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.
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.
New Jersey lawyer and nationally recognized workers’ compensation guru, John Geaney recently posted a COVID-19 Q&A on his award winning Blog site. The questions are certainly relevant nationally and so the following are Alabama specific answers.
Question 1: What happens when an employer sends its employees home for several weeks out of a general concern for safety and for prevention of contagion? Must the employer pay workers’ compensation benefits?
Answer: No, but the employee will likely be entitled to unemployment benefits.
Question 2: What if an employer advises an employee that he or she must be quarantined because the employee may have been exposed to someone at work who has the coronavirus? Must the employer pay workers’ compensation benefits?
Answer: No, because the mere possibility of an injury or occupational disease is insufficient to trigger coverage under the Act.
Question 3: What if the government shuts down a company for a 30-day period and the company has to send everyone home for that period of time with no work available from home. Does the employer owe workers’ compensation benefits?
Answer: No, but the employee will likely be entitled to unemployment benefits.
Question 4: What if an employee becomes worried that he has symptoms similar to that of the coronavirus and refuses to come to work? He quarantines himself for 14 days out of concern for his safety and that of fellow employees. No one at work has the virus and it is unclear where the employee may have been exposed, if there was exposure at all. Does this generate an obligation to pay workers’ compensation?
Answer: No, because the mere possibility of an injury or occupational disease is insufficient to trigger coverage under the Act.
Question 5: Along the lines above, suppose the employer finds out that the HR Director’s son just returned from Italy, where the number of deaths from coronavirus have now topped those in China. The employer advises the HR Director that she must quarantine for 14 days. Are workers’ compensation benefits due?
Answer: No, because the mere possibility of an injury or occupational disease is insufficient to trigger coverage under the Act.
Question 6: What if two police officers alternate use of a patrol vehicle. On Monday, Officer Chris is driving the vehicle alone and begins to experience symptoms of coronavirus later that evening, unknown to Officer Aiello, who then drives the vehicle on Tuesday alone. Later in the evening Officer Aiello finds out that Officer Chris just entered quarantine for suspected coronavirus. Officer Aiello sees her primary care physician who recommends a quarantine period for her. Officer Aiello files a first report of injury based on potential exposure to the virus in the patrol vehicle when she drove it. Is Officer Aiello entitled to payment of temporary disability benefits?
Answer: No, because the mere possibility of an injury or occupational disease is insufficient to trigger coverage under the Act. Further, in Alabama, an occupational disease is defined as “a disease arising out of and in the course of employment… which is due to hazards in excess of those ordinarily incident to employment in general and is peculiar to the occupation in which the employee is engaged but without regard to negligence or fault, if any, of the employer.” Therefore, for COVID-19 to be considered compensable in Alabama, the employee would have to be able to prove that contracting it was due to hazards in excess of those ordinarily incident to employment in general and that it is peculiar to the employee’s occupation. It will be difficult for an employee to show that contracting the virus resulted from a risk of employment. The reason being that, like the flu, you face the same sort of risk when you go home or when you walk about in public. Some state laws have presumptions for health care workers or first responders. Alabama is not one of those states. Without a statutory presumption in place, it would be nearly impossible to prove causation.
Question 7: Suppose a hospital floor nurse has been working for the past month with patients who have been tested for possible coronavirus. So far all the tests have been negative. The nurse is diagnosed with coronavirus herself, becomes seriously ill and is hospitalized. She files for workers’ compensation benefits for her lost time and medical bills. Is she entitled to workers’ compensation benefits?
Answer: Probably not. See answer to #6.
Question 8: Given that tens of thousands of employees are now working from home in Alabama due to state and federal guidelines, what if an employee gets injured at home and files a workers’ compensation claim?
Answer: The Alabama Workers’ Compensation Act does not specifically address telecommuter/home based workers and there are not currently any high court opinions in Alabama addressing the issue. Courts in other states have distinguished telecommuters from individuals who may just happen to be performing work at home on a given day. In those states, once it was established that the employee and employer entered into a telecommuting arrangement, the hazards of the home were considered to be work place hazards. Written telecommuting agreements that dictate hours of employment, areas of the house that are considered work space, and rules concerning prohibited activity are recommended to help employers and employees know what is and is not considered work activity.
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 Alabama Department of Labor Workers’ Compensation Division seminars scheduled for April 9th in Orange Beach and April 23rd in Birmingham are cancelled. Per Director, Steve Garrett, they are actively working on securing alternate dates. Stay tuned. We will post the new dates as soon as they are available.
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 18, 2020, Alabama Supreme Court Chief Justice, Tom Parker, issued an Order setting forth temporary rules regarding workers’ compensation settlements. Per the Order, the following rules will be in effect through April 16, 2020:
The above referenced Order was issued in the wake of a March 13, 2020 Order that suspended all in-person court proceedings through April 16, 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.