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.
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.
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.
On Friday, June 26, 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: Navigating Post-Injury Wage Earning Capacity in a COVID World. This is the seventh 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.
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 Monday, June 1, 2020 at 11:00 am (CST) a panel of experienced workers’ compensation defense attorneys representing different regions of the United States will present a timely and comprehensive webinar entitled:Establishing a "New Normal"During COVID-19. This is the forth 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.
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 April 24, 2020, the presiding judge of the 10th Judicial Circuit of Alabama, Jefferson County, entered an Administrative Order concerning the holding of non-jury court proceedings by video or audio conference so long as the Alabama Supreme Court Order remains in place restricting in person hearing. The Supreme Court Order, which was to expire April 30th, was extended to May 15th.
This Administrative Order included that judges shall have discretion to hold virtual court hearings in all non-jury proceedings which includes civil non-jury trials, such as workers’ compensation cases. The Order states that the hearing shall be held via Zoom software unless the specific judge authorizes the use of a different software. It is the responsibility of any party seeking to have a witness testify to make that witness available via virtual hearing. This can include the witness being available from their home or going to the attorney’s office. The Order also states that the parties are to adhere to the social distancing requirements. The Order gives any party the right to object to a virtual hearing at which time the court will review and make a determination. The Order also provides methods for exhibits to be introduced as well as authenticated.
MY TWO CENTS
Obviously, there are some benefits to moving forward and allowing cases to proceed to trial but there are some issues that may be prejudicial. With a virtual hearing there is no way for any party and/or the court to know if there is anyone else in the room with a witness. While this would obviously be unethical and sanctions could be issued, someone could easily be in the same room as the witness coaching and/or assisting with responses. Further, a an effective line of questioning could be stopped by ending the transmission and ineffective technology could be blamed.
Another aspect that is lost in a virtual trial would be the court’s ability to observe body language. While the hearing is virtual the ability to view someone via camera on a computer is a lot more obstructed than viewing someone live in a courtroom. In addition some software, including Zoom, only allows one person to talk at a time. This could create a problem if an individual was talking and opposing counsel or someone else involved in the hearing sought to make an objection. While we believe the objection would ultimately be heard it may be too late because the question was already asked and/or answered.
In regards to witness availability, this could create some difficulty because a witness may not have the capabilities to participate in a virtual hearing but at the same time may not be willing to go to the attorney’s office. The Order makes it the responsibility of the parties to have a witness available and this could create prejudice in a situation where a witness is needed to testify but that witness cannot be present via their own technology at home nor can they go to the attorney’s office to testify. Also, while the Order does indicate that it would assist with pro-se or non-represented parties in being able to secure and/or find somewhere to have the technology to proceed it could create issues for non-represented litigants in the event that they do not have the capabilities themselves to participate in a virtual hearing and are unwilling, or not comfortable, going to a public place or some other location to do so. The Order does give the parties the right to object to a virtual trial but it is at the Court’s discretion to grant the objection.
Finally, the Order specifically addresses how exhibits are to be handled. However, it seems that questioning and/or cross examining a witness using rebuttal evidence could be difficult in a situation where it was unexpected that you were need it and it was only admissible as rebuttal evidence. Presenting that evidence to the witness and questioning them on it could create difficulty since it would not likely have already been pre-admitted and/or presented to the court.
About the Author
The 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 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.
On April 30, 2020, Alabama Supreme Court Chief Justice, Tom Parker, issued an Order which extended all previously issued administrative orders related to COVID-19. As a result, the following rules will remain in place through May 15, 2020:
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 Monday, April 27, 2020 at 10:00 am (CST) a panel of experienced workers’ compensation defense attorneys representing different regions of the United States will present a timely and comprehensive webinar entitled"The COVID-19 Ripple Effect: Economic and Medical Impact on the Payment of Temporary Disability Benefits" at the Center for Education Excellence. This is the second of a series of free webinars sponsored by WorkersCompensation.com in collaboration with the National Workers' Compensation Defense Network.
The webinars are free. All you have to do is register.
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 April 6, 2020 at 10:00am (CST) Minnesota attorney, Mark Kleinschmidt, will present a timely and comprehensive webinar entitled"COVID-19: FACTS and FEAR for a Workers' Compensation Claim" at the Center for Education Excellence. This is the first of a series of free webinars sponsored by WorkersCompensation.com in collaboration with the National Workers' Compensation Defense Network.
The webinars are free. All you have to do is register.
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 March 26, Governor Kay Ivey issued a proclamation that temporarily allows notaries who are licensed attorneys or operating under the supervision of a licensed attorney to notarize signatures through videoconferencing programs and confirm the signatures of witnesses who participate virtually through videoconferencing as if they were physically present at the signing. In addition, any person who witnesses a document through videoconferencing technology can now be considered an “in person” witness, provided that the presence and identity of the witness is validated by the notary at the time of signing using the same identification that is required under current law. The official date and time will be the date and time when the notary witnesses the signature via videoconference. Further, all documents must be returned to the notary for certification and execution. These new temporary rules will remain in effect for the duration of the public health emergency unless rescinded or extended by proclamation.
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.