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 March 29, 2019, the Alabama Court of Civil Appeals released its opinion in Ex parte Trusswalk, Inc. wherein it addressed a trial court’s ability to order pain management in the absence of a supporting medical necessity opinion from a doctor. InTrusswalk, the trial court ordered the employer to send the injured employee to pain management despite the fact that no doctor had recommended it. In issuing the order, the trial court relied on the fact that, after 5 back surgeries, the employee claimed to have chronic low back pain. The employer promptly filed a petition for a writ of mandamus.
In its petition, the employer argued that the trial judge lacked the authority to direct a referral for pain management where the authorized treating physician had not recommended same. In its brief and during oral argument, the employer argued that the trial court lacked the authority to order pain management in the absence of a supporting medical necessity opinion from any doctor.
In its opinion, the Court of Appeals cited to the Alabama Administrative Code for both the Board of Medical Examiners and the Department of Labor for the proposition that pain management is a specialty that necessitates a supporting opinion from a medical expert. Since no doctor had offered such an opinion, the Court granted the petition and directed the trial court to vacate its order.
My Two Cents
It is well settled in Alabama that a trial court cannot compel medical treatment when the issue of compensability remains in dispute. So as not to lose control of treatment, employers will sometimes agree to direct medical care while, at the same time, deny the claim. In Trusswalk, the employer denied all the material allegations of the Complaint in its Answer and, therefore, the issue of compensability remained in dispute. This was not raised in the employer’s petition and so it was not addressed by the Court of Appeals.
Two More Cents
Following the hearing on the plaintiff’s motion to compel pain management, the trial court issued an order that included findings of fact and conclusions of law. Interestingly, one of the findings of fact was that the employee suffered a work-related back injury. The trial court also held that the employee’s chronic pain condition arose out of his work related accident and injury. Such findings should have only been made following a trial on the merits. If the judge elected to treat the hearing on the employee’s motion as a trial, then the employer’s right to 60 days’ notice was violated. If the hearing was not treated as a trial, then the issues of compensability and chronic pain should remain at issue. Unless the employer can get another Marshall County judge to handle the trial, the proverbial cards on these important issues have already been laid down.
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 May of 2017, we reported that an Alabama Circuit Court Judge issued an Order declaring the entire Alabama Workers’ Compensation Act unconstitutional. In June of 2017, we reported onwhat needed to happen to fix the Alabama Workers’ Compensation Act. In November of 2017, we reported that theAlabama State Bar Association had appointed a task force to review the Act and make recommendations on how to fix it. In April of last year, we reported onthe types of changes the task force was looking at making. On October 17, 2019, the task force unanimously approved a proposed bill that would make substantial changes to the Act. Unfortunately, the Alabama Council of Association Workers’ Compensation Self Insurance Funds was not invited to participate on the task force. This was a major oversite as the Council represents self-insurance funds providing workers' compensation coverage for 16,200 Alabama businesses employing 375,000 people. The Councilvoted against the proposed bill primarily because it raises legal fees for plaintiff attorneys by one-third and does nothing in the short run to reign in hospital, doctor, and other medical costs. It also more than doubles the cap on certain disability payments to injured workers and adds an inflationary adjustment. Although it voted no to the proposed bill as drafted, it did state that it was open to discussing change.
The Alabama legislature began its regular session this month. Although our Governor called a special session to tackle Alabama’s “crumbling infrastructure,” nothing has been introduced regarding the workers compensation system. Some would argue that the Alabama House and Senate have many new faces this year and, therefore, it would be difficult, if not impossible, to quickly effectuate any major change to the Workers’ Compensation Act. But then it would be difficult to explain how a55% gas tax hike that was largely unpopular with the electorate was rushed through the legislature and signed into law in just 5 days.
Despite forming the task force, the Alabama Bar Association is prohibited from throwing its support behind any proposed legislation. Therefore, there is no organization pushing for immediate change at this time. According to the Alabama Department of Labor, it is a state regulatory agency tasked with the responsibility of following and enforcing the laws put in place by the legislature. As the regulator, it typically does not comment on proposed legislation. However, it acknowledges that the current workers’ compensation laws are not ideal and that amendments are needed that benefit both injured workers and employers. It will follow and enforce any changes that are made, if any.
Meanwhile, our neighbor to the east has wasted no time pushing for change. During its 2019 legislative session, the Georgia Senate unanimously passed abill that would raise the maximum weekly benefit for temporary total and permanent partial disability. If approved by the House and signed by the governor, it would mark the largest increase to the caps in decades. Is this change in response to a Georgia court recently declaring the entire Georgia Workers’ Compensation Act unconstitutional? No. Rather, it is the result of all interested parties progressively working together to effectuate needed change. The last time that happened in Alabama was 1992.
What Happens Now?
Unless something is done legislatively, it is inevitable that another circuit court judge will, again, address the constitutionality of the Act. Since nothing is going to be introduced or passed during this legislative session, at a bare minimum a committee comprised of all interested parties needs to be formed that can make recommendations for change. The 1992 reforms were passed as the result of the Department of Industrial Relations (now Department of Labor) initiating discussions between the interested parties. Informal discussions resulted in a reform bill being introduced in 1991. The bill easily passed the House but was not voted on by the Senate. Negotiations continued through the remainder of 1991 and into 1992. Prior to the next legislative session (special session in January), Governor Hunt called for formal negotiations. Still no consensus was reached. Negotiations and lobbying continued and a revised bill was finally passed in the regular session a few months later. If history is any indicator, negotiations need to begin now if there is to be any chance of change in 2020.
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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 March 1, 2019, the Alabama Supreme Court issued its opinion regarding the largest retaliatory discharge jury verdict ever recorded in Alabama. Notable facts from the underlying case are as follows:
The employee had a compensable workers’ compensation accident.
The authorized doctor assigned work restrictions that could not be accommodated.
The employee was on workers’ compensation leave for 4.5 months.
He received TTD during that time period.
While he was out, the employer hired another driver to replace him.
When the employee attempted to return to work, he was told that he was no longer needed.
The employer admitted that it did not follow its own return to work policies when it terminated the employee without making an effort at finding another position for him.
The employer was actively looking for drivers during the same time period that the employee was terminated.
Another employee was terminated for the same reason when he attempted to return to work.
In an e-mail, the employer admitted to improperly terminating both employees.
The employee was allowed to claim lost future earnings even though he was earning more with a new employer at the time of trial. This was because he was able to demonstrate that his higher earnings were due to his working longer hours (936 more hours per year) as opposed to his earning equal or higher wages.
At the close of the evidence, the jury returned a unanimous verdict in the employee’s favor in the amount of $1,259,451.52 (comprised of $314,862.88 in compensatory damages and $944,588.64 in punitive damages).
On appeal, the Alabama Supreme Court affirmed the judgment.
My Two Cents
Employees are certainly not insulated from termination simply because they have filed a workers’ compensation claim. However, employers should proceed with a high degree of caution when considering the termination of a claimant. At a bare minimum, all applicable handbooks/policies should be thoroughly reviewed and an attorney that is well versed in such matters should be consulted.
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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 three days of education, fun, and fellowship. Membership is only $75 if paid prior to February 27, 2019. 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. This year, the 38th Annual AWCO Spring Conference will be held May 9-10, 2019 at the Sheraton Hotel in downtown Birmingham! For more information on how to join the AWCO or register for the Spring Conference, please call or e-mail me (contact info below).
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.
Ombudsmen Patricia Fraley and Ted Roose plan to continue to keep regular office hours on the 2nd and 4th Tuesdays of every month from 9-12 and 1-3 for anyone who wants to submit a settlement for their review. There is no need to make an appointment for these times but it is a good idea to call and give them a heads up just to make sure they will be there.
2019 OFFICE DAYS FOR BRCS
ALABAMA CARRER CENTER
3216 4TH AVENUE SOUTH BIRMINGHAM, AL 35222
9:00 AM- NOON & 1:00 PM-3:00 PM
FEBRUARY 12, 2019 FEBRUARY 26, 2019
MARCH 12, 2019 MARCH 26, 2019
APRIL 9, 2019 APRIL 23, 2019
MAY 14, 2019 MAY 28, 2019
JUNE 11, 2019 JUNE 25, 2019
JULY 9, 2019 JULY 23, 2019
AUGUST 13, 2019 AUGUST 27, 2019
SEPTEMBER 10, 2019 SEPTEMBER 24, 2019
OCTOBER 8, 2019 OCTOBER 22, 2019
NOVEMBER 12, 2019 NOVEMBER 26, 2019
DECEMBER 10, 2019 DECEMBER 17, 2019
Ombudsmen
Patricia Fraley 205-305-6343 patricia.fraley@labor.alabama.gov
Ted Roose 205-307-8576 theodore.roose@labor.alabama.gov
The Career Center located at 3216 4th Avenue South (Birmingham).
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.
Alabama Representative James Haynes ( R ) has recently introduced two bills related to cancer coverage for firefighters. Both of these bills were introduced on January 10, 2019 and are set to be read for the first time on March 5, 2019.
The first bill, HB2, will establish a rebuttable presumption of causation when a firefighter if diagnosed with cancer. Specifically, cancer for firefighters will be considered an occupational disease when it manifest itself in a paid firefighter during a period in which the firefighter was in service provided the firefighter demonstrates he or she was exposed, while employed by the Employer to a known carcinogen that is reasonably linked to disabling cancer. The cancer is presumed to arise out of the employment unless the Employer proves by preponderance of the evidence that the cancer was not caused by some other means. The bill does exclude firefighters who smoke or use other tobacco products. If the firefighter smoked or used other tobacco products then they lose the presumption and have to prove by preponderance of the evidence that the cancer was caused by the job. In addition, for the presumption to apply, the firefighter must demonstrate that they passed a physical upon entry into service with the Employer with no evidence of cancer and that, referenced above, they were exposed to a carcinogen.
The second bill, also introduced by Rep. Haynes, is HB18. This bill applies to retired firefighters who suffer from occupational exposure cancer which is diagnosed within 10 years for retirement. This bill would find that if the retired firefighter is diagnosed with occupational disease cancer within 10 years of retirement, they would be entitled to reimbursement of out of pocket expenses not covered by their health insurance or Medicare. These expenses would be owed by the Employer where the firefighter retired from. The bill states that no reimbursement would be owed for experimental treatment or travel out of treatment network unless the treatment was requested by the doctor and approved by their insurance. The bill specifically states that reimbursement would not be required if the cancer was caused by some other means than the occupation.
As stated above, both of these bills are set to be read for the first time on March 5, 2019. HB2 is scheduled to be referred to the House of Health Committee and HB18 is set to be referred to the House of Representatives Committee on Ways and Means General Fund.
We will continue to monitor these bills and update as they progress.
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.
In November of 2017, the Alabama State Bar appointed a task force to review the Alabama Workers’ Compensation Act and make recommendations for improvement. On October 17, 2018,the task force unanimously approved a proposed bill that contained substantial changes to the Act. Recently, the Alabama Council of Association Workers’ Compensation Self Insurance Funds (Council) voted to oppose the proposed bill. The Council, which represents self-insurance funds providing workers' compensation coverage for 16,200 Alabama businesses employing 375,000 people, primarily objects to the proposal because it would raise legal fees for plaintiff attorneys by one-third and do nothing in the short run to reign in hospital, doctor, and other medical costs. It also more than doubles the cap on certain disability payments to injured workers and adds an inflationary adjustment.
"While the Council is always willing to work with any group to make meaningful and fair improvements to Alabama workers' compensation law, any such negotiation must include all parties", the statement said. The Council was not included in the ABA appointed committee that drafted and approved the proposed bill.
My Two Cents
Although the Alabama Legislature could consider changes to the law when its Regular Session begins in March, it is unlikely that anything will get passed committee in light of the recent Council opposition and the fact that the neither Alabama Bar Association or the Workers’ Compensation Division of the Alabama Department of Labor are in a position to recommend the proposed bill or otherwise voice support. According to the ADOL, it is a state regulatory agency tasked with the responsibility of following and enforcing the laws put in place by the legislature. As the regulator, it typically does not comment on proposed legislation. However, it acknowledges that the current workers’ compensation laws are not ideal and that amendments are needed that benefit both injured workers and employers. It will follow and enforce any changes that are made, if any.
If changes of this magnitude are to have any chance of success in committee, there must be a consensus of all interested parties. That is not to say that it cannot get done. It is just a little optimistic to think it can get done in the next few months.
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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 January 4, 2019, the Alabama Supreme Court released its opinion in Ace American Insurance Company v. Rouse’s Enterprises, LLC d/b/a Rouses Markets wherein it reversed a trial court’s order dismissing the lawsuit for failure to prosecute. At the trial court level, Ace American Insurance successfully intervened in the lawsuit in order to protect its sizable subrogation lien. When the plaintiff failed to prosecute the case, the judge issued an order giving a set amount of time in which the plaintiff was to respond or the case would be dismissed. Although the plaintiff failed to respond, Ace American Insurance did respond seeking to keep the case pending so that it could take the necessary steps to protect its subrogation interest. Despite the response from Ace, the trial court dismissed the entire case. Ace appealed.
On appeal, the Alabama Supreme Court noted that Ace fully complied with the trial court’s order and set forth its intention to proceed against the defendant on its own. Since dismissals with prejudice are considered drastic sanctions that are only to be applied in extreme situations, the Court carefully scrutinized the trial court’s order and determined that judgment was due to be reversed.
My Two Cents
Interestingly, Ace’s subrogation lien concerned workers’ compensation benefits paid pursuant to a Louisiana claim. The Complaint for Intervention was filed in an Alabama Circuit Court by a Mississippi lawyer. Since the subject accident occurred in Alabama, the laws of Alabama apply to the lien recovery rights. Alabama Code Section 25-5-11(d) states that an employer or insurance carrier may bring a civil action directly against the alleged third party tortfeasor but only if the injured party (claimant) fails to file a civil action within the time allowed by law. In that event, the employer or insurance carrier is afforded an additional 6 months in which to bring a direct civil action against the third party. In this case, the claimant did bring a civil action within the 2 year statute of limitations. This begs the question, was the carrier’s right to proceed directly ever triggered? If not, this is definitely a loophole that needs to be corrected during the next major revision of the Alabama Workers’ Compensation Act.
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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.
Alabama Appellate Court Determines that Using the Same Standard for the Left and the Right Made a Wrong
On January 4, 2018, the Alabama Court of Civil Appeals released its opinion inEnterprise Leasing Company –South Central, LLC v. Benson Drake. At trial, the employee claimed an initial left leg injury due to an accident and a subsequent right leg injury due to issues related to an altered gait. The trial court concluded that both legs were compensable but applied the lower substantial evidence standard to both. The Employer appealed.
On appeal, the Court of Civil Appeals reversed and remanded the trial court’s order with instructions to apply the higher “clear and convincing” standard to the subsequent right leg injury. Specifically, the Court instructed the trial court to review the evidence adduced at trial and determine whether or not the employee proved, by clear and convincing evidence, that his right leg injury was the direct and natural consequence of the left knee injury.
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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, 2019, the mileage reimbursement rate for Alabama is 58 cents per mile, a 3.5 cent increase from 2018.