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.
It's almost time to register for the 36th Annual AWCO Spring Conference to be held May 4-5, 2017 at the Hyatt Wynfrey Hotel! Online registration will open March 1, 2017 on the AWCO web site atwww.awcotoday.com. You can register and pay online, register as a member with no fee or print the paper registration to be mailed in. Online registration will remain open through April 30, 2017. On site registration will be available, but pre-registration is strongly encouraged to avoid long lines.
The conference is FREE to all paid members. The cost of an annual membership is $75 whereas regular conference registration is $100. This amounts to a no brainer. Membership does not automatically register you for conference attendance. Please note, members MUST register to attend the conference. Registration can be completed online with no associated cost. Membership is open on the web site through 2/28/17 for those who have not yet completed the application. Memberships received after 2/28/17 are not eligible for free conference registration.
Thursday evening features a Casino night including a silent auction for the Cystic Fibrosis Foundation. We hope to see you there!
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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.
Over the years, an Alabama pain management doctor built a reputation for prescribing large quantities of opioid medications out of his Huntsville office, and his patients included many workers’ compensation claimants. In 2012, he prescribed over 12.3 million pills, many of which authorities say should have never been prescribed. Additionally, it was determined that he defrauded Medicare and private insurers out of at least $9.5 million.
In October 2016, the doctor pleaded guilty to illegally writing prescriptions, and to health care fraud. Prior to his arrest, he was once considered the nation’s most prolific Medicare prescriber of opioid painkillers. Now, he will spend the next 15 years in federal prison and has to pay $6.7 million in restitution to Medicare and Blue Cross Blue Shield of Alabama.
It’s no secret that “pill mills” have long been a problem in Alabama. A 2013 study by the Centers for Disease Control and Prevention found that Alabama was among the top 20 states nationally in the number of prescription drug overdoses. In response to that report, the Alabama Legislature passed The Alabama Pain Management Act and made changes to the laws that pertain to the Alabama Department of Public Health’s Prescription Drug Monitoring Program.
My Two Cents
The Prescription Drug Monitoring Program includes a database where doctors can determine what prescription drugs a patient has had filled by other doctors. It can be a very useful tool for doctors to identify patients that are “doctor shopping” to obtain prescription painkillers. Only doctors can access the database, and they cannot share the information that they obtain. However, it is a good idea for claims professionals to insist that the physicians they select to treat claimants review the database, at least on suspect claims.
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 atcdrummond@fishnelson.com or (205) 332-3414.
On September 23, 2016, the Alabama Court of Civil Appeals released its opinion inAugmentation, Inc. v. Harris. Debra Harris alleged injuries to her neck, back, and left shoulder while working for Augmentation on April 3, 2011. Harris’ authorized treating physician, Dr. James Bailey, diagnosed Harris with "recurrent cervical and lumbar strains", and prescribed conservative treatment that consisted primarily of injections and pain medications. Augmentation disputed that the "recurrent strains" were related to Harris’ alleged accident, and Harris filed a Complaint for workers’ compensation benefits in the Circuit Court of Tuscaloosa County. At the outset of the case, Augmentation filed a motion seeking an independent medical examination, and that motion was denied. After the depositions of Harris and Dr. Bailey, the parties agreed to a settlement of Harris’ indemnity and vocational benefits. The settlement agreement presented to the trial court clearly stated that compensability of Harris’ alleged injuries was disputed, and that the issue of "future medical benefits shall remain open, subject to all medical necessity, causation, and pre-authorization requirements as provided by The Alabama Workers’ Compensation Act." The trial court approved the settlement in April 2014.
Subsequent to the settlement, in 2015, Dr. Bailey prescribed a lumbar epidural steroid injection and prescription pain medications to treat Harris’ lumbar strain. The workers’ compensation adjuster wrote to Dr. Bailey, asking him to address whether the need for said treatment was related to the April 2011 injury or some other cause, and if so, what the basis for his opinion was. According to Augmentation, Dr. Bailey did not respond to the letter. The adjuster then contacted two other orthopedic specialists, and asked for their respective opinions on the matter. Both of those physicians penned reports in which they stated that the cervical and lumbar strains Harris sustained in the April 2011 accident most certainly would have resolved after nearly four years, and the need for further treatment would not be related to the accident. Based on this information and the fact that Dr. Bailey had not provided any information to the contrary, the treatment prescribed by Dr. Bailey was not approved. Harris then filed a petition asking the Court to hold Augmentation in contempt of the April 2014 Order approving the settlement. Augmentation responded to Harris’ petition, asserting that the April 2014 Order did not require it to provide the treatment prescribed by Dr. Bailey unless Harris could prove that the treatment was related to the 2011 accident. Citing § 25-5-88 of The Alabama Workers’ Compensation Act, Augmentation pointed out that Harris was entitled to have a trial on the issue to resolve the dispute, and that Harris would have the burden of proof. Augmentation also argued that even if it should have approved the treatment recommended by Dr. Bailey, it’s failure to do so was not willful and contumacious based on the language of the settlement agreement. The court set the matter for hearing, and Augmentation sought leave of court to obtain the deposition testimony of the two orthopedic specialists who provided written opinions prior to the hearing on Harris’ contempt petition, which the trial court denied.
The trial court held a hearing, and found Augmentation in contempt "for its willful, continuing failure or refusal to comply with the Court’s Settlement Order dated April 3, 2014, wherein the Court ordered that future medical benefits shall remain open." The trial court further stated that Augmentation failed to present evidence that the treatment prescribed by Dr. Bailey was not reasonably necessary, and that it failed to present good and valid reasons for its refusal to authorize that treatment. The court ordered Augmentation to pay Harris’ attorney’s fees, and ordered Augmentation to approve all treatment prescribed by Dr. Bailey. Augmentation appealed, arguing that it was not in contempt because the settlement order put limitations on its liability for future medical treatment; that any violation of the settlement order was not willful and contumacious; and that the trial court erred by failing to allow meaningful discovery or conduct a trial on the merits of the case.
The Court of Appeals found that while the settlement order only required Augmentation’s to provide future medical care subject to medical necessity, causation, and pre-authorization requirements, the trial court had concluded that the treatment prescribed by Dr. Bailey satisfied those requirements. The Court of Appeals further held that it was Augmentation’s duty to contest its liability (prior to Harris filing her contempt petition), citingTotal Fire Prot., Inc. v. Jean, 160 So.3d 795, 799 (Ala.Civ.App. 2014). The Court noted that Augmentation did not seek a judicial determination in accordance with § 25-5-88 prior to Harris filing her petition, and it did not resort to the utilization review process outlined in § 25-5-293(g). As a result, the Court of Appeals held that the trial court did not abuse its discretion in finding that Augmentation’s failure to approve the treatment "without just cause" was willful and contumacious.
The Court of Appeals affirmed the trial court’s ruling, and Augmentation petitioned the Supreme Court of Alabama for a Writ of Certiorari. On December 9, 2016, the Supreme Court denied the Petition for Writ, without a written opinion.
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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 an opinion dealing with venue statutes and their applicability to claims sought under the Alabama Worker’s Compensation Act. In the case ofEx parte Associated General Contractors Workers' Compensation Self-Insurers Fund, Alabama Branch, and Good Hope Contracting, Inc. (In re:Associated General Contractors Workers' Compensation Self-Insurers Fund, Alabama Branch v. Lynn Harding), the Court held that the §6-3-7, Ala.Code 1975, was the proper statute to govern venue for worker’s compensation lawsuits, regardless of the initial filer.
Associated General Contractors Workers' Compensation Self-Insurers Fund, Alabama Branch ("AGC") filed a lawsuit against Lynn Harding ("Harding"), seeking a declaratory judgment under the Alabama Worker’s Compensation Act.
Harding filed a Motion to Dismiss for Improper Venue, or in the Alternative, Motion to Transfer Venue, relying on the venue statute governing actions filed against an individual, §6-3-2, Ala.Code 1975. Plaintiffs responded to Harding’s motion, relying on the Alabama Workers’ Compensation Act and §6-3-7, Ala.Code 1975, the venue statute that governs where a corporation can be sued. The trial court granted Harding’s motion, and ordered that the case be transferred. Plaintiffs filed a Petition for Writ of Mandamus seeking relief from the Order.
The Alabama Court of Civil Appeals granted the petition. The rationale being that per the Worker’s Compensation Act, venue is proper if filed where a tort action would be properly filed. Case law provides that venue is proper where an employee’s grievance against his employer would be heard. Ex parte Adams. The proper venue statute to govern where an individual can sue his employer is §6-3-7, Ala.Code 1975.
In sum, regardless of who files the initial Complaint in an Alabama Worker’s Compensation lawsuit, venue is proper where an employee can properly maintain an action against the employer.
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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.
Two Microsoft employees have sued their employer alleging that they suffer from post-traumatic stress disorder because their job required them to watch horrific internet videos portraying brutality, murder, beastiality, and even child pornography. Both men filed lawsuits in King County, Washington, seeking damages for negligence, disability discrimination, and violations of the Consumer Protection Act. The men allege that Microsoft involuntarily transferred them to its online safety program, where they reviewed online videos to identify and report illegal content. Their lawsuits are currently ongoing at this time, and it remains to be seen how they will be decided under Washington law. However, under Alabama law, it is clear that the employees would have no remedy upon which to base an award of damages for their post-traumatic stress.
First, §§25-5-53 and 25-5-54 of the Alabama Workers' Compensation Act provide that workers' compensation benefits are the employee's sole legal remedy for injuries occurring in and arising out of the employment. Additionally, mental injuries such as post-traumatic stress disorder are only compensable if accompanied by physical injury under Alabama law. Therefore, as horrible as the their jobs must have been, they would not have any grounds upon which to recover damages if they worked in Alabama.
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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.
Effective January 1, 2017, the standard mileage reimbursement rate for Alabama was decreased to 53.5 cents per mile.
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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.
The Supreme Court recently released its decision in Ex Parte Lincare, Inc., which involved an employee who was allegedly assaulted by her supervisor on the employer’s premises immediately after she was terminated. The employee sued her employer for workers’ compensation benefits, and sued both her employer and her supervisor for assault, battery, and the tort of outrage. The employer and supervisor filed motions to dismiss and motions to sever, arguing that the workers’ compensation claim should be severed from the employee’s tort claims, and that the tort claims were due to be dismissed based on the exclusivity provisions of §§ 25-5-52 and 25-5-53 of The Alabama Workers’ Compensation Act. , The supervisor also filed a motion to strike the plaintiff’s jury demand, based on an agreement in the employee’s job application that stated such a waiver was a condition of hire. The trial court issued an order granting the severance, but denying the motions to dismiss and the motion to strike. Both defendants then filed a petition for writ of mandamus with the Supreme Court.
The Supreme Court held that the employee’s alleged assault occurred in and arose out of her employment because it was precipitated by her resignation while she was on her employer’s premises and concerned her possession of certain documents owned by her employer. The Court also noted that the employee’s alleged injuries were not expected or intended by her employer, so they fell within the definition of a "accident" within the meaning of the Act. The Court noted that "even following an employee’s termination, the employee must be given a reasonable time to leave the premises before the employer-employee relationship is considered severed and the workers’ compensation act is rendered inapplicable". As such, the Supreme Court granted the employer’s petition for writ of mandamus, holding that the assault and battery claims were barred by the exclusivity provisions of the Act. However, the Supreme Court denied the supervisor’s petition for writ mandamus, because Alabama law provides for mandamus review of the denial of a motion to dismiss only in cases where the motion is based in immunity (as was the case for the employer, but not the supervisor). Finally, the Supreme Court denied the supervisor’s motion to strike the plaintiff’s jury demand, because the supervisor was not a party to the employment agreement.
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.
OSHA recently issued a proclamation against the blanket drug testing of all employees that report work accidents. While there is no specific law against it, OSHA has advised that it will consider such practice retaliatory in nature because it could discourage an employee from reporting a legitimate accident or injury.
In Alabama, the Workers’ Compensation Code provides the employer with an affirmative impairment defense to indemnity benefits under Section 25-5-51. A positive DOT compliant drug test results in an irrebuttable presumption of impairment. Even with this presumption in place, the employer still has the burden of proving that impairment caused or contributed to the accident. Per OSHA, employers are now called upon to determine whether there is any reasonable connection between drugs and/or alcohol and the accident/injury prior to administering the test. If drug or alcohol impairment could have been a contributor to the accident, then requiring the test will not be considered discriminatory. If there is no reasonable connection, then employers risk a retaliation claim by OSHA in federal court.
If an employer opts in to the Drug Free Workplace Program offered by the Alabama Department of Labor, then it will likely work as a defense to any claim of retaliation when all employees with reported claims are tested.
OSHA will begin its enforcement of this new policy on December 1, 2016. After that, employers who have not opted in to the Drug Free Workplace Program should plan on changing post-accident drug testing policies from “shall be tested” to “may be tested” and consider the relationship between any possible impairment and the accident/injury prior to testing.
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 recent weeks Zero Dollar Allocation MSAs came into question. Initially it was thought that on any claim, even fully denied claims, where approval of a zero dollar MSA was sought, documentation would have to be provided to the Centers for Medicare and Medicaid Services (CMS) to support the zero dollar MSA. This would include submitting 1) Final settlement documents or a statement that none exist, 2) All court rulings including but not limited to rulings on compensability or 3) if no court ruling exists on compensability, treatment records showing no further treatment is needed for the work injury or a statement from the doctor concerning future treatment.
However, additional information surfaced later that indicated the above stricter guidelines would not apply to settlements of completely denied or disputed claims.
As for zero dollar allocation MSAs on accepted claims, it is our understanding that the above guidelines will likely be put in place. In these cases to secure CMS approval, you will need to get a court order that indicates the claim is not compensable or treatment records showing no further treatment for the work injury will be required.
With all that said, we will wait to see if CMS issues any new guidelines via policy memo.
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.
On September 9, 2016, the Alabama Court of Appeals released its decision in Kennamer Bros., Inc. v. Stewart, in which it affirmed the Circuit Court of Marshall County determination that Stewart’s shoulder injury was compensable. In that case, the truck driver-employee was involved in a rollover accident and sustained multiple injuries. However, the primary issue was whether Stewart’s right shoulder injury was compensable. Stewart had been airlifted to a hospital after the accident, where he was treated for head injuries. He underwent several procedures to remove shards of glass from his scalp and was prescribed antibiotic and pain medications. After he came off of pain medications for his head injury, he then noticed pain his right shoulder and was later diagnosed with a rotator cuff tear. However, Stewart did not report his alleged right shoulder pain to his treating physician until nearly five months after the alleged accident. The physician testified that while it would be very unusual for a person with a rotator cuff tear to not experience immediate pain, it was possible that pain from more severely injured parts of his body and/or pain medications administered for others injuries could mask the symptoms of a rotator cuff tear. The physician further testified that Stewart’s symptoms were consistent with his self-reported medical history and were consistent with a rotator cuff injury. Kennamer Brothers failed to present evidence of any subsequent accident or injury that would explain Stewart’s symptoms.
Stewart was ultimately released to return to work in February 2013, but was unable to drive for Kennamer Brothers because the employer could not secure insurance coverage for him due to the fact that he had been involved in several automobile crashes. In January 2014, Stewart went to work for a different employer.
Based on the evidence, the trial court found that Stewart’s right shoulder injury was compensable, and awarded TTD benefits through January 2014. Kennamer Brothers appealed. The Alabama Court of Appeals noted that the employee’s burden of proof is to produce substantial evidence tending to show that the alleged accident occurred and that it caused or was a contributing cause of the injury. The Court of Appeals held that Stewart met this burden of proof, and noted that symptoms that first appear a few hours, days, or even months after a traumatic event may nonetheless properly be deemed causally related if no intervening event has occurred and no alternative medical explanation is provided for the presence of symptoms.
The Court of Appeals acknowledged that TTD benefits may not be owed if the injured employee is able to work and earn his pre-injury wages, but he is prevented from working for reasons unrelated to his workplace injury. However, the Court of Appeals found that the trial court had a sufficient basis on which to determine that the reason for the termination of Stewart’s employment (i.e. his uninsurability) was related to the injury he sustained. The Court noted that had Stewart not been involved in the crash, he probably would not have been an impossibly high insurance risk. Based on this, the Court of Appeals stated it could not conclude that Stewart failed to show a causal link between his injury and his diminished earning capacity, and affirmed the portion of the order awarding TTD benefits through January 2014.
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.