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

Effective January 1, 2021, the mileage reimbursement rate for Alabama will be 56.0 cents per mile, a 1.5 cent decrease from 2020.


On December 21, 2020 the Alabama Supreme Court issued Administrative Order No. 9 which extended its previous orders concerning workers’ compensation and taking witness testimony remotely during the pandemic.  This means that the following rules will be in effect through April 30, 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 a 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.

 

In addition to the above, the rules that provide for remotely swearing in and taking witness testimony are also extended.


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.

On December 11, 2020, the Alabama Supreme Court rendered a decision finding that collateral estoppel does not violate the constitutional right to a trial by jury.  This finding was based on a review of a Motion for Summary Judgment Order granted in favor of the employer by the Circuit Court of Shelby County, Alabama, in a retaliatory discharge case.

 

In that case, the employee was terminated for misconduct according to the employer.  The termination occurred after a worker’s compensation claim had been filed.  The employee ultimately filed for unemployment, and the city defended the unemployment claim, asserting that he was not due unemployment because he was terminated for misconduct.  The record clearly showed that the employee and employer proceeded to a hearing with both parties presenting evidence and securing testimony of witnesses before an administrative officer.  The initial ruling by the unemployment board was that the employee was terminated for misconduct.  The employee appealed this decision on multiple levels, but he ultimately chose not to move forward and appeal it all the way to the Circuit Court.  The employee instead amended his complaint in his workers’ compensation case to add a retaliatory discharge claim shortly before the final decision was issued by the unemployment board.  The employer filed a Motion for Summary Judgment which was granted but then set aside due to service issues.  The Summary Judgment was reinstated and ultimately denied by the court, which found that it was not ripe for a decision at that time.  Discovery in that case went forward, and the employer ultimately renewed its Motion for Summary Judgment. The employee filed its opposition arguing that he did not have adequate opportunity to litigate the issue and that applying collateral estoppel would violate his constitutional right to a trial by jury. 

 

The Supreme Court held that, for collateral estoppel to apply in these types of cases, the same parties must be identified in both actions. In addition, the parties must have adequate opportunity to litigate the issues upon which collateral estoppel is being based. The Supreme Court ultimately determined that the employee had adequate opportunity to argue that he was wrongfully terminated in his unemployment case.  This included the chance to submit evidence as well as call witnesses to testify.  Even though the employee did not take advantage of his opportunity to litigate the issue, collateral estoppel could still be applied.  Therefore, the decision at the unemployment hearing that he was terminated for misconduct prevented the employee from now arguing he was terminated solely because he filed a workers’ compensation claim.

The Supreme Court then addressed the employee’s argument that applying collateral estoppel in cases where the prior decision was administrative only and not decided by a jury was a violation of his constitutional rights.  The Alabama Supreme Court stated that while it had not addressed the issue, multiple other courts had, including the United States Supreme Court.  The Alabama Supreme Court cited cases which held that courts have not hesitated to apply res judicata when an administrative agency was acting in a judicial capacity to resolve disputed issues of fact involving the same parties. B&B Hardware, Inc. v. Hargis Industries, Inc., 575 U.S. 138, 150, (2015) in which the United States Supreme Court stated, “The Court has already held that the right to a jury trial does not negate the issue-preclusive effect of a judgment, even if the judgment was entered by juryless tribunal”.  Id. The Alabama Supreme Court stated that the United States Supreme Court held that the 7th Amendment does not prevent competent tribunals from issuing judgments that have a preclusive effect.  Therefore, the Alabama Supreme Court held that if the administrative process in question had the characteristic of adjudication, there would be no reason why the administrative proceeding should not have the same preclusive effect that a court decision would have.  The Court noted that the reasoning behind this was that the administrative proceeding that the employee was involved in had the essential elements of adjudication which included adequate notice to persons who were bound by the adjudication and the right on the behalf of the party to present evidence and legal arguments to support their contentions and/or to rebut evidence and argument made by the opposing party.  As a result, the Alabama Supreme Court ultimately determined that collateral estoppel would still apply and would not violate the constitutional right to trial by jury in cases where an employer seeks to have the decision in an unemployment hearing preclude a retaliatory discharge claim under the Workers’ Compensation Act. 

 

MY TWO CENTS

 

As we have noted in prior blog posts, decisions in unemployment hearings can be beneficial in a workers’ compensation case that involves a retaliatory discharge claim.  For this reason, we recommend to all employers that they secure legal representation and fully participate in the unemployment hearing to secure a favorable decision.

 

ABOUT THE AUTHOR

 

The article was written by Joshua G. Holden (with contributions from all attorneys with Fish, Nelson & Holden, LLC), 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 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

Membership in the AWCO offers several professional and social opportunities annually to interact with other workers' compensation professionals. Usually, the highlight of the year is the annual AWCO Spring Conference where its members come together for two days of education, fun, and fellowship.  This year, the pandemic forced the conference to be postponed to November, but it was held and held in person (and virtually).  Hopefully, things will improve, and the conference can, again, be held in person in 2021.  Membership is only $75 if paid prior to February 28, 2021.  After that, the annual fee goes up to $150.  Once you are an AWCO member, the Annual Conference is free.  You pay nothing, nada, zero, zilch to register and attend. You can complete your membership registration at www.awcotoday.com/membership.  We hope to see you at the conference and in person in 2021!

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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.

We make no bones about it; this is one of the stranger stories to be posted on the Alabama Workers’ Compensation Blawg.  It wasrecently reported by WorkersCompensation.com that one of the world’s leading hip and knee experts began the act of keeping his patient’s bones in the 90’s.  Since that time, he has held on to bones from close to 5,224 surgeries.  The Birmingham doctor, known to have a list of famous athletes as his patients, is known as the “Father of Modern Hip Resurfacing” and invented a widely used hip resurfacing technique and developed a procedure known as the Birmingham Knee Replacement.

 

If you live in or near Birmingham and had hip or knee surgery in the last 25 years, you are probably wondering if it was by this famous doctor and if he pilfered one of your bones.  The odds are against it, unless your surgery took place across the pond.  You see, the doctor’s name is Dr. Derek McMinn and he was suspended from Edgbaston Hospital in Birmingham, United Kingdom.   

 

If Dr. McMinn did perform surgery on you and you want your bone back, it may take awhile for the hospital to process your request.  They are apparently operating with a skeleton crew.

 

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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.

In a year that have given us a global pandemic, violent demonstrations and protests, wildfires, locust swarms, murder hornets, and devastating hurricanes, it is appropriate that the Alabama Workers’ Compensation Blawg reaches its 13th year.  Never, in the 100 years since it went into effect, has the language of the Alabama Workers’ Compensation Act been so analyzed and dissected.  Never before has our system of workers’ compensation been so affected by both executive orders from the Governor and special orders from the Alabama Supreme Court.  We have endeavored to keep our readers apprised of all developments as they occur and will continue to do so.  We would like to take this opportunity to thank you all for making this Blawg your go to resource for Alabama workers’ compensation news.  Wishing everyone a safe and healthy remainder of 2020!  Hopefully, there will be more positive things to report on our Blawg’s 14th birthday.


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.

On August 14, 2020 the Alabama Supreme Court issued Administrative Order No. 8 which extended its previous orders concerning workers’ compensation and taking witness testimony remotely during the pandemic.  This means that the following rules will be in effect through December 31, 2020:

 

  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 a 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.

 

In addition to the above, the rules that provide for remotely swearing in and taking witness testimony are also extended through the end of the year.


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 the COVID-19 pandemic rages on, governors in various states have issued executive orders which purport to create a presumption that COVID-19 is a compensable occupational illness for certain employees.  In most states where this has occurred, such presumption is limited to healthcare workers, first responders, and some employees in the public transportation sector.  However, Connecticut Governor Ned Lamont just issued an executive order that creates a rebuttable presumption that COVID-19 is a compensable occupational disease for any employee who  worked outside the home at the direction of the employer and was diagnosed with COVID-19 and missed work between March 10 and May 20.   Connecticut’s order is unique not only because it covers a much broader spectrum of workers, but also because it is retroactive in nature.  This of course begs a few questions: Is such an order valid?  If so, could Governor Ivey do the same thing in Alabama?


Alabama is one of the only states where disputes between employers and employees over workers’ compensation claims are decided by the courts, rather than an administrative body.  Over the years, many states have taken workers’ compensation cases out of the courts in favor of administrative proceedings before a board or administrative law judge.  Generally, the administrative body that is responsible for the administration of workers’ compensation in those states is part of the executive branch of government.  The state legislature actually delegates authority to the executive branch to create an administrative agency responsible for administering workers’ compensation benefits, and those agencies are allowed to promulgate their own rules and regulations.  Governors are the head of the executive branch, and therefore have the power (either express or implied) to direct the administrative agencies under their control to act in a certain way.  Therefore, in states where disputes between employers and employees are decided by an administrative body, rather than the courts, governors have much more authority to levy what may or may not be considered a compensable illness.  Assuming Connecticut is such a state, Governor Lamont’s order may be a permissible exercise of authority under Connecticut law.  The biggest question is whether the retroactive nature of the order violates due process.


In Alabama, an executive order such as the one issued in Connecticut would not be valid.  The Alabama Workers’ Compensation Act was passed by the Alabama legislature, and was codified in the Alabama Code.  A key part of the Act vests jurisdiction for determining disputes between employers and employees regarding workers’ compensation benefits solely in the circuit courts.  In other words, Alabama has a balanced form of government, where laws are passed by the legislative branch, interpreted by the judicial branch, and the executive branch’s role is one of enforcement only.  The governor has no authority to pass laws; nor does she have the authority to tell the courts how to interpret laws that the legislature has passed.  Therefore, it is not likely that Governor Ivey will try to implement an executive order similar to that of Governor Lamont. 


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 Tuesday, July 21, 2020 at 10:00 am (CST) a panel of experienced workers’ compensation defense attorneys representing different states will present a timely and comprehensive webinar entitled: Pandemonium in the Time of the Pandemic.  This is the eighth in a series of free webinars sponsored by WorkersCompensation.com in collaboration with the National Workers' Compensation Defense Network at the Center for Education Excellence.

 

The webinars are free. All you have to do is register.

 

REGISTER HERE FOR THE WEBINAR


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 of July 1, 2020, the maximum workers’ compensation payable is increased to $920.00 per week and the minimum is increased to $253.00 per week.  The memorandum regarding the new minimum and maximum rates issued by the Director of the Alabama Department of Labor Workers’ Compensation Division, Steve Garrett, can be accessed here