State News : Alabama

Earlier today (2/28/20), the World Health Organization chief Tedros Adhanom Ghebreyesus told reporters that the risk of spread and impact of the coronavirus is now very high as a “global level”.  So how will this affect workers’ compensation in Alabama?  Most likely in a similar manner to how it will affect workers’ compensation in New Jersey.  The below article is re-published with the permission of nationally known New Jersey attorney and blogger, John Geaney.   It was originally published earlier today on Mr. Geaney's New Jersey Workers' Comp Blog (http://njworkerscompblog.com).  Alabama does not have the statutory presumptions for public safety workers that New Jersey does.  However, similar to New Jersey, for the coronavirus 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.

The Potential Impact of the Coronavirus on New Jersey Workers’ Compensation

Many readers of this blog have inquired recently about the potential impact of the novel coronavirus on workers’ compensation claims.  Should a surge of serious coronavirus illnesses occur among New Jersey workers, would such claims be considered compensable under the law?

The answer to this question depends on whether one is or is not a public safety worker. Most New Jersey workers would not meet the test of a public safety worker.  For non-public safety workers, the likelihood of successfully maintaining an occupational disease claim under N.J.S.A. 34:15-31 would be very low.  The reason is that a claimant must show that the medical condition, for instance pneumonia, is more likely than not produced by causes which are characteristic of or peculiar to one’s occupation in a material degree.  This test is hard to meet because it is next to impossible to identify the source of the virus.  Many people who do not even know they have Covid-19 and are not yet symptomatic may be infecting large numbers of individuals in all sorts of locations.  For an infected employee, it would be hard to know whether one was exposed to the virus at work, in a store or some other places of human contact.  It would almost always be pure speculation where the exposure occurred.

Public safety workers, on the other hand, will have a strong argument for compensability.  The legislative intent of the Twenty First Century First Responders Protection Act was to protect public safety workers.  That law became effective in New Jersey on July 8, 2019.  This landmark legislation observes that “public safety workers are required by necessity to take great personal risks of serious injury, illness and death in their duties to protect the people of New Jersey from the dangers of catastrophic emergencies, including, but in no way limited to, terrorist attacks and epidemics.”  Unfortunately, the coronavirus has the potential to reach epidemic levels in the USA just as the virus has in China and other nations.

N.J.S.A. 34:15-31.4 defines a public safety worker broadly to include not just fire and police officers, but also “a Community Emergency Response Team approved by the New Jersey Office of Emergency Management, or a correctional facility, or a basic or advanced medical technician of a first aid or rescue squad, or any other nurse, basic or advanced medical technician responding to a catastrophic incident and directly involved and in contact with the public during such an incident. . .”  There are likely to be thousands of public safety workers in New Jersey who will be part of state efforts to contain any potential rapid spread of this virus.

N.J.S.A. 34:15-31.5 provides a presumption of compensability in subsection a. if a public safety worker can demonstrate exposure at work to “the excretions, secretions, blood or other bodily fluids of one or more other individuals or is otherwise subjected to a potential exposure, by the other individual or individuals, including airborne exposure, to a serious communicable disease, or is otherwise determined to be infected with or at significant risk of contracting the serious communicable disease. . . “ Readers should focus on the language “or is otherwise subjected to a potential exposure” in the preceding sentence.  The language does not say definite or proven exposure but rather “potential” exposure.  Public safety workers, by the nature of their work, are highly likely to have such potential exposures to those who are infected with coronavirus.

These new provisions of New Jersey’s occupational disease law demonstrate that public safety workers who may contract coronavirus will have a strong case for compensability given the presumption provided for in the statute.  Having a presumption of compensability is powerful.  When there is presumption of compensability, the burden of proof shifts to the employer to show that the exposure is not work related.  Just as I said earlier that it is hard for a non-public safety worker to prove exposure, so too it would be very hard for an employer to prove that a public safety worker more likely than not was infected through non-work exposures.  The employer will have no idea when the disease was contracted, and it would be speculation to say that the exposure was not work related.  So the presumption in a public safety worker scenario will almost certainly lead to compensable awards.

The statute drives this point home:  “If it is ascertained that the public safety worker has contracted a serious communicable disease or related illness under the circumstances set forth in subsection a of this section, there shall be a presumption that any injury, disability, chronic or corollary illness or death of the public safety worker caused by, attributable to, or attendant to the disease is compensable under the provisions of R.S. 34:15-1 et seq.” 

The CDC has concluded that it is just a matter of time before the coronavirus is considered a pandemic and before it spikes in parts of the United States.  If the CDC is right, New Jersey public safety workers run a high risk of contracting the illness in the course of their employment.  While slightly more than 80% of coronavirus patients have had mild symptoms, the remaining percentage has had serious symptoms.  Sadly, a small percentage of deaths is related to the coronavirus.  It is true that the percentage of deaths from coronavirus may not be any higher than the percentage of deaths from the flu each year in the USA, but there is a difference: there is no current vaccine for this virus and it has proven thus far to be highly contagious.

Our guest blogger from New Jersey, John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers' Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers' compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e mail at jgeaney@capehart.com.

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 January 17, 2020, the Alabama Court of Civil Appeals released its opinion in the matter styledEx parte Kohler Company, Inc.  In Kohler, the Court considered a Petition for Writ of Mandamus filed by the employer as the result of a trial court order requiring it to authorize a referral to a doctor for a second opinion after the employee had previously exercised her right to select a doctor from a panel of four.  Specifically, the employee injured her left foot and was initially treated by two occupational medicine doctors.  On September 19, 2018, one of the authorized occupational medicine doctors authored a note which made a referral to an orthopedic specialist.  Just five days later on September 24, 2018, the employee called the claims adjuster and asked that she be provided a panel of four physicians.  It is undisputed that the employee was represented by counsel at this time.  A panel of four orthopedic surgeons was offered to the employee.  She ultimately selected an orthopedic surgeon from the panel and received treatment.  When the panel doctor could not offer a diagnosis, the employee asked for a second opinion and he agreed that a second opinion would be okay.  The employer did not authorize a referral for a second opinion.  The employee filed a motion to compel the referral which the trial court granted.  The employer’s efforts to vacate the order were unsuccessful and so it timely filed a Petition for Writ of Mandamus asking the Court of Appeals to direct the trial court to vacate the order.  The Court of Appeals ultimately denied the employer’s petition rationalizing that it was equitably unjust for the employer to successfully take the position that the employee burned her panel when the employer had not followed the recommendation of the authorized occupational medicine doctor.

My Two Cents

The employee requested a panel of four just 5 short days after the occupational medicine doctor put an orthopedic referral in his notes.  It is not clear when that referral was actually shared with the claims adjuster.  Even if the adjuster knew about the orthopedic referral at the time the employee requested the panel (and there is nothing in the opinion to suggest that she did), to suggest that the employer failed to follow the recommendation of the occupational medicine doctor by not making the referral within 5 days of the recommendation is a little unfair.  Although it seems pretty clear that the orthopedic referral at least became known to the adjuster after the request for a panel was made (panel was comprised of 4 orthopedic surgeons), that is of no consequence since, by that time, the request for a panel had already been made.  Further, it is the opinion of the Court that the employer failed to follow a recommendation (that it may or may not have known) of an authorized doctor within 5 days of the recommendation being made.  Even if you consider what transpired after the call, the employee was represented when she requested the panel of four.  She and her attorney both knew that she had just been seen by an occupational medicine doctor.  Yet they elected to request a panel without so much as even inquiring as to what the occupational medicine doctor had to say as the result of the last appointment.  The fact that the panel was comprised of orthopedic surgeons instead of occupational medicine doctors should have been a huge clue to her attorney that such a referral had been made. 

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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.

Membership in the AWCO offers a number of professional and social opportunities annually to interact with other workers' compensation professionals. The highlight of the year is the annual AWCO Spring Conference where its members come together for two days of education, fun, and fellowship. Membership is only $75 if paid prior to February 28, 2020.  After that, the annual fee goes up to $150.  Once you are an AWCO member, the Spring Conference is free.  You pay nothing, nada, zero, zilch to register and attend. Click HERE for an on line membership application.  This year, the Annual AWCO Spring Conference will be held May 14-15, 2020 at theHyatt Regency Birmingham formerly known as The Wynfrey Hotel!  We hope to see you there!

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.

Effective January 1, 2020, the Alabama Department of Labor, Workers’ Compensation Division, must receive a completed WC-4 Claim Summary Form for all Alabama Workers’ Compensation settlements regardless of whether the settlement goes before a Circuit Court Judge or an ADOL Ombudsman.

Forms are to be sent to:

Earlene Holland:             earlene.holland@labor.alabama.gov

Phone or FAX   334-956-4031

Christine Dunn:              Christine.dunn@labor.alabama.gov

Phone or FAX 334-956-4032

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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.

Effective January 1, 2020, the mileage reimbursement rate for Alabama is 57.5 cents per mile, a .5 cent decrease from 2019.

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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.

Today marks 100 years since the Alabama Workers’ Compensation Act went into effect.  Back then, it was known as the Alabama Workmen’s Compensation Act.  While it has been expanded in the last century, much of the original 33 page Act (now closer to 450 pages including annotations) has remained unchanged.

Although there has been some recent controversy as to the constitutionality of the Act, it remains a much better alternative to employees having to prove tort liability and tort liability exposure for employers. 

As the Honorable E.R. Mills so adeptly stated in Singletary v. Mangham Construction, 418 So.2d 1138 (Fla. 1st DCA, 1982), “Workers' compensation is a very important field of the law, if not the most important. It touches more lives than any other field of the law. It involves the payments of huge sums of money. The welfare of human beings, the success of business, and the pocketbooks of consumers are affected daily by it.”

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 6, 2019, the Alabama Court of Civil Appeals released its opinion inJames Brooks v. Austal USA, LLC. The undisputed facts were that while the Complaint was filed prior to the expiration of the Statute of Limitations, the Complaint was not served on the employer for seven months, during which time the Statute of Limitations expired. The Court of Appeals held that to commence an action for Statute of Limitations purposes, a Complaint must be filedand there must be an intent to have the Complaint immediately served; and held further that if the employee performs all of the tasks required to effectuate service at the time of filing, that the action has commenced. In this case, the employee attempted to serve the Complaint at the time it was filed, albeit to an outdated registered agent. While it took several months after the failed attempt for the Complaint to be served, the Court of Appeals determined that there was an attempt to serve at the time of filing. For this reason, the case was reversed and remanded.

About the Author

This article was written by Karen E. Cleveland, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Fish Nelson & Holden is a member of The National Workers’ Compensation Defense Network (NWCDN). If you have any questions about this submission, please contact Cleveland by emailing her atkcleveland@fishnelson.com or by calling her directly at 205-332-1599.

On December 6, 2019, the Alabama Court of Civil Appeals released its opinion inColby Furniture Company v. Belinda Overton.  In Overton, the employer sought the termination of the employee’s right to future medical benefits.  The employee injured her neck in 1994 and received pain management treatment for over 22 years.  In 2005, she was given a panel of four pain management doctors from which she selected a new doctor thus burning the one panel owed to her per statute.  In 2015, she was dismissed from pain management for violating the narcotic agreement entered into with her doctor.  The employer subsequently filed a motion for summary judgment asserting that the employee already burned her panel and, in the alternative, that she forfeited her right to benefits due to her own misconduct under an unclean hands theory.  The Judge denied the motion and the matter proceed to an evidentiary hearing.  The Judge subsequently issued a Final Order which required the employer to provide another panel of four from which no appeal was taken.  The employer then undertook to comply with the Order by offering several panels.  Despite its best efforts, none of the selected doctors were willing to accept the employee as a patient.  The employer then filed a Motion for Additional Instructions outlining its efforts at complying with the Order and seeking further guidance from the Court on what could be done.  The Judge then issued a second Order requiring either that a panel of four be offered (presumably from which the employee could select a doctor that would accept her as a patient) or, in the alternative, that the employer negotiate a settlement of the employee’s future medical benefits.  The employer then filed a Motion to Alter Amend or Vacate that Order which was subsequently denied by operation of law.  The employer then appealed the second Order.

On appeal, the employer raised several issues including the fact that the employee was only entitled to one panel per the statute and the doctrine of unclean hands.  The Court of Appeals noted that the first Order which was conclusive and binding on the issues was not appealed.  The Court further noted that, in its Motion for Additional Instructions, the employer did not assert that only one panel was owed or that the employee was guilty of unclean hands.  Therefore, neither issue was deemed to be properly before the Court on appeal.  For that reason and only that reason was the trial Judge’s Order affirmed.

My Two Cents:   

This is one of those situations where no good deed goes unpunished.  The employer clearly tried to bend over backwards to comply with the trial Judge’s wishes.  In doing so rather than immediately appealing the ruling, it was forever precluded from seeking appellate relief.  One point of interest is that the second Order gives the employer an option.  It can either provide a panelOR negotiate a settlement of medical benefits.  This begs the question as to whether in electing to go with option #2, it could simply not provide a panel.  In the usual case, withholding medical benefits while attempting to settle medical benefits would immediately invite a cause of action for outrageous conduct (egregious settlement tactics).  In this case, it would seem that the court’s second Order would insulate the employer from such a lawsuit. 

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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.

On November 27, 2019 the Alabama Supreme Court released its opinion in Ex parte Dow Corning Alabama, Inc., et al.  In this case an employee was injured while working for Alabama Electric Company, Inc.  The injury occurred at Dow Corning Corporation.  Dow Corning sought to enforce an indemnification agreement that it alleged it had with the employer, Alabama Electric Company, Inc.  Also involved in this matter was Alabama Electric Company’s insurance carrier, National Trust Insurance Company, Inc.  Prior to the settlement the Dow defendants demanded a defense and indemnification from Alabama Electric and National Trust.  Alabama Electric ultimately refused the demand.  The Dow defendants then settled the case with the employee and, approximately one month after the settlement, Alabama Electric and National Trust filed a declaratory judgment seeking a ruling that they were not responsible for the defense cost incurred by the Dow defendants in the personal injury settlement nor were they responsible for the settlement proceeds.  The Dow insurers later filed a counter claim seeking reimbursement for defense costs and settlement funds that were paid to the Alabama Electric employee in the personal injury action.  During the declaratory judgment action Alabama Electric sought to depose a Dow representative and in the deposition notice requested documents related to the decision to settle, which would include the Dow attorney’s evaluation and recommendations for the defense and settlement of the claim.  The Dow defendant’s asserted that said information was privileged and protected by the attorney client privilege and/or the work product doctrine.  American Electric asserted that the Dow defendants waived the protection by seeking indemnity and made the reasonableness of the settlement an issue. 

The Alabama Supreme Court ultimately determined that the Dow attorney evaluation and recommendations were still privileged and did not have to be produced despite the fact that the issue of whether or not the settlement was reasonable and made in good faith was to be determined.  The Alabama Supreme Court held that American Electric had access to the facts and evidence, and other non-privileged information, that could be used in determining whether or not the evaluation and settlement was reasonable.  This would include experts which both parties had intended to use to review this information and determine the reasonableness of the settlement.  Therefore, the Court held that the Dow attorney evaluation and recommendations were to remain privileged and did not have to be turned over.  As a result, the Court granted Dow’s Petition for Writ of Mandamus and directed the trial court to vacate its discovery order which was going to require the Dow defendants to produce their attorney evaluations and recommendations.  The Court further held that an appropriate protective order was to be entered. 

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.  Mr. Holden can be reached at jholden@fishnelson.com or (205) 332-1428.

On November 15, 2019, the Alabama Court of Civil Appeals released its opinion inEx parte Sea Coast Disposal, Inc., in response to a Petition for Writ of Mandamus. The employer argued there was insufficient evidence to support the trial court’s determination that the employee’s neck and back claims were compensable.  Regarding the neck, the Court of Appeals reviewed the evidence, consisting of medical records, medical expert testimony, and the testimony of both plaintiff and his father-in-law, regarding the onset of symptoms, including swelling in the plaintiff’s neck. The Court of Appeals determined that there was “substantial evidence” supporting the trial court’s finding of compensability. The Court of Appeals then reviewed the evidence regarding the low back, including an almost one-year delay in the onset of symptoms, infrequent complaints, and no supporting causation opinion from a medical expert. The Court of Appeals held that there was not “substantial evidence” for the trial court to have reasonably inferred that the low back injury was compensable. The Petition for Writ of Mandamus was granted in part and denied in part.

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About the Author

This article was written by Karen E. Cleveland, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Fish Nelson & Holden is a member of The National Workers’ Compensation Defense Network (NWCDN). If you have any questions about this submission, please contact Cleveland by emailing her atkcleveland@fishnelson.com or by calling her directly at 205-332-1599.