobile County for his alleged work related injury, and evidence that he registered to vote in Mobile County in 2016. The employer’s evidence spanned from March 2014 through May 2016, which presented an essentially uninterrupted timeline. 

The employee claimed that he had lived in Washington County for the past 15 years. However, out of all of the documents he submitted, he did not submit any documents that showed he resided in Washington County in 2014. Rather, the only evidence he submitted were documents from 2011, 2013, and 2015. Furthermore, his evidence consisted of two pistol permits, his drivers’ licenses, a vehicle registration, loan documents, and a Transportation Worker Identification Credential card thatexpired on April 20, 2014. The employee also told the Court he became one of the owners of the Mobile County address when his mother died in 2013, but he did not submit any other evidence showing he owned the property. Considering he claimed it was his residence for the past 15 years, it should not have been difficult to obtain better evidence.

After reviewing the evidence, the Court concluded “other than documents listing an address,no evidence was presented to show that [the employee] resided or intended to reside at the [Mobile County] address.” The Court discounted evidence that has historically been regarded as sufficient for purposes of establishing a person’s residence or a person’s intent to reside (i.e. county of voter registration).

In support of its finding, the Court stated that “there was no evidence from neighbors indicating that [the employee] appeared to be living in [Mobile County] or that he was involved in church or community activities in [Mobile County].”

Conclusion

According to the Alabama Court of Civil Appeals, to prove where an employee resides, the employer has to prove the employee actually lives there and that the employee is an active member of that community. Voter registration is no longer a determinative factor.  If the employee is a hermit that merely owns property in another county, or has any recent connections to another county, you may be out of luck.

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This article was written by Ashleigh Hunnicutt, an attorney at Fish Nelson & Holden, LLC in Birmingham, Alabama. Fish Nelson & Holden is dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Ashleigh and her firm are members of The National Workers’ Compensation Defense Network. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact Ashleigh atahunnicutt@fishnelson.com or (205) 271-7626.

The Alabama Court of Civil Appeals recently released its opinion in Kirby v Jacks Family Restaurants, LP.In that case, the plaintiff filed claims for workers’ compensation benefits, retaliatory discharge, and the tort of outrage against Jacks, its insurance fund, its third party administrator, and its case management company. All of the defendants filed Motions to Dismiss the outrage claim and the trial court granted them. The trial court further certified the judgment on the dismissal of the outrage claims to be a final judgment for purposes of appeal. However, the Court of Appeals held that even though the Order contained language certifying it as final, such certification was not appropriate in the case because the plaintiff’s workers’ compensation and retaliatory discharge claims were so intertwined with the outrage claims. The Court of Appeals noted that the plaintiff relied on facts and circumstances surrounding her injury and her termination to support her claim for the tort of outrage, and that she would rely on the same set of underlying facts in her remaining claims. The Court of Appeals held that it is improper for the trial court to certify a dismissal as "final" when at least some of the issues presented in the claim still pending in the trial court are the same as the issues presented in the claims addressed in the judgment, and repeated appellate review of the same underlying facts would be a probability in the case. Therefore, the Court of Appeals dismissed the plaintiff’s appeal as having been taken from a non-final judgment.

My Two Cents:

When tort claims accompany a workers’ compensation claim, it is common for the trial court to either sever the claims completely and assign new case numbers or keep the claims together and hold separate trials. When the trial court merely orders separate trials, the claims remain joined in one civil action, and any order disposing of anything less than all of the claims and all of the parties will generally not be considered a final order for purposes of appeal. The trial court may include language in an order certifying the order as final (as in this case), but sometimes, that is still insufficient to render an order final for purposes of appeal. On the other hand, if a tort claim is severed from a related workers’ compensation case (assigned a separate civil action number), an order granting summary judgment would be a final order for purposes of appeal. Therefore, it is often wise to ask the trial court to sever an outrage claim, rather than only asking for separate trials.

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.

The Supreme Court recently released its opinion in Foster v North American Bus Industries, Inc. in which it reversed the trial court’s summary judgment in favor of the employer on a retaliatory discharge claim. The employer, NABI is a bus manufacturer in Anniston that has what it refers to as a "no fault, points based attendance and absenteeism policy". Under the policy, NABI assigns points to each absence or tardiness. Foster worked for NABI as a Harness Technician and alleged that she sustained an injury in July 2012. Foster went to the hospital and reported the alleged workplace injury and NABI told the representative at the hospital that Foster’s injury was not work-related. Foster was evaluated and treated at the hospital and given a work/school absence form excusing her from work. Foster missed some time from work and was subsequently terminated for violation of NABI’s absenteeism policy. Foster then filed an action for retaliatory discharge against NABI. NABI moved for summary judgment, which the trial court granted, and Foster appealed.

On appeal, the Supreme Court found that Foster had presented a prima facie case of retaliatory discharge, and that the burden of proof should have been shifted to NABI to present evidence that Foster’s employment was terminated for a legitimate reason. NABI argued that its absenteeism policy was followed in all instances, whether the employee had a work-related injury or not. NABI offered evidence that it had terminated 44 employees for violating the same policy and that it had not made any exceptions to this policy. However, the Supreme Court noted that there was evidence before the trial court that NABI had made an exception to the policy on prior occasions and that those exceptions, which dealt with the method of delivering a medical excuse note, created a genuine issue of material fact that precluded summary judgment. Specifically, the Supreme Court found that Foster introduced sufficient rebuttal evidence in support of her position that NABI’s stated reason for terminating her employment was pretextual.

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.

The Alabama Court of Civil Appeals recently released its opinion in Frederick Roosevelt Dunning, Jr. & Janice Dunning Sandifer v. Lula Mayhew, in which it determined Roosevelt and Lula were married at common law. Although the Alabama legislature abolished common law marriage in Alabama effective January 1, 2017, any common law marriage that existed prior to that date is still valid. The Court of Appeals reiterated that a common law marriage requires proof by clear and convincing evidence of capacity to marry; a present mutual agreement to permanently enter into a marital relationship to the exclusion of all other relationships; public recognition of the relationship as a marriage; a public assumption of the marital duties; and cohabitation. The Court of Appeals further stated that while there was conflicting evidence presented at trial concerning the second two elements, the trial court is tasked with making credibility determinations and resolving conflicting evidence and that the appellate courts may not disturb the trial court’s findings in that regard as long as they are supported by substantial evidence.

My Two Cents:

The issue of common law marriage comes up frequently in workers’ compensation death benefits cases. Interestingly, as this case points out, a party must prove a common law marriage by clear and convincing evidence, whereas the standard to recover workers’ compensation benefits is generally a preponderance of the evidence. Nevertheless, an appellate court will not re-weigh the evidence on appeal, so the trial court’s findings of fact are generally final. The trial judge is in the unique position of being able to assess the credibility of the witnesses, and the appeals courts cannot substitute their own judgment in that regard.

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.

On August 1, 2016, a new federal law, The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, went into effect which required all federal agencies to adjust their monetary penalties to account for inflation. One such agency, the Occupational Health & Safety Administration (OSHA), increased its maximum penalty for "serious", "other than serious", and posting requirements violations to $12,675 per violation, and its maximum penalty for willful or repeated violations to $126,749 per violation. For the last year, all citations issued by OSHA have been subject to the "new" higher penalties. However, it seems that OSHA may have put the cart ahead of the horse, and as a result is charging violators more than the law actually allows.

OSHA, like all federal agencies, gets its rule making and enforcement authority from its authorizing statute, and that authorizing statute generally supercedes subsequent laws like The Federal Penalties Inflation Adjustment Act Improvements Act. The problem for OSHA is that the Occupational Safety & Health Act of 1970 (OSH Act) has not been amended to allow for the higher penalties. Under the OSH Act, OSHA cannot issue penalties higher than the levels set way back in 1990, which are up to $7,000 for "serious" violations, and up to $70,000 for repeat/willful violations.

My Two Cents:

The discrepancy between the statutory caps under the OSH Act and the current fine levels creates a situation that is ripe for litigation. Employers are likely on the winning side of that battle, especially under the current, more "business friendly" federal administration. It is probably only a matter of time before a court strikes down the "new" penalties as unauthorized. When that happens, OSHA may very well have to start issuing refunds.

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 matters. If you have questions about this article or OSHA citations in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.