On August 27, 2010, the Court of Civil Appeals released their opinion in the Water Works Board of the City of Birmingham v. Allan Isom, affirming the trial court’s decision that the plaintiff suffered a new injury and was entitled to permanent partial disability benefits, pursuant to the Alabama Workers’ Compensation Act.

The evidence presented to the Court was that the plaintiff suffered injury to his left shoulder in 2003, which resulted in two surgeries to repair a tear in the left shoulder. In August 2005, the plaintiff was returned to work with no restrictions, with a disability rating of 10% to the body as a whole. This rating was based on a Court approved settlement of the 2003 injury.

In July of 2006 the plaintiff was involved in a second accident, re-tearing the left shoulder. He was returned to MMI with a 6% rating to the body as a whole. The authorized treating physician and medical records indicate he had recovered from the first injury and suffered a new injury. He filed another lawsuit claiming he suffered a new injury and was owed benefits. The Trial Court award him a permanent partial disability of at least 12.5% for loss of use of his left arm.

The employer argued it was a recurrence, not a new injury, and that because he already received a 10% rating, he was not entitled to benefits for a 6% rating.

The Court of appeals ruled that because the plaintiff was able to perform his job duties in a normal manner the 2003 injury had healed and was deemed not to exist pursuant to Alabama case law. Therefore, the 2006 accident re-tearing the same shoulder was a new injury and he was due workers’ compensation benefits for this new injury.

Of note, the Court also reiterated that despite the Act stating the employee must provide written notice, oral notice is sufficient when it provides the employer actual notice. The Court stated that just saying I injured my shoulder would not be sufficient but telling the supervisor about the injury and how it happened was enough. The purpose being, that notice is satisfied if the employer was assured the opportunity to investigate and protect itself.

An Etowah Count Jury returned a defense verdict in a retaliatory discharge claim on September 30, 2009.

At trial, the evidence revealed that the employee was working for a lawn service company when he injured his left knee. According to the employer, the employee returned to work almost immediately with no medical restrictions. However, upon his return the employee was not completing jobs that were assigned to him and was having conflicts with other employees. As a result, the employer alleged it began to lose customers and terminated the employee. At the time of the termination, the employer stated that it was unaware of the status of the employee’s workers’ compensation claim.

According to the employee, he had returned to work at light duty and was undergoing physical therapy when the employer terminated him. At that point, the employee filed a lawsuit for workers’ compensation benefits and also claimed retaliatory discharge. The workers’ compensation claim was settled and the employer defended the retaliatory discharge claim stating that his termination was not the result of the workers’ compensation claim. Upon hearing the evidence and arguments, the jury returned a defense verdict.

Jeff White v. HB&G Building Products, Inc.;

On August 20, 2010, the Alabama Court of Civil Appeals considered a matter involving the Last Injurious Exposure Rule. This rule deals with subsequent injuries in workers’ compensation involving accident dates with either two different insurers or two different employers.

In this case, the employee fell and injured his knee. His treating physician first indicated that there was a probable tear to the soft tissue around the employee’s knee cap. After two months of treatment, the treating physician made the determination that the employee’s knee had healed and returned him to regular duty. The employee continued to complain to the treating physician and requested a second opinion; which the treating physician encouraged. The physician set up an appointment for the employee to be seen by a second physician.

In between the time the employee asked for the second opinion and the time he saw the second physician; the employee voluntarily changed jobs. The employee’s new job required him to stand most of the day (something the previous job did not require). The employee stated that at his new job his knee would ache and swell everyday and that he would occasionally develop leg craps.

At trial the second physician stated that while he thought the employee’s job requirements could have aggravated the existing injury; he did not know whether the injury was a new injury, an old injury, an aggravation, or a recurrence. The Trial Court found that the employee’s knee injury was an aggravation of the injury he had incurred with the first employer.

The last injurious exposure rule mandates that a new employer is responsible for the treatment of the employee if: 1) the second injury is an aggravation of the prior injury; or 2) the second injury is a "new injury." The new employer is not responsible if the second injury is an old injury or a recurrence (of an old injury).

The Alabama Court of Civil Appeals reversed the judgment of the lower court stating that there was no evidence to support the trial court’s findings that there was either a second injury to the knee or that the employee had aggravated his previous injury.

Shadescrest Health Care Center v. Holloway

Released August 6, 2010

The Alabama Court of Civil Appeals opined that just because there are two possible ways to view the facts does not mean the Trial Court should be reversed.

Holloway injured her back as the result of a fall at work in January of 2001 and did not seek treatment until October of 2002. After conservative treatment failed Holloway underwent a lumbar fusion in April of 2003. On September 18, 2003 Holloway was placed at MMI and returned to work with restrictions pursuant to an FCE. The FCE indicated Holloway could perform certain task and Shadecrest provided a position that met the restrictions. After two days Holloway called in and said she could not perform the duties and she would not return to work. Vocational evidence was introduced and both experts opined that Holloway was a candidate for vocational rehabilitation if her pain was managed. Holloway testified that her pain prevented her for working and performing normal activities of daily living. The Trial Court felt Holloway’s testimony was credible and that Holloway was not a candidate for vocational rehabilitation. This lead to a permanent and total disability verdict.

On appeal, Shadescrest argued that substantial evidence supported its theory that Holloway was not permanently and totally disabled and she was a candidate for vocational rehabilitation. Shadescest pointed to the fact that Holloway stated in her vocational report that she did not return to work because a lawyer told her not to. The Court of Appeals stated that the mere existence of evidence that might serve as a basis to question Holloway’s credibility does not support a reversal of the Trial Court’s finding of fact.

Shadescrest also argued that the FCE supports a finding that Holloway can perform light duty and vocational testimony supports a finding that Holloway is a candidate for vocational rehabilitation.

The Court of Appeals stated that their was evidence to support a finding that Holloway could not perform the light duty provided and that she was not a candidate for vocational rehabilitation. They pointed out that just because there was evidence to support a contrary finding of fact, that a reversal of the Trial Court will only be given if the evidence does not support the Trial Court’s view of the facts.

Of note, the Court of Appeals not did not address the argument that Holloway could not be determined permanently and totally disabled because she refused reasonable accommodation or vocational rehabilitation pursuant to §25-5-57(a)(4)d. The Court of Appeals held that Shadescrest did not make this argument at trial. Therefore, it could not be considered in the appeal. Judge Thomas concurred in the opinion but said he felt Shadescrest did argue this defense at trial to allow for review in the appeal.

Karen Harris v. Russell Petroleum Corporation:

On August 6, 2010 the Alabama Court of Civil Appeals set out the standard of proof when dealing with the medical cause of successive injuries in workers’ compensation.

The wife of a deceased fuel-delivery truck driver sued the employer claiming that her husband’s death was compensable under the Alabama Workers’ Compensation Act. The employee had worked for the employer for almost thirty years. During his employment, he had two work related accidents for which he received workers’ compensation benefits. In 2001, the employee injured his right knee and in 2002, he injured his left knee. Both of these accidents required surgical intervention at the time of the accident. In 2008, the employee underwent bilateral knee replacement surgery. One day after the surgery, the employee suffered a stroke, which resulted in his death.

The wife claimed that the cumulative stress of performing the employee’s job duties had caused the employee to need the knee replacement surgery and that the surgery had, in turn, caused the employee’s stroke. The trial court relied on the testimony of the orthopedic doctor who treated the employee as well as, a board certified neurologist in determinating whether or not the knee surgery had indeed been the cause of the stroke. The court found that because neither doctor could say to a "medical degree of certainty" that the knee surgery caused the stroke, that there was no "clear and convincing evidence" to establish a causal link between the two. Therefore, the trial judge ruled in favor of the employer and the employee appealed the decision.

The Alabama Court of Civil Appeals reiterated that when a primary injury is shown to have arisen out of and in the course of the employment; every other injury that flows from the first injury, also arises out of the course of employment; unless the claimant’s intentional conduct caused the new injury. The Court made a distinction between a claim that the original injury gradually caused the current injury; and a claim that the original injury suddenly and traumatically caused the new injury. In the first instance, the clear and convincing evidence standard would apply but, in the second instance, the preponderance of the evidence standard would apply. The distinction is one of degree. Preponderance of the evidence means that the claimant needs only to prove that the old injury more likely than not caused the new one. Clear and convincing evidence means that the claimant needs to prove a high probability that the old injury caused the new one.

The Court also took the opportunity to clarify the issue of whether there needed to be a finding to a medial degree of certainty that the knee injury caused the employee’s stroke. The Court stated that the employee did not need to have any "magic words" to prove that they new injury was caused by the old one; but rather that the Court should have made such a finding if the evidence, when viewed as a whole had shown that there was more than a mere possibility that the knee replacement surgery caused the employee’s stroke.

The Court of Civil Appeals thus reversed and remanded the case back to the Montgomery Circuit Court in accordance with its finding.

Michael Chad McDaniel v. Helmerich & Payne International Drilling Company:

On July 30, 2010 the Alabama Court of Civil Appeals reversed a summary judgment based on the "going and coming rule." Under the "going and coming" rule, if an accident occurs while a worker is traveling to or from work, such accident falls outside of the course of employment requirement necessary for recovery of a workers’ compensation injury. In reversing the summary judgment of the lower court; the Court of Appeals held that a genuine issue of material fact existed as to whether the employee had already commenced his workday prior to the accident. 

The facts revealed that the employee was injured on his way to "rig down" an oil rig located at a site in Creola, Alabama. The night before the accident the employee had slept in a trailer located at a site in Chunchula, Alabama. This trailer was provided by the employer and had been in use at the Creola site. It had been moved to the Chunchula site in anticipation of moving the rig to that site. In keeping with company policy, the employee attended a safety meeting at the Chunchula site prior to going to the Creola site for the "rig down."

The Court of Appeals found that there was enough presented evidence to preclude a summary judgment. The Court found there was a dispute as to whether the employee was required to stay in the crew trailer on the night prior to the accident and whether his workday began with the safety meeting conducted at the Chunchula work site. Since such a dispute existed; the Court found that summary judgment was improper and remanded the case to the Circuit Court for further proceedings.

Joseph Grace v. Standard Furniture Manufacturing Company, Inc.:

On July 23, 2010, the Alabama Court of Civil Appeals released this opinion wherein it affirmed the trial court to the extent that evidence of earning loss capacity was held inadmissible. Specifically, it was proven at trial that the claimant was earning more than he was at the time of the injury. The claimant argued on appeal that the Return to Work Statute merely creates a rebuttable presumption that the plaintiff sustained no loss of earning capacity. The Court noted that the case law cited by the claimant all predated the 1992 Amendments and the Return to Work Statute now states in no uncertain terms that evidence of earning capacity loss shall not be considered. The Court also reversed the trial court’s decision to consider only the impairment rating allocated to the new injury. Evidence at trial revealed that the treating physician reduced the impairment rating so as not to include any impairment related to preexisting conditions. The trial judge adopted the doctor’s reduced impairment rating. The claimant argued that his preexisting conditions should not have been considered and the impairment rating should not have been reduced since he was able to work without restriction at the time of the accident. The Court agreed and reversed the trial court on that issue.

W.A. Kendall & Company, Inc. v. Ryan Madison:

On July 23, 2010, the Alabama Court of Civil Appeals reversed a verdict in favor of the plaintiff for permanent and total disability. At trial, the plaintiff presented evidence that he developed two boils under his left arm pit which were lanced. His employer was provided notice of the boils. The plaintiff later developed a right wrist injury, a staph infection, and endocarditis of the mitral valve in his heart which required surgery. The trial judge held that the notice requirement was satisfied because the employer was told about the boils. The overwhelming medical testimony, however, demonstrated that the staph infection, which caused the mitral vale problem, was caused by the wrist injury. As a result, the Court of Appeals reversed the trial court with instructions that it make a finding of fact as to whether notice was provided to the employer.

On April 17, 2009, the Court of Civil Appeals released its opinion in Lana Brown v. Patsy Patton d/b/a Korner Store. You can find a summary of the holding on our Blawg under the causation category (see categories listed in column on right). Since the release of this opinion, it has been routinely cited by attorneys as binding law that claimants no longer have to prove that their injuries arose out of their employment. However, it is an unpublished opinion and, therefore, not yet binding authority. the reason being that the employer filed a petition for a writ of certiorari with the Supreme Court which was granted. As a result, the Court of Civil Appeals did not enter a certificate of judgment pursuant to Rule 41 of the Alabama Rules of Appellate Procedure. Therefore, until the Supreme Court releases its opinion, the decision by the Court of Civil Appeals, which arguably does away with the "arising out of" portion of legal causation cannot be considered legal precedent.

Until the Supreme Court rules one way or the other the Lana Brown case is not the law in Alabama. As a result, claimants must continue to prove that their injuries occurred in the course of their employment and that their injuries arose out of their employment.

In cases where a worker is injured by a third party’s wrongdoing the workers’ compensation insurance carrier is entitled to recover a portion of the benefits it pays out from the responsible third party (or their insurance company).  For example, if a delivery worker injures themselves during the course of a delivery on a third party’s property because of a third party’s negligence, the worker will have a workers’ compensation claim and the workers’ compensation insurance carrier will have a claim against the third party.  The workers’ compensation carrier’s derivative claim is called a subrogation lien.

There are many occasions where the cost of litigation makes it inefficient for the WC carrier to pursue this lien, especially in cases involving small compensatory medical benefits and no lost time at work.  Arbitration Forums’ Special Arbitration Agreement, however, provides a cost effective avenue for subrogation on these smaller claims.  Arbitration Forums (AF) has hundreds of members nationally that are either self-insured businesses or insurance carriers.  If the WC carrier and the third party’s insurance company are both AF members, and both are signatories to AF’s Special Arbitration Agreement, then the WC carrier will be able to compel arbitration for their subrogation lien under Article First (c) of the Agreement.  The Agreement allows for compulsory arbitration for recovery of the benefits paid to the worker only, and does not include additional damage that could have been sought by the injured worker.  AF will not be able to handle any claims where an injured worker is pursuing his or her own claim.

This ability to compel arbitration greatly reduces the costs of pursuing payment from the third party insurance carrier.  These lower costs vastly increase the number of claims where it is worth pursuing subrogation and could potentially result in millions of dollars saved over the long run.

According to AF’s website, “Recovery in Special Arbitration is ideal when: [a] third party tortfeasor is denying your lien; claimant will not be pursuing the bodily injury claim and recovery is allowed by state law; workers’ compensation benefit that were paid are relatively low and it isn’t costeffective to pursue through third party litigation; the foreign state provides for an independent right of recovery; claimant acknowledges that he is not represented and will not be pursuing a third party action.  Recovery in Special Arbitration for workers’ compensation may be problematic when: claimant is represented by counsel and either pursuing or planning to pursue a third party action, depending on the state you are in; claimant is pursuing an injury claim and by state law your lien is subject to that recovery; the foreign state does not provide for an independent right of recovery for the workers’ compensation carrier; the time period in which a carrier has to initiate a third party action has expired and the right to file now belongs to the claimant; future credit concerns overshadow the carrier’s interest in recovery of its lien.”

My Two Cents:

Ala. Stat. 25-5-11 doesn’t give an employer the pursue a subrogation lien independently until the statute of limitations has passed for the worker to pursue his own claim against the third party tortfeasor.  Once the statute of limitations has lapsed, the workers’ compensation insurer will have a six month window to file suit.  It is during this period that the Special Arbitration Agreement member workers’ compensation insurance carrier should determine if the opposing insurance company is also a signatory to the agreement.  If both companies are, then the workers’ comp carrier should submit their claim to AF and compel arbitration.

Ala. Stat. 8-1-41 (3) says that pre-dispute arbitration agreements are unenforceable under Alabama law.  However, this statute is preempted by the Federal Arbitration Act, 9 U.S.C. 1-14, in contracts affecting interstate commerce.  The United States Supreme Court has rejected the Alabama Supreme court’s stringent test that a contract must have a “substantial effect on interstate commerce” and instead has held that a contract must only “affect commerce” (which gives the broadest permissible exercise of Congress’ Commerce Clause Power) in order for the Federal Arbitration Act to apply.  Citizens Bank v. Alafabco, Inc., 539 U.S. 52 (2003).  Arbitration Forums’ Special Arbitration Agreement has signatories from insurance companies and self-insured employers all over the country.  It would almost definitely fall within the “broadest permissible exercise” of the Commerce Clause.  Therefore, the Federal Arbitration Act should govern any subrogation dispute that would arise from the Agreement, and 9 U.S.C.   2 specifically states that pre-dispute arbitration agreements are valid.

There are two of Arbitration Forums’ Rules that must be followed if the Special Agreement is being used to compel arbitration.  Rule 2-1 has a clause stating, “Special Arbitration should be filed within 180 days of payment to the claimant or the delay may be asserted as an affirmative defense if it can be shown to have caused prejudice to the party raising the defense.”  Since Alabama law only allows the workers’ comp carrier 6 months (180 days) to file a claim all legitimate Alabama claims should meet this rule.

Rule 1-2 states, “When a matter that should have been filed in arbitration under one of the Agreements is placed in litigation, the party filing in litigation must dismiss/discontinue the suit within 60 days of notification of the adverse party’s signatory status . . . if suit is not dismissed/discontinued, the party seeking removal may be entitled to statutory interests and all costs and expenses the court may deem appropriate.”  This basically places an affirmative duty on the party seeking subrogation to find out if the opposing party is also a signatory to the Special Arbitration Agreement.  If both parties are signatories, then Arbitration Forums is the only appropriate forum where subrogation can be sought.

One area that is unclear under Alabama law is whether or not filing for arbitration will toll a statute of limitations.  It is suggested that the comp carrier file arbitration as soon as they verify that the defendant company is a signatory to the Agreement, but if there are any unforeseen circumstances that make the possibility of arbitrating seem uncertain between filing and the end of the six month window, that the company go ahead and file the claim in state court in order to preserve the subrogation lien.

 For more information be sure to check out Arbitration Forums website and Gary L. Wickert’s article, “Sweating the Small Stuff: Arbitrating Workers’ Compensation Subrogation Files.”

www.alabamaworkerscompblawg.com

Although workers' compensation matters are exempted from HIPAA, it is a regular practice to have the claimant sign HIPAA releases so that the employer's attorney can review all of the claimant's medical records.  Does this release give the defense attorney the right to re-disclose the records to an expert witness?

Probably so. 45 C.F.R.164.508 (c)(2)(iii) of the Health Insurance Portability and Accountability Act (HIPAA) states that in every HIPAA release, language must be included that puts the patient on notice of, “The potential for information disclosed pursuant to the authorization to be subject to re-disclosure by the recipient and no longer protected by this subpart.”                                                                             

While any HIPAA compliant release should put the claimant on notice that the records may be re-disclosed, there is no harm in clarifying that this means the records will likely be shown to an expert witness.  Including language like, “I understand that once the above information is disclosed, it may be re-disclosed by the recipient and the information may not be protected by federal privacy laws or regulations, including disclosure to expert witnesses who may review the records for litigation purposes,” is probably a good practice.  It will put the claimant on notice that an expert witness will possibly review his records and will help the defense to avoid any allegations that they released records without permission.  The defense should also have the expert witness sign a non-disclosure/confidentiality agreement in regards to the records in order to further protect the plaintiff’s Personal Health Information.

If the client is a covered entity then it is necessary for there to be a Business Associate Agreement in place between the attorney and the client before any records can be released to the attorney.  Covered entities include health care providers, health care clearinghouses, and health insurance plans (but not workers’ compensation insurance carriers).  Once the Business Associate Agreement is in place, the attorney must then have the expert witness enter into a written agreement where he agrees to be bound by all the restrictions of the attorney-client Business Associate Agreement.

An often overlooked section of the Alabama Workers’ Compensation Act is the right to a jury trial. Factual and legal issues for workers’ compensation cases are typically resolved by a judge following a bench trial. When asserting a defense of willful misconduct however, the Act allows for the employer to demand a jury trial. If an employer does not demand jury trial; a plaintiff may do so by filling demand within five days after the appearance of the employer. The jury makes a determination only on as to willful misconduct; with the judge adjudicating the rest of the trial issues. Such a determination is "subject to the usual powers of the court over verdicts rendered contrary to the evidence or the law." In other words the judge can replace the jury’s findings if they are wholly unjustified by the law or facts.

My Two Cents:

It is the duty of a trial judge to liberally construe the Act and resolve all reasonable doubts in favor of the employee. A jury, on the other hand, may be less likely to lean towards the employee’s side. As such, making a jury demand may be a way to help level the playing field.

Ex parte Siemag

The Alabama Court of Civil Appeals denied a petition for a writ of mandamus (to compel the lower court to reverse itself) sought by two defendant corporations that were seeking to transfer venue on the basis of forum non conveniens. The forum non conveniens doctrine is used by defendants in an otherwise proper venue to transfer a case due to inconvenience of the parties.

The principal defendant attempted to sever the workers’ compensation claim and have it relocated to Tuscaloosa County because it conducted no business by agent in Walker County. Two other defendants sought to relocate the action against them from Walker County (the plaintiff’s county of residence) to Tuscaloosa County (the county where the injury occurred) on the basis of forum non conveniens. The trial court determined venue was proper and denied the motion.

On appeal the defendants cited lack of access to airports in Jasper as an undue hardship to the defense of the case in Walker County. They asserted that Tuscaloosa had a greater interest in adjudicating the actions than did Walker County because of Tuscaloosa County’s extensive mining activity and larger judge allocations and juror pools.

The Alabama Court of Civil Appeals denied the defendants assertions citing the higher degree of hardship which would be suffered by the plaintiff who was a double amputee. The Court also alluded to the large volume of mining activity in Walker County and the extensive history of Walker County courts adjudicating mining related cases. Most notably the Court stated that because the ruling on venue had been proper and a workers’ compensation claim existed against the principal defendant in Walker County; the trial court did not abuse its discretion in finding that a change of forum would not be proper.

CMS’ new policy memorandum addresses the separate issues of (a) off label and/or unlabeled outpatient drug uses and (b) rated ages in relation to the agency’s Workers’ Compensation Medicare Set-Aside (MSA) program. 

Through the May Memo, CMS sets forth new guidelines regarding when off label and/or unlabeled drugs are covered by Medicare Part D and, thus, includable as part of a workers’ compensation MSA proposal.  In addition, CMS has rescinded its previous rated age policy and announced that the MSA submitter will now need to include very specific rated age “certification statement."

For full details, please visit NuQuest BridgePointe Settlement News.

www.alabamaworkerscompblawg.com 

On April 20, 2010, Transocean’s Deepwater Horizon drilling rig exploded, leading to 1.3 million gallons of crude oil leaking into the Gulf of Mexico per day. By comparison, the Exxon/Valdez spill, which has long been considered the worst environmental disaster in American history, only consisted of 10.8 million gallons of crude oil…total. The Gulf spill is reaching that number once every 8 days.The total estimated cost of clean up will be between $15 - 23 billion. BP will also be liable for an estimated $14 billion in lawsuits brought by the fishing and tourism industries in the Gulf states. One future consequence of the oil spill that is not as readily apparent, however, is the effect that the spill will have on employers and workers compensation insurance carriers.

Over 25,000 workers were helping clean up the Gulf Coast by the beginning of June. The number of workers participating in the cleanup will only rise in the coming months. According to WKRG5 in Mobile, AL BP relies on subcontractors to handle this work. BP requires that the workers go through at least four hours of training before being certified to participate in the cleanup, but it appears that many of these workers are under trained and under-supervised. The Labor Department has already voiced concerns that BP’s safety systems for these workers are grossly inadequate. The dangers these workers face range from inhaling toxic chemicals and coming in direct skin contact with the crude oil to ergonomic stresses and heat stroke. Some workers participating in the cleanup in Louisiana have already fallen ill. One only has to read about the long term health problems that have afflicted the cleanup workers from the Exxon/Valdez spill and then look to the media for photographs and videos of clean up workers with minimum or no protective gear.

There are a number of Gulf Coast personal injury attorneys who have already begun marketing their law firms to workers in anticipation of future workers comp claims. It is important that employers (and their workers’ comp insurance carriers) begin taking proactive measures to protect these workers if they are involved in the cleanup. OSHA has published a list of precautions that should be taken on their website. These include general things such as regular rest breaks to prevent heat stroke, having water readily available, providing sun screen to protect from sun poisoning, and providing personal protective equipment to protect employees from the toxins in both the crude oil and the dispersants being used to clean the spill. While OSHA states that the level of toxins that workers are being exposed to fall within non-hazardous limits they continue to keep a close eye on the situation.

My Two Cents:

The oil spill cleanup poses serious risks of long-term injury to workers. There were over 1,800 workers’ compensation claims filed as a result of the Exxon/Valdez spill. The Gulf spill will probably result in many more workers’ comp claims being filed considering that there are already twice as many workers involved in the cleanup than were used during the Alaskan spill. The law that governs these claims will differ depending upon where the worker is injured.

If the worker is injured on shore he will be covered by the state’s workers’ compensation laws in most cases (there are a few limited situations, such as working on a dock or pier, where a worker will be covered by the federal Longshore and Harbor Workers’ Compensation Act). Employees who are injured on a seafaring vessel will be covered by the Jones Act. The Workers Comp Kit Blog  is a good resource for some basic facts about this law. Both workers’ compensation laws and the Jones Act require the employer to pay for medical costs resulting from the injury. Unlike workers’ compensation laws, under the Jones Act the employer will not be required to pay for any resulting disability to the employee once he has reached maximum medical improvement. Under the Jones Act, however, the employee will be able to file a lawsuit against his employer for future lost wages and punitive damages. In order for an employee to prevail in this type of lawsuit he must show either that the employer was negligent or that the vessel was not seaworthy.

Additionally, it is possible that these injured workers may be able to get relief from federal plans.  The Oil Pollution Act of 1990 (signed in response to the Exxon/Valdez spill) allows the government to use the Oil Spill Liability Trust Fund (OSLTF) for a number of things, including payment for uncompensated removal costs and damages.  It is not entirely clear whether this fund could be used to aid injured workers.  The new federal healthcare bill contains a provision that expands Medicare to cover victims of “environmental health hazards.”  This provision is another avenue that may be potentially used to compensate injured oil spill workers.

Employers must be diligent in educating employees and requiring the use of protective equipment. If the employees then choose to violate the safety rules, they will do so at their own peril.

The Alabama Workers Comp Blawg is designed to keep readers up to date on legislation, case law, and cutting edge issues regarding workers' compensation in Alabama and the nation.            www.alabamaworkerscompblawg.com

Equity Group – Alabama Division d/b/a Keystone Foods v. Rodney DeWayne Harris:

On June 4, 2010, the Alabama Court of Civil Appeals released this opinion wherein it affirmed the Trial Court’s finding of notice and causation but reversed the Court’s decision to require the employer to provide a panel of four. In addition, the Court of Appeals disagreed with the employer’s argument that past, present, and future medical benefits are not owed when the 5 day notice requirement is not satisfied and, instead, interpreted the applicable Code provision to state only that the medical benefits incurred prior to actual notice being given are not owed.

Interestingly, the evidence at trial revealed that the employee was allegedly injured on a Friday just 15 minutes before he was to leave for a week long vacation. It was undisputed that he provided no notice to his employer at that time. The employee did not seek medical attention until the following Monday. In the medical records it stated that the employee was injured the day before (2 days after alleged accident). The employee returned to the same doctors the following Sunday because he fell due to alleged numbness in his leg that he attributed to his original injury. No work accident was mentioned in the records from either visit and the doctors did not recall the employee stating that his injuries were work related. Although the employee’s wife testified that she notified the employer the next day about the alleged work accident, the employer’s witnesses all testified this was simply not the case.

The employee next went to a neurosurgeon of his own choosing. In the neurosurgeon’s records, it was noted that the employee did not relate a job injury but rather felt his back pop when he got out of bed after a vacation. The neurosurgeon further testified that the employee told him that he was not injured at work. Of course, the employee disputed the good doctor’s testimony.

Approximately five weeks after the alleged accident, the employee filed a disability claim with his union. It was denied and he was at that time told he needed to file a workers’ compensation claim. Although the employee was subsequently issued a workers’ compensation prescription drug card, the employer asserted that it was erroneously issued.

Despite the lack of any mention of a work injury in the medical records and the testimony of the employee’s own doctor, the Trial Judge found that notice was proper and that the employee proved both medical and legal causation. The Court of Appeals had no choice but to affirm since it could not re-weigh the evidence and the Judge obviously assigned more weight to the testimony of the wife. In addition, the issuance of the prescription drug card supported the employee’s case regarding notice. Further, an accident report completed by the employer two months after the alleged accident stated that the employee claimed a work injury. Finally, it was noted that the employee was deaf which may have caused some communication problems with his physicians despite the fact that his wife was always present.

The Court of Appeals reversed the Trial Court’s order so far as it required the employer to furnish a panel of four. Although by allegedly denying the claim, the employer relinquished its right to choose the initial doctor, the employee is stuck with the doctor of his own choosing until such time that he becomes dissatisfied and requests a panel of four.

My Two Cents:

I think most employers and defense attorneys would feel fairly comfortable going to trial with a text book red flag injury and testimony from a doctor of the employee’s own choosing stating affirmatively that the employee admitted his injuries were not job related. You just never know what will happen if you proceed to trial. That is why most cases are resolved via settlement.

Jackson v. Sedgwick Claims Management Services, Inc., No. 09-11529 (E.D. Mich. 03/11/10):