Alabama Workers Comp Blawg

Fish Nelson :: Attorneys at Law

Monday, April 13, 2015

Misuse Of The Term Aggravation Causes Huge Overpayments In Workers' Compensation

The below article is re-published with permission from its author, John Geaney. It was originally published on April 9, 2015 on Mr. Geaney’s New Jersey Workers’ Comp Blog (http://njworkerscompblog.com).

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SCENARIO ONE: An employee has a preexisting arthritic knee condition that his personal physician says will require imminent knee replacement. Three months later this employee steps off a truck at work feeling pain in the knee. He reports the incident to his employer, who sends him for treatment. The doctor orders an MRI, stating that he feels that the employee needs a total knee replacement. The doctor writes that this incident "aggravated" the prior knee condition.

SCENARIO TWO: An employee has suffered with severe back pain for many years, treating unsuccessfully with many surgeons and has been informed she will have to live with the pain or get surgery. The employee is pushing a cart at work one day and feels pain in her back. She sees a workers’ compensation doctor, who orders an MRI showing extensive spondylolisthesis. The doctor states that this incident "aggravated the back condition." The employee now agrees to undergo fusion surgery.

Should the employer be paying tens of thousands of dollars for surgery and eventual permanency in these two scenarios? These are very common occurrences, but is there a common understanding of the term "aggravation?" Does it mean one thing to doctors and another thing to workers’ compensation practitioners? In this writer’s experience, doctors often mean something completely different than attorneys. One thing is clear: if the treating doctor says that the work incident aggravated a prior condition, the Judge of Compensation will require the employer to pay for surgery and for permanency.

So the ultimate answer in both scenarios above depends on what the legal definition of aggravation is. In both cases, the employee had been told of the need for surgery before any incident at work. If the authorized doctor means that the work activity simply caused "more pain" on a temporary basis with no real change in the underlying condition, then no, the employer should not be paying for surgery or permanency. Nonetheless, employers pay for these kinds of surgeries over and over again because the treating doctor says that work "aggravated" the prior condition.  

There are two main reasons that workers’ compensation costs are overpaid in New Jersey, and for that matter, in most states: one is the lack of understanding of the legal definition of "aggravation," and the other is the failure to take a detailed past medical history. A good explanation of what aggravation means comes from the case of Peterson v. Hermann Forwarding Co., 267 N.J. Super. 493 (App. Div. 1993),certif. denied, 135 N.J. 304 (1994).

In the Peterson case, the employee suffered a traumatic accident on October 1, 1982 getting out of his truck. He missed a month of work and could no longer return to work with his company, which had ceased operations. He obtained employment four months later with another trucking company. He drove back and forth to New Jersey, stating that "empty trailer bouncing" caused his right leg to get numb. He said he had to bend down in a squat position, which hurt his back. He also said his neck would stiffen up as well. He left this company, Mid-Florida, because the hours were too long. Then he worked for four more trucking companies. The last trucking company he worked for was Yellow Freight, where he worked only six days. He ultimately found that the pain levels were intolerable, so he stopped working in June 1984 and never worked again. He brought claims against all the trucking companies, and the Judge of Compensation found that the last employer was responsible for total disability because the work there aggravated his prior back condition.

On appeal the Appellate Division reversed, stating that all the areas of the body which hurt petitioner while working in these subsequent employments were the same areas he originally injured in 1982. "Clearly, because of his pre-existing conditions, petitioner’s work activities at the subsequent employment caused him to suffer greater pain than he would have experienced had he remained sedentary. However, an employer is not required to compensate an employee for pain. There must be proof of a work related injury or condition resulting in permanent disability."

The court also added the following: "While the work efforts of petitioner in this case may be considered strenuous by some, they were not unusual for petitioner’s line of work. It was what he would have been able to do but for the October 1982 accident." Another case which clarifies the need for objective evidence of worsening to satisfy the definition of aggravation is Kozinsky v. Edison Products Co., 222 N.J.Super. 530 (App. Div. 1988).

While Peterson was an occupational aggravation case, the logic that the court employed is important to appreciate. The pain petitioner was complaining of at trial was the pain he had experienced all along, and there had been objective change over the years. N.J.S.A. 34:15-36 only requires an employer to pay partial permanent disability if the work injury produces objective changes which either cause a lessening to a material degree of working ability or a substantial impairment of non-work activities.

Practitioners should ask doctors not whether the work conditions "aggravated" the prior condition but whether there is any objective change from the prior condition -- or just a temporary increase in pain. In other words, if one compares the prior MRI with the new MRI, and there is no change, there is no aggravation. There may be some temporary increase in pain, but pain is subjective. If there is a difference in the MRI results showing a worsening of the condition, then the employment activities will be found to have aggravated the prior condition.

As a practical matter, anyone who has a long-standing painful back or knee condition knows that almost any physical activity can cause a temporary increase in pain. For a person with an advanced arthritic knee condition, even the act of walking can cause swelling and pain. But a temporary increase in pain is not aggravation under the law. Employers end up picking up enormous medical and indemnity costs mainly because treating doctors misunderstand the legal definition of aggravation, causing general health care costs to be passed through workers’ compensation.

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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.

Thursday, April 09, 2015

Alabama Workers' Compensation Reform Bill Not Likely to Pass

On April 2, 2015, Alabama Republican State Senators Del Marsh and Cam Ward submitted Senate Bill 330, which proposes drastic reforms to The Alabama Workers’ Compensation Act. If the legislature passes SB-330 and Governor Bentley signs it into law, it would be the biggest change to the Act since the 1992 Amendments. The major proposed changes are outlined below.

MY TWO CENTS:

The last time we saw this many proposed changes to the Alabama Workers’ Compensation Act was on December 9, 2011, when State Senator Arthur Orr (R-Decatur) pre-filed a bill (SB77) for the 2012 legislative session. That bill never made it out of the Senate Business and Labor Committee. I would not expect this bill to make it out of committee either. There are simply too many controversial suggested revisions lumped together into one bill for there to be any chance of success. In order for such broad sweeping change to take place, it will be necessary to form a committee where all interested parties are represented and then hammer out a bill that is mutually acceptable before it is filed. That is the process that allowed the 1992 amendments to become law. 

If SB-330 becomes law, § 25-5-11.1 of the Act would be amended to make it illegal for an employer to terminate an employee where the "substantial motivating factor" for the termination is that the employee instituted or maintained a workers’ compensation claim. Under the current law, the employee must prove that filing a workers’ compensation claim is the sole reason for the termination.

MY TWO CENTS:

Alabama is an employment at will state. This means you can fire someone for a good reason, a bad reason, or no reason at all. We currently have an exception to that rule in § 25-5-11.1 when the employee can prove that he or she was terminated solely for filing a workers’ compensation claim or filing a written notice of a safety rule. This means that if the employer had another valid reason for terminating the employee, then it is not considered to be a wrongful termination. If the employee can demonstrate that the other reason is a mere pretext, then it does not qualify as another valid reason and it would still be considered wrongful termination. To allow the new standard proposed above would have the effect of forcing employers to retain bad employees. It would also likely encourage more misconduct on the part of injured employees because of their new termination proof status.   

 

§ 25-5-56 would be amended to provide a presumption that any settlement would be in the best interest of the employee, so long as the employee is represented by a licensed Alabama attorney. Additionally, any proposed settlement rejected by the Court would be reassigned to another judge and any statements or arguments made by the parties, witnesses or judge at the settlement hearing where the settlement was not approved would not be admissible in subsequent proceedings. Additionally, §25-5-56 would provide that advanced payments or payments of medical benefits of any kind shall not be considered an admission against interest or admission of liability.

MY TWO CENTS:

This is a good idea and would likely have unanimous support. The judge reassignment and confidentiality aspect of the bill was actually addressed by a committee appointed by then presiding judge of Jefferson County, Scott Vowell over 10 years ago. Both employee and employer interests agreed that it was a good idea and Judge Vowell adopted it as a local rule. The advanced payments aspect of the bill is already addressed by the Alabama Rules of Evidence. Evidence of such payments is already not admissible.

 

§ 25-5-57 would be substantially amended by increasing the number of weeks for permanent partial disability (PPD) benefits from 300 to 400 weeks. Additionally, permanent total disability (PTD) benefits would be cut off either after 500 weeks or after the employee attains 75 years of age – whichever is longer. §25-5-68 would be amended to completely remove the $220.00 per week statutory PPD cap, replacing it with a cap equal to 80% of the state’s average weekly wage or 100% of the employee’s pre-injury average weekly wage – whichever is less. To put that in perspective, an employee earning $1,000 per week who suffers a back injury resulting in a 50% permanent partial disability would be entitled to as much as $150,000. Under the current law, the employee would be limited to a maximum of $66,000.

MY TWO CENTS:

The $220 cap is low and probably needs to be bumped up at least to some degree. However, there needs to be a conversation between employee and employer interests on how best to effectuate such change. Simply introducing a bill proposing such drastic change does nothing more than make such change impossible during this legislative session. The proposed caps on PTD are a good start on how to negotiate such change but there needs to be more discussion. 

 

§ 25-5-77 would be amended to provide that if an employee is dissatisfied with the initial treating physician selected by the employer and further treatment is required, the employee may select a new physician from a panel of six physicians selected by the employer (currently it is four). Additionally, § 25-5-77 would be amended to provide that if five years pass during which time an injured employee receives no medical treatment by his or her authorized treating physician for the injury, there would be a rebuttable presumption that any subsequent medical treatment would be unrelated to the injury. Additionally, after seven years without such treatment, there would be a conclusive presumption that the employee would not be entitled to any further medical treatment – with previously implanted medical or prosthetic devices being the sole exception. There would also be new provisions providing for pain management treatment and requirements that an injured worker receiving controlled substances sign a formal written agreement with the pain management physician. Under the proposed law, if the employee violates the agreement, her or she may lose his or her right to further pain management treatment. Another new provision would allow employers to select the pharmacy where injured workers’ get there prescriptions filled.

MY TWO CENTS:

It is hard enough to populate a panel of four in some of the more rural areas of Alabama. Requiring a panel of six could become impossible in some situations. Especially when you have an employee that gets kicked out of pain management or dismissed from the care of a treating physician for bad or inappropriate behavior. The five and seven year cut off periods sound nice but the reality is that we will see requests to return to the doctor every 4 years even when treatment is not needed. The pain management cut off aspect of the bill sounds nice except that it says may rather than shall. This means that it has absolutely no meat to it and renders the employer powerless to cut benefits when the employee is getting kicked out of pain management.   

 

§ 25-5-88 would be amended to provide that the Courts must enter judgment within ninety (90) days of any workers’ compensation trial. Additionally, the bill would increase the maximum amount of attorney’s fees an injured worker’s attorney can charge, from 15% to 25%. It would also provide that a court can award up to 25% of the reasonable value of medical services, if the legal services provided for the injured worker are for the procurement of medical treatment previously denied.

MY TWO CENTS:

I have never understood why attorneys are limited to 15% on the award of indemnity benefits. I think that raising it is probably a good idea. However allowing a fee representing 25% of the reasonable value of denied medical services is a bad idea. If an employer exercised its right to deny a back injury claim and the judge subsequently ordered that it was compensable, the fee on the medical alone could end up being higher that the contingency fee on the indemnity award. Such an award would be more in the nature of a penalty and have the effect of scaring employers into paying for treatment that may not be owed.

 

§ 25-5-110 would provide compensation for psychological conditions which result from the hazards of the employment in excess of those ordinarily incident to employment in general, even if the psychological condition was not precipitated by a physical injury to the body.

MY TWO CENTS:

Alabama is a physical-mental state. This means you have to have a physical injury before you can successfully claim any type of psych condition. You do not have to have a significant physical injury but you have to have been physically injured at least to some degree. To allow employees to claim psych without the physical injury requirement would open the flood gates of psych claims.

 

§ 25-5-293 would be amended to require that utilization reviews be conducted by a board certified physician of the same specialty, licensed in Alabama. 

MY TWO CENTS:

This would not be a terrible idea if it also included a presumption that such an opinion by a UR doctor would be considered to carry the same weight as the authorized treating physician. As it stands now, Alabama judges almost always side with the treating physician so it is unclear what this part of the bill is trying to accomplish.

 

Changes to § 25-5-311 would amend the composition of the Workers’ Compensation Medical Services Board. Instead of five licensed Alabama physicians, the Board would be comprised of two claims professionals chosen by the Alabama Workers’ Compensation Organization (AWCO), two employer representatives chosen by the Alabama Counsel of Association of Workers’ Compensation Self-Insureds’ Fund, two physicians and two provider practice managers chosen by the Medical Association of the State of Alabama, four hospital representatives chosen by the Alabama Hospital Association, a physical therapist chosen by the Physical Therapist Association of Alabama, two "employee representatives", chosen by the Alabama Association for Justice (the trial lawyers), and one judge chosen by the Alabama State Bar. Medical providers, other than hospitals, would be reimbursed at a rate equal to an amount 7.5 % greater than the rate customarily paid by the largest health care service plan in the state. Hospitals would be entitled to a maximum reimbursement rate of 1.2 times the Medicare National Base Rate multiplied by the Diagnosis-Related Group Weight Value as published by Medicare. Brand name drugs would be reimbursed at a rate equal to the average wholesale price, plus $5.00. Generic drugs would be reimbursed at 30% less than the wholesale price, plus $5.00. Additionally, injured workers not be allowed to have the medication prescriptions filled in any facility or business establishment in which the prescribing physician has a financial interest.

MY TWO CENTS:

This probably gives us a good road map on how to form a committee that can actually effectuate change that is mutually acceptable to all. Without all interested parties at the table negotiating a true compromise, nothing is likely to ever be accomplished. For an example of how it was done in 1992, I suggest that you read the first four paragraphs of Tuscaloosa attorney Steve Ford’s article New Alabama Workers’ Compensation Act published in The Alabama Lawyer in September of 1992. If you would like a copy, please shoot me an e-mail and I would be more than happy to send you one.  

 

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ABOUT THE AUTHORS

The summary of SB-330 was written by Charley Drummond and the My Two Cents portion was written by Mike Fish. Both are attorneys at Fish Nelson & Holden, LLC, a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. The firm is a member of The National Workers’ Compensation Defense Network (NWCDN), which is a national network of reputable law firms organized to provide employers and insurers access to quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the authors at mfish@fishnelson.com, cdrummond@fishnelson.com, or (205) 332-3430.

 

 

 

 

 

 

 

 

 

 

Monday, March 30, 2015

Alabama Court Reverses Award of Attorney Fees Where Utilization Review Properly Followed

On March 20, 2015, the Alabama Court of Civil Appeals released its opinion in Good Hope Contracting Company, Inc. v. McCall wherein it upheld an order compelling medical treatment but reversed an award of attorney’s fees.  At the trial court level, evidence was presented that the authorized pain management doctor recommended a steroid injection.  The request was sent to utilization review (UR) and it was determined not to be medically necessary by an orthopedic surgeon with a subspecialty in pain management.  Based on the UR doctor’s opinion, the procedure was denied.  The employee then filed a motion to compel the procedure and a motion for contempt alleging that proper UR protocol was not followed.  Specifically, it was alleged that the orthopedic surgeon was not a peer of the authorized pain management doctor because managing pain was not is specialty.  The trial court granted the motion to compel the injection but declined to grant to the motion for contempt.  Despite this fact, the Court still awarded $18,375.00 in attorney’s fees.

 

On appeal, the Alabama Court of Civil Appeals upheld everything but the award of attorney’s fees.  In order for such fees to be awards, the employee would have needed to be successful on his motion for contempt.

 

My Two Cents:

 

In the Unites States, attorney’s fees are not typically awarded to the prevailing party absent a contractual obligation or unless the prevailing party can demonstrate willful and contumacious behavior on the part of the opposing party.  This is known as the American Rule.  In this case, the Court of Civil Appeals determined that, because proper UR procedures were followed, the employer had a legitimate, debatable and arguable basis for its denial and, therefore, could not be held in contempt of court.  Had the Court of Civil Appeals allowed the award of attorney’s fees to stand in this case, it would have resulted in similar motions being filed every time employers exercised their lawful right to deny medically unnecessary treatment in a permissible manner.

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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.

 

 

Monday, March 02, 2015

Alabama Court of Appeals Reverses Trial Courts Order that Employer Pay for Knee Replacement

On February 27, 2015, the Alabama Court of Appeals released its decision in Ex parte Fairhope Health & Rehab, LLC. The facts of the case were as follows: The plaintiff, Lula Durgin worked as a nursing home activities director for Fairhope Health & Rehab. One day, while preparing to take a group of nursing home residents to the local Wal-Mart, she climbed into the driver’s seat of her employer’s van. Durgin alleged that in February 2012, she felt pain in her right knee as she went to sit down in the seat of the van. Durgin was sent to a local orthopaedist, who diagnosed her with a torn meniscus and pre-existing arthritis. The orthopaedist performed surgery to repair the torn meniscus, and released Durgin to return to work without restrictions. Durgin returned to work, but several months after surgery she continued to have pain in her right knee. Durgin’s orthopedist related the continued pain to pre-existing arthritis. Durgin also contended that her knee caused her to fall several times, and on one occasion, she had sustained a back injury due to a fall at home. Another physician determined that Durgin needed to undergo a right knee total replacement surgery. Durgin contended that Fairhope Health & Rehab was responsible for the total knee replacement surgery, and that her alleged back injury was also compensable as the direct and natural result of her on-the-job-knee injury. Fairhope Health & Rehab asserted that Durgin’s alleged injuries did not occur in or arise out of her employment, and that Durgin’s need for a right knee replacement was not related to the alleged accident. Fairhope Health & Rehab also denied that Durgin had any compensable back injury and further asserted that her alleged back problems were the result of a prior accident that had occurred several years before she was hired.  

Durgin filed suit, and the parties took the deposition of the orthopedist who had performed the meniscus repair. During his deposition, Durgin’s orthopedist reviewed medical records and MRIs taken of both Durgin’s knees in 2007, five years prior to the February 2012 incident. Those MRIs showed that the menisci in both of Durgin’s knees were shredded and severely torn. At that time, her doctor had recommended that she undergo knee replacement procedures of both knees. While Durgin elected to undergo a total knee replacement in her left knee, she had never had surgery to repair the torn meniscus or to replace the right knee joint. Despite this, she had been able to perform all of the regular duties of her job at Fairhope Health & Rehab prior to her alleged accident. Durgin’s orthopedist stated that while the alleged incident in February 2012 may have exacerbated her already torn meniscus, the surgery he had performed restored her knee to a condition that was even better than it had been prior to the February 2012 incident. The orthopedist also testified that while Durgin continued to complain of pain in her knee, it was solely the result of the pre-existing arthritis in her "terrible looking knee", and not the February 2012 incident. Following the orthopedist’s deposition, the case went to trial on three issues: (1) whether Durgin’s alleged meniscus tear occurred in and arose out of her employment; (2) whether Durgin’s need for a knee replacement surgery was related to the February 2012 incident; and (3) whether Durgin’s alleged back injury was compensable.

Durgin testified on her own behalf at trial, and also called one of her co-workers as a witness to testify that she had been able to perform her regular job duties prior to the February 2012 incident. The deposition and medical records of Durgin’s treating physician were entered into evidence, as were medical records from the doctor who had performed the left knee replacement surgery in 2008. Despite the fact that no other evidence was presented at trial, the trial court found that the February 2012 incident exacerbated or aggravated Durgin’s pre-existing meniscus tear, and that Fairhope Health & Rehab was responsible for Durgin’s right knee replacement procedure. The trial court found that Durgin’s alleged back injury was not compensable. Fairhope Health & Rehab appealed the findings that the torn meniscus and need for the knee replacement were related to Durgin’s February 2012 incident.

The Alabama Court of Appeals held that since the trial court did not determine the specific amount of temporary total or permanent partial disability benefits to which Durgin was entitled, it was not a final appealable Order. However, the Court of Appeals evaluated the employer’s appeal as a Petition for Writ of Mandamus instead. The Court of Appeals held that the Trial Court’s finding that Durgin sustained an accident occurring in and arising out of her employment that aggravated her already torn meniscus was supported by substantial evidence. However, since the only evidence presented on the issue of medical causation (the treating physician’s deposition testimony and medical records) established that Durgin’s need for a knee replacement was not related to her alleged accident, the Court of Appeals held that Durgin had failed to meet her burden of proof. As a result, it issued a Writ of Mandamus to the Trial Court, directing it to set aside the portion of the Order requiring Fairhope Health & Rehab to pay for the prescribed right knee replacement surgery.

Two Judges dissented, stating that the Trial Court’s Order was final for purposes of Appeal, since all of the issues submitted to the trial court had been decided. Despite their dissent on the procedural aspects of the case, those two judges concurred with the end result.

MY TWO CENTS:

If allowed to stand, the trial court’s ruling would have required the employer to provide medical treatment that, according to Durgin’s treating physicians, was unrelated to the alleged accident. In his dissent, Judge Moore stated, "the trial court could have reached its conclusion only by impermissibly deciding matters lying exclusively within the peculiar knowledge of medical experts." This was the same position taken by Fairhope Health & Rehab. While Alabama law has long held that expert medical testimony is not necessary to establish medical causation in a workers’ compensation case, there was expert medical testimony in this case, and it firmly supported Fairhope Health & Rehab’s position.

Also important to note is that the Court of Appeals cited the case of Alamo v. PCH Hotels & Resorts, in finding that Fairhope Health & Rehab was not responsible for Durgin’s knee replacement surgery because the alleged accident only temporarily aggravated her underlying arthritis. In doing so, I believe the Court of Appeals differentiated this situation from the one presented in Madison Academy v. Hanvey, reiterating that the employer is not liable for any continuing symptoms that result solely from a pre-existing condition.

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This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.

ABOUT THE AUTHOR:

Friday, February 27, 2015

A Horse is a Horse of Course, of Course, but in Alabama, Riding one may not be Considered in the Course

On February 27, 2015, the Alabama Court of Civil Appeals released its opinion in Dana Louise Pollock v. Girl Scouts of Southern Alabama, Inc. wherein it considered a claimed injury arising out of a horse riding accident. At the trial court level, the judge was presented with evidence that the injured employee, the business manager of a 6 week summer camp, voluntarily participated in a horseback ride at the end of the camp. The ride was for staff members only and participation was not required or encouraged. In fact, when the employee asked her supervisor for permission to participate, she was actually discouraged because of the existence of prior back injuries. During the ride, the horse bolted unexpectedly causing injury to the employee’s back. The employee contended that the injury was work related because it happened during work hours, during an event that occurs every year at the end of the summer session, it was on her employer’s property, and she had her supervisor’s permission. The employer file a motion for summary judgment asserting that the accident did not arise out of or in the course of her employment. The trial court granted the motion and the employee appealed.

The Court of Civil Appeals agreed with the trial court noting that the horseback ride was voluntary and the employer did not derive any benefit from the activity.

My Two Cents:

Whether or not an employer derives a benefit from a particular activity is an important, and sometimes overlooked, consideration when looking at the "arising out of" portion of the two part causation test. Just because you are at work when an accident occurs does not mean that the accident is work related. Simply being at work might satisfy the "in the course of" portion of the test but not both parts. In this case, it was determined that there was not substantial evidence that either part of the two part test could be proven.

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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.

Monday, February 16, 2015

Alabama Supreme Court Reverses Court of Appeals and Reinstates Permanent Total Disability Award

 

On January 30, 2015, the Supreme Court of Alabama reversed the Alabama Court of Appeals’ ruling in Madison Academy, Inc. v. Hanvey.  The Supreme Court granted the employee’s Petition for Writ of Certiorari to review whether the Court of Civil Appeals erred in reversing the trial court’s judgment awarding the employe permanent and total disability benefits. 

The trial court had found that in the absence of the exposure to chemical fumes at work, the employee would not have suffered the disability at the time, in the manner, or to degree that she did. The trial court had also found that the employee’s pre-existing myasthenia gravis was worsened by her exposure to chemicals at work, and that as a result of that exposure, she was permanently and totally disabled. The Supreme Court noted that a trial court’s findings of fact must be affirmed on appeal if they are supported by substantial evidence. The Supreme Court also noted that the appellate courts will not overturn the trial court’s findings in regard to the extent of disability if those findings are supported by substantial evidence. The Supreme Court held that the trial court’s findings were supported, and therefore could not be overturned.

MY TWO CENTS

Although the Supreme Court’s ruling reversed the Court of Appeals and upheld the trial court’s findings, it did not explicitly overrule the Court of Appeals’ rejection of the notion that "no pre-existing condition is deemed to exist if the employee was able to perform the work of an uninjured person at the time of the injury." Instead, the Supreme Court held that the Court of Appeals cannot re-weigh the evidence, and that the factual findings of the trial court must be upheld on appeal if there is substantial evidence to support those findings, even when there is also substantial evidence that support contrary findings.

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ABOUT THE AUTHOR

This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.

Tuesday, February 10, 2015

Alabama Governor Signs HB-107, Raising Maximum Burial Expense

As previously reported here, the Alabama Legislature passed HB-107 last year, increasing the maximum burial expenses an employer may be liable for from $3,000 to $6,500. Governor Bentley recently signed HB-107 into law. As a result, employers are required to pay up to a maximum of $6,500 in burial expenses associated with the death of any employee which results from an accident occurring in and arising out of the employment.

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ABOUT THE AUTHOR

This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.

Tuesday, January 27, 2015

It is Time to Join the Alabama Workers Compensation Organization

Do not forget to submit your 2015 Membership Application.@Applications must be postmarked by February 27th in order to attend the Spring Conference at no charge. If you want to pay your membership fee via credit card, simply indicate that fact on the application and you will be contacted by the AWCO treasurer. See our 1/6/15 blog post (below) for more information on how to join.

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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.

 

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Tuesday, January 06, 2015

The Alabama Workers' Compensation Organization...Membership has its Privileges

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, 2015.  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.

If you have any questions about the AWCO, membership, the Spring Conference, or simply need an application for membership, feel free to call or e-mail Mike Fish (contact info below).

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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.

 

 

Wednesday, December 31, 2014

2015 Alabama Mileage Reimbursement Rate

Effective January 1, 2015, the standard mileage reimbursement rate for Alabama will be 57.5 cents per mile.

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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.

If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at jholden@fishnelson.com or 205-332-1428.

Monday, December 29, 2014

Alabama Court Finds Accident on the Way to Treatment for Injury Compensable

Flexicrew Staffing, Inc. v. Champion

Released December 12, 2014

At the trial level the Baldwin County Circuit Court was presented with evidence related to whether of not Champion’s claim based on a car accident was compensable. The Trial Court found the accident and injuries compensable based on evidence that was for the most part undisputed.

On November 27, 2012 Champion was working at the construction site he was assigned to and cut his leg while using a grinder. There is no dispute that this injury was compensable. Champion, despite his supervisor’s (supervisor on the construction site) advice, did not feel he need treatment for the laceration. Champion was provided first-aid and he returned to work. The on-site supervisor contacted Flexicrew and reported the accident. After working for a little while Champion decided he could not work and the supervisor told him Flexicrew instructed Champion to go to Industrial Medical Center (IMC) in Daphne for treatment of the cut. Champion felt he could drive himself and left the site in his own vehicle. On the way Champion began to feel nauseated and light-headed. Flexicrew contacted Champion while he was in route and offered to send him to a clinic closer to the site but Champion declined and continued to Daphne. After the call Champion drove through a red light and collided with another vehicle. This accident resulted in a broken neck, broken leg and broken ankle. Champion did not recall the accident but believed that he passed out due to blood loss. Flexicrew presented evidence indicating Champion’s blood loss was insufficient to cause him to pass out. The Trial Court found in Champion’s favor and award medical benefits and temporary total disability benefits. As a result of ordering both, the ruling was considered a final appealable order from which Flexicrew filed the subject appeal.

The Alabama Court of Civil Appeals considered this a question of first impression, whether the injuries resulting from the car accident arose out of the course of Champions employment.

Flexicrew argued that the injuries were not compensable because they did not arise out of and in the course of Champion’s employment. They took the position that the car accident was not a natural and direct consequence of the compensable leg injury but at trial the attorney for Flexicrew admitted he had no law to support his contention. Champion argued that the injuries were compensable because in he as traveling to IMC in Daphne, as instructed, to receive medical treatment for a compensable injury.

The Alabama Court of Civil Appeals looked to other jurisdictions for case law on this issue. They cited Taylor v. Centex Construction Co., a 1963 Kansas decision. Taylor stated that an injury sustained while traveling to receive medical treatment for a compensable injury arose out of the course of employment. The rationale was the employer is under a duty to provide treatment and the employee is under a duty to submit to treatment or lose benefits during the refusal to submit to treatment. Professor Larson addressed the Taylor decision and opined that based on the duty to provide and duty to submit to medical treatment, it is then implied that it is part of the employment contract, and injuries during the trip to receive medical treatment pursuant to the statute and contractual agreement are work related. 1 Arthur Larson & Lex k. Larson, Larson’s Workers’ Compensaiton Law § 10.07 (2011). Larson also pointed out that the majority of jurisdictions has ruled the same way. Id. (Nebraska, South Carolina, Oregon, New York, Pennsylvania, Maine, Florida and Minnesota). Larson pointed out that some states had rejected the theory that injuries sustained while traveling to received medical treatment did arise out of the course of employment. Id. (Wyoming, Michigan, Oklahoma, Indiana and Idaho).

The Alabama Court of Civil Appeals agreed with the majority of jurisdictions finding that injuries sustained while traveling to see an employer-designated physician for initial treatment of a work related injury are compensable under the Act. The Court stated that, as in Kansas, the Alabama Workers’ Compensation Act creates a duty to provide and submit to medical treatment. Therefore, injuries sustained while traveling to receive initial medical care as directed by the employer for a work related injury are compensable. The Court pointed out that there was no evidence that Champion had deviated from the direct route to IMC but if he had it might have affected the compensability of the injuries. 

MY TWO CENTS

In this case, the Court refers to arising out of the course of employment and removes the and, which the Supreme Court stated in Ex parte Patton was in the statute and required an employee to meet both parts, arising out of and in the course of, to be compensable. The Court’s analysis pointed to the fact that by instructing Champion to go to IMC for the laceration, the parties reasonably contemplated that Champion would be in the car where he was and when he was to secure treatment pursuant to the Act, meeting the in the course of part of the two part test. Then while the car accident was unexplained, circumstantial evidence presented by Champion allowed the Court to infer Champion had an increased risk of being involved in a car accident because he was losing blood from the laceration, meeting the arising out of part of the two part test.

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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.

If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at jholden@fishnelson.com or 205-332-1428.

Sunday, November 23, 2014

Recent Tenth Circuit Decision Could Have Ramifications in Workers Compensation Retaliatory Discharge Cases

The Tenth Circuit Court of Appeals recently released its decision in the case of Green v. Donahoe, No. 13-1096, 2014 U.S. App. LEXIS 14290, 2014 WL 370823 (10th Cir. July 28, 2014). In this employment discrimination case, the Court held that the limitations period for a claim for constructive discharge begins running on the date of the employer’s last misconduct and not at the time the employee actually resigns.

Marvin Green, a Postmaster, sued the Postmaster General, Patrick Donahoe, claiming that the United States Postal Service (USPS) retaliated against him for making employment discrimination claims. Green, who described himself as a "black American", had been a Postmaster for fourteen years. In early 2008, Green was passed over for a promotion and the job was given to a Hispanic person. Green filed a complaint with the EEOC in August 2008, alleging racial discrimination. In May 2009, Green filed another EEO charge, alleging that his supervisor had threatened, demeaned, and harassed him in retaliation for filing the August 2008 EEO charge. In November 2009, an internal investigation revealed that Green was guilty of misconduct in the performance of his job, and he was placed in "off-duty status immediately". On December 16, 2009, Green reached a settlement agreement with the USPS whereby he would give up his position as Postmaster, receive accrued sick pay until March 31, 2010, and then retire. On April 23, 2010, Green filed another EEO charge alleging constructive termination for his forced retirement, but the EEOC dismissed it because Green failed to file it within 45 days of the December 16, 2009 settlement agreement. Green then filed his lawsuit in district court, arguing that he had 45 days from his resignation date to file the EEO charge. However, the trial court dismissed the case, holding that the 45 day limitations period started on December 16, 2009 when Green and USPS reached their settlement agreement.

So what does this have to do with workers’ compensation retaliatory discharge cases? The Green v. Donahoe decision should serve as guidance for state courts in workers’ compensation retaliatory discharge cases in regard to the statue of limitations. Many states have enacted statutes which explicitly prohibit an employer from terminating an employee for making a claim for workers’ compensation benefits. While there are a few states that do not recognize a claim for retaliatory discharge in the workers’ compensation context, most states recognize such a claim under common law. Generally, the employee must prove that the employer actually terminated his or her employment because the employee sought workers’ compensation benefits. However, many states’ courts, in reliance on Jurgens v. EEOC, 903 F.2d 386 (5th Cir. 1990), have held that a claim for retaliatory discharge will lie when the employer deliberately makes the employee’s working conditions so intolerable that the employee is forced into an involuntary resignation. The holding in Green v. Donahoe suggests that the statute of limitations in constructive retaliatory discharge cases should be calculated from the date of the employer’s last misconduct, which in many cases is well before the actual date of the employee’s "involuntary resignation". Should states decide to follow this holding and apply this reasoning in workers’ compensation retaliatory discharge cases, many claims may be barred by the statute of limitations. This is particularly significant in the workers’ compensation arena, since an employee’s "constructive discharge" often follows a period of several months or even years of disability where the employee is out of work due to the underlying injury, returns to work, and then resigns. In light of this ruling, attorneys who handle workers’ compensation retaliatory discharge cases should be particularly conscientious of the time-line of events leading to the alleged constructive discharge. 

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ABOUT THE AUTHOR

This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.

 

Monday, November 17, 2014

Alabama Court of Civil Appeals Considers Jurisdiction Issue where Alabama Resident is Injured in Texas

Similar to the decision which was discussed on our blawg on November 7, 2014, the Court of Civil Appeals again held in Ex Parte Lost River Oilfield Services, LLC, that out-of-state injuries will only be compensated by Alabama’s Act when specific conditions are met. Jurisdiction will not exist over a claim for workers’ compensation benefits for employment which is principally located in another state unless the employee shows that the workers’ compensation laws of that state are not applicable to the employer.

Kenneth Bailey, an Alabama resident, filed a Complaint for workers’ compensation benefits under the Alabama Workers’ Compensation Act in Mobile County, Alabama, for an injury he suffered while working for Lost River Oilfield Services in Texas. In his Complaint, Bailey specifically cited Ala. Code § 25-5-35(d)(2), which provides that employees are entitled to benefits under the Act for injuries sustained out-of-state when the employee was working under a contract of hire made in Alabama in employment not localized in any state. Bailey provided evidence indicating that steps were taken in Alabama which led to the employment contract with Lost River. He did not, however, provide evidence that the employment was not localized in any state or that the employer was not subject to the workers’ compensation laws of Texas.

Lost River filed a motion to dismiss for lack of jurisdiction and submitted affidavit testimony providing that Lost River did not do business in Alabama and did not think it could be sued in Alabama simply because an employee they hired to work in another state was originally from Alabama. The trial court denied Lost River’s motion to dismiss, so Lost River petitioned the Court of Civil Appeals for a writ of mandamus directing the trial court to dismiss the action for lack of subject matter jurisdiction.

The Appeals Court considered evidence indicating that, at the time of the alleged injury, Bailey worked at Lost River’s place of business in Texas, that he lived in a residence provided by Lost River at the work site, that Bailey’s work days began and ended at the site, and that the injury itself occurred on the site. There was no indication that Bailey ever worked in Alabama for Lost River or that he was working anywhere other than Texas at the time of his alleged injury. Aside from arguing that the events leading up to his contract of employment with Lost River occurred while he was in Alabama, Bailey failed to offer any evidence showing that his employment was not localized in Texas.

The Court therefore found that Bailey’s employment was principally localized in Texas, and, as a result, Ala. Code § 25-5-35(d)(2) was not applicable. The Court also noted that Bailey presented no evidence, and did not even raise the issue, as to whether or not the workers’ compensation laws of Texas would apply to his injury. For these reasons, the Court of Appeals granted Lost River’s petition and directed the trial court to dismiss the action for lack of subject matter jurisdiction.

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About the Author

This blog post was written by Trey Cotney, Esq. of Fish Nelson & Holden LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson & Holden is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at tcotney@fishnelson.com or any firm member at 205-332-3430.

 

 

Friday, November 07, 2014

Alabama Court Again Finds Contract for Hire in Alabama Does not Mean Alabama Benefits

Ex parte Dalton Logistics

Petition for Writ of Mandamus

On November 7, 2014, The Alabama Court of Civil Appeals granted Dalton Logistics Petition for Writ of Mandamus. The Choctaw County Circuit Court had denied Dalton Logistics summary judgment motion, which asserted the Alabama court did not have subject matter jurisdiction over the injury that occurred in North Dakota. The Alabama Court of Civil Appeals ordered that the matter be remanded to the trial court and that the trial court enter an order dismissing the case for lack of subject matter jurisdiction.

The employee was a resident of Alabama and was informed of job openings with Dalton Logistics in North Dakota. The employee was sent "paperwork" via facsimile, which he completed and sent back to Dalton Logistics in North Dakota. Dalton Logistics arranged transport for the employee to North Dakota. Upon arrival, Dalton Logistics housed the employee in a "man camp" located in North Dakota. From the "man camp" Dalton Logistics would transport the employee to various work sites in North Dakota. Dalton Logistics did withhold Alabama income taxes from the employee’s check. The employee would work in North Dakota for 20 days and then Dalton Logistics would provide transportation back to Alabama where the employee would stay for 10 days, performing no work for Dalton Logistics. 

The employee was injured on a job site in North Dakota. Dalton Logistics did not file the initial report of injury with North Dakota’s workers’ compensation investigative and adjudicatory entity within 7 days. The employee subsequently filed for workers’ compensation benefits under Alabama law.

In ruling in favor of Dalton Logistics, the Alabama Court of Civil Appeals stated that Ala. Code 1975, §25-5-35(d)(1)-(4) addresses claims due to injury which occurred outside of Alabama. Generally, if injured outside of Alabama, and the employee would have been entitled to benefits had he been injured in Alabama, Alabama benefits are owed provide that several alternate conditions are met.

The first condition to consider is: was the employee’s employment principally localized in Alabama. In order to be principally localized in Alabama, or another state, the employer must have a place of business in the specific state, and the employee regularly works out of that place of business, or if the employee is domiciled and spends substantial part of the employee’s working time in service of the employer in that specific state. Associated Gen. Contractors Workers Comp Self Ins. Fund v. Williams, 982 So. 2d 557, 560 (Ala. Civ. App. 2007). In this case, the Alabama Court of Civil Appeals ruled that the employee was transported to North Dakota, housed in North Dakota during working periods and traveled to North Dakota locations to perform work for Dalton Logistics. While the employee was provided transport to Alabama he did not perform work for Dalton Logistics while in Alabama. In addition, the fact that Alabama income taxes were withheld did not establish the employment was principally localized in Alabama, as no work was performed in Alabama. Therefore, the employment in this case was principally localized in North Dakota.

The Alabama Court of Civil Appeals next analyzed was the employee working under a contract for hired entered into in Alabama, and, if so, 1) was the employment principally localized in any state, 2) was the employment principally localized in a stated but the employer was not subject to that state’s workers’ compensation laws and 3) was the employment outside the United States. There was no disputed that the employee was working under a contract for hire entered into in Alabama and the Court had already found the employer was principally localized in North Dakota. Therefore, they looked to see if Dalton Logistics was subject to the workers’ compensation laws in North Dakota. The employee cited N.D Cent Code §65-08-01 to support his contention that coverage was not afforded under North Dakota law. However, the Alabama Court of Civil Appeals stated that the North Dakota statute merely addressed that injuries sustained outside the state may nonetheless be compensable, which does not apply to injuries that occurred in North Dakota as the case before them. The employee next asserted that by failing to file paperwork in North Dakota within 7 days, Dalton Logistics implicitly recognized that North Dakota benefits where not available. The Alabama Court of Civil Appeals disagreed with this assertion based on the fact that the North Dakota Workers’ Compensation Act has built in sanctions for this situation. N.D. Cent. Code §65-05-01.4. In ruling that the employee had not proven Dalton Logistics was not subject to North Dakota worker’s compensation laws, they cited Barry v. Baker Elec. Coop., Inc., 354 N.W. 2d 666 (1984) (North Dakota law, not Minnesota, applied to claim stemming from injury due to conduct in North Dakota by a Minnesota-domiciled employee of a Minnesota employer). The Court stated "the Barry court expressly noted that ‘North Dakota has a long-standing and strong public policy interest in making workers’ compensation the exclusive remedy against an employer in the case of an injured employee.’" As a result, the Alabama Court o Civil Appeals found that the fact the contract for hire was entered into in Alabama alone did not support the trial court’s decision that it had jurisdiction over the case under the Alabama Worker’s Compensation Act.

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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.

If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at jholden@fishnelson.com or 205-332-1428.

Friday, October 31, 2014

Florida Judge Declares Exclusivity Doctrine Unconstitutional

Unless you have been cryogenically frozen in carbonite for the past 3 months, you have probably heard about the recent opinion released by Miami-Dade Circuit Judge Jorge Cueto which declared the Florida Exclusivity Doctrine unconstitutional.  His 22 page opinion (Padgett v. State of Florida No. 11-13661 CA 25) attacked the erosion of the Florida workers’ compensation system as a whole and asserted that the value of the benefits available to claimants did not justify the quid pro quo tort liability protections afforded employers.  The purpose of this article is to provide a general outline of what lead to Judge Cueto’s opinion and to consider its effect on a national scale.

Accident and Injury

The employee, Elsa Padgett, was an account clerk who tripped over some boxes that were left on the floor by a co-worker.  She reportedly fell on her hip and sustained significant injury to her shoulder.  After undergoing replacement surgery for her shoulder, she claimed that the resulting pain forced her to retire.

Procedural Background

Padgett opted to file a negligence lawsuit against her employer.  In its Answer, the employer asserted the Exclusivity Doctrine (§440.11, Fla. Stat. 2003) as an affirmative defense.  Padgett then amended her Complaint to add a Count for Declaratory Relief asking the Court to declare the Florida Exclusivity Doctrine in violation of the U.S. and the Florida Constitutions.  Once Florida Worker’ Advocates (FWA) and Workers Injury Law & Advocacy Group (WILG) joined the party as interveners, the employer strategically withdrew its Exclusivity Doctrine defense and the negligence action was severed from the Declaratory Relief portion of the lawsuit.  The Florida Attorney General opted not to intervene in order to defend the constitutionality or validity of the Exclusivity Doctrine.  However, she did file a responsive pleading pointing out various procedural and substantive defects in the case.  FWA and WILG next sought a summary judgment but Judge Cueto denied the motion on the grounds that there was no longer a present justiciable controversy.  Padgett then intervened in the Declaratory Relief action which presented a controversy upon which Judge Cueto could rule (Florida empowers a judge to decide an issue if that issue is capable of repetition in the future and might evade review).

Erosion of Benefits

In his written opinion, Judge Cueto noted that the system of workers’ compensation is supposed to be the result of a compromise wherein employees receive immediate access to indemnity and medical benefits through a no-fault insurance system and employers are insulated, with limited exceptions, from tort liability.  He then pointed out that the benefits afforded employees had been greatly reduced as the result of the 2003 amendments that eliminated permanent partial disability benefits, put a 5 year cap on permanent and total disability benefits, capped said benefits at age 75, and apportioned medical care by requiring contribution in the form of co-pays by the employee after reaching maximum medical improvement.  Judge Cueto concluded that the Florida workers’ compensation system no longer provided adequate indemnity and medical benefits for injured workers and that preventing them from pursuing a tort remedy was a violation of due process.

Ruling

Judge Cueto ruled that the Florida Exclusivity Doctrine was unconstitutional on August 13, 2014.  One week later, he denied a motion for rehearing filed by the Attorney General’s office.

Appeal

The Attorney General appealed Judge Cueto’s ruling to the Third District Court of Appeal on August 26, 2014.  The case is now called Florida v. Florida Workers’ Advocates.  Should the District Court of Appeal decide to rule, its decision could become the law for the Third District, and possibly followed by the other Florida districts.  The Third District Court declined to certify the case directly to the Supreme Court and the District Court of Appeal also denied that request.  The Attorney General’s initial Brief is due on or before December 4, 2014.

According to Casey Gilson attorney Rayford Taylor, who practices in Georgia and Florida, there is a legitimate chance that Judge Cueto’s ruling will be treated merely as an advisory opinion rather than a declaratory judgment.  None of the Interveners established that they had been injured or prejudiced by the Exclusivity Doctrine, or by the provisions they cited as a basis for a challenge to the statute.  The issue may need to be addressed again the next time an employee sues an employer in tort and the employer asserts the Exclusivity Doctrine as a defense.

Other Constitutional Attacks in Florida

The Padgett case is not the first time this particular claimant’s attorney has taken the offensive against the Florida Workers’ Compensation Act on constitutional grounds.  According to attorney Rob Grace, who practices with the Bleakley Bavol firm in Florida, this same attorney has filed a number of these suits around the state during the last five years.  Padgett just happened to be one where a judge accepted his argument.  The attorney filed a similar suit in Broward County which was dismissed approximately five years ago.  At the same time, the attorney had another comparable suit (Stahl v. Tenet Health Systems, Inc.) in Dade County which he lost at the Third District Court of Appeals level.

The Florida Supreme Court is currently considering a couple of other cases involving constitutional attacks on the state’s workers’ compensation system.  In the case of Westphal v. City of St. Petersburg, The Court has before it an appeal from a firefighter who was injured and left with no income after his temporary indemnity benefits expired.  His authorized doctors took him out of work and he was not eligible for additional benefits until the doctors placed him at maximum medical improvement.  The firefighter is challenging the constitutionality of the statutory limit on the payment of temporary total disability benefits.

In the case of Castellanos v. Next Door Company, the Florida Supreme Court is considering an appeal challenging the constitutionality of the statute that provides for the calculation of attorneys’ fees in workers’ compensation matters, based solely on a statutory percentage of benefits achieved by the attorney.

Other States

Although it has not yet risen to the level of a national trend, several other states have seen constitutional attacks on certain aspects of their respective workers’ compensation systems.

In California, the constitutionality of the workers’ compensation lien system was recently raised in the case of Angelotti Chiropractic v. Baker.

Approximately 20 years ago, the entire Texas Workers’ Compensation Act withstood a constitutional challenge and, more recently, the Texas Office of Injured Employees Counsel released a few reports last year that pointed out the inequities of the alternative dispute resolution program.

In Tennessee, there have been some unsuccessful constitutional attacks on other parts of the workers’ compensation statute (i.e. multipliers and the Medical Impairment Registry program) but not the Exclusivity Doctrine.

Approximately 6 years ago In Alabama, an employee filed a motion seeking to have the $220 cap for permanent partial benefits deemed unconstitutional.  The judge denied the motion but stated in his Order that the cap set 23 years prior basically guarantees poverty for claimants and their families.  The judge further stated that "the trial courts see these workers leave our courtrooms week after week, without the ability to support themselves or their families."  The judge deemed the cap unfair but not unconstitutional and called upon the Alabama Legislature to make the change.  Several legislative attempts at increasing the cap have been made since that time but all have been unsuccessful.

Moral of the Story

According to Rob Grace, "my prediction is that, in the end, nothing will come of Padgett.  Maybe I will be proven wrong but I find it difficult to believe that our supreme court is going to basically throw out the entire workers’ compensation statute."  Rayford Taylor agrees with Grace.  According to Taylor, "I do not see how mere allegations that certain provisions are different from what they once were invalidates the tort immunity of an employer whose only offense was complying with the statute."  Even if Grace and Taylor are correct, there remain lessons that can be learned from the Padgett opinion and other such cases.  The more you reduce benefits to employees, the more susceptible to constitutional attacks your workers’ compensation system becomes.  In his now already infamous opinion, Judge Cueto referred to a First District Court of Appeal comment on the "minimum" requirements necessary for a workers’ compensation system to pass constitutional muster.  In Bradley v. Hurricane Restaurant (an 18 year old case that interestingly involved both attorneys Taylor and Grace), the Court stated that workers’ compensation law continues to be a "reasonable alternative to tort litigation" when it "provides injured workers with full medical care and benefits for disability (loss of wage earning capacity) and permanent impairment regardless of fault, without the delay and uncertainty of tort litigation."  In Judge Cueto’s opinion, the Florida system does not meet this minimum.  Does yours?

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About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson & Holden LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson & Holden is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at mfish@fishnelson.com or any firm member at 205-332-1448.

 

 

 

 

 

 

 

Monday, October 13, 2014

Alabama Court of Appeals Reverses Itself in Attorney Fee Case

On October 10, 2014, the Alabama Court of Civil Appeals released its opinion in the case of Arthur Barney v. Elizabeth Bell, as personal representative of the estate of Maurice Bell, deceased, and William Clay Teague. This case was before the Court for a second time, because Barney filed an Application for Rehearing after the Court ruled against Barney on July 18, 2014. A summary of the facts of the case and the Court of Appeals’ first opinion can be found here. On rehearing, the Court reversed itself and the trial court, holding that Barney’s attorneys were not entitled to summary judgment on Barney’s claim that they committed malpractice by retaining an excessive attorney’s fee on the workers’ compensation claim. The Court also held that Barney was entitled to partial summary judgment on that claim. The Court entered judgment in favor of Barney in the amount of $6,375.00, and remanded the case to the trial court for a determination of whether Barney is entitled to additional compensatory of punitive damages.

In reaching its decision, the Court noted that the attorneys failed to present any expert testimony regarding the reasonableness of their fees, and that they were therefore not entitled to summary judgment on Barney’s malpractice claim. The Court further noted that there was no factual dispute as to whether the attorneys breached the standard of care, thus committing malpractice, by keeping too much of Barney’s workers’ compensation settlement for their fee. 

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ABOUT THE AUTHOR

This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.

Monday, September 22, 2014

The Alabama Workers Comp Blawg is Seven Years Old

Today the Alabama Workers’ Comp Blawg celebrates another birthday. We would like to take this time to thank all of our readers who have helped to make http://www.alabamaworkerscompblawg.com a go to reference for Alabama workers’ compensation over the last 7 years!

Tuesday, September 09, 2014

Alabama Court of Civil Appeals Reverses Permanent and Total Disability Award as Premature

On August, 8, 2014, the Alabama Court of Civil Appeals released its opinion in Fab Arc Steel Supply, Inc. v. Timothy Dodd wherein it reversed a permanent and total disability award. Among the several issues on appeal, the Court considered whether there was enough evidence to support a finding that an L-1 herniation that was asymptomatic for more than a year following the accident was causally related to the accident. The Court also considered whether a determination of permanent disability could be made when the employee was not yet at maximum medical improvement (MMI). In addition, the Court considered whether a termination for misconduct could be considered a constructive refusal of suitable employment for purposes of denying temporary total disability (TTD) benefits.  

L-1 Herniation

On appeal, the employer relied on the testimony of neurosurgeon, Dr. James White. At his deposition, Dr. White testified that he could not connect the herniation to the accident since the symptoms of lower back pain radiating into the lower extremities did not begin for over a year following the accident. In affirming the Trial Court on this issue, the Court of Appeals acknowledged that such a delay in symptoms certainly weakens the inference that a post-accident appearance of an injury is related to an accident. However, the Court relied on the fact that a herniation is the type of injury that results from trauma, that late symptoms did not rule out the accident as the cause, and that no doctor attributed the herniation to any other cause such as a degenerative condition.

MMI

Since the employer denied that the L-1 herniation was related to the accident, it refused to provide any of the recommended treatment associated with the injury. Dr. White testified that he recommended surgery and/or injections. At trial, the employee testified that he wanted to have the surgery. On appeal, the employer asserted that, if the herniation was determined to be related, then the employee could not be considered to be at MMI and, thus, any determination of permanent disability was premature. The Court of Appeals agreed and reversed the permanent and total disability award. The Court further ordered that the recommended treatment be provided and that the issue of permanent disability be readdressed once the employee was placed at MMI.

Constructive Refusal of Suitable Employment

At trial, the employer presented evidence that the employee was terminated due to insubordination and argued that his conduct amounted to a constructive refusal of suitable employment. The employer took the position that it should not be responsible for paying TTD benefits when it made a job available that fell within the physical limitations assigned by the treating physician but then the employee basically got himself fired. The Trial Court determined that the employer’s reasons for terminating the employee were without merit. The Court of Civil Appeals declined to reverse the Trial Court on that determination and, therefore, could not reverse the determination that TTD was owed.

My Two Cents:

Although the Court of Appeals refused to reverse the Trial Court on the TTD issue, it did not assert that the "constructive refusal of suitable employment" argument was improper. This leaves the door open in the future for this argument to be made whenever an employee is fired due to misconduct.

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About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson & Holden LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson & Holden is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at mfish@fishnelson.com or any firm member at 205-332-1448.

 

Monday, September 08, 2014

Alabama Court Rules Exemption From Coverage Must be Revoked

Hooks v. Coastal Stone Works, Inc.

Released September 5, 2014

The Alabama Court of Civil Appeals ruled that an officer of a corporation must take action to revoke previous certification of exemption from workers’ compensation coverage pursuant to § 25-5-50(b).

On May 24, 2006, Hooks, along with two other officers of Coastal Stone Works, Inc., signed a certificate of exemption to be exempted from coverage under the Alabama Workers’ Compensation Act pursuant to § 25-5-60(b). On November 23, 2011, Hooks was injured and sought benefits under the Alabama Workers’ Compensation Act and filed suit. Coastal Stone Works, Inc. file a motion for summary judgment, which was ultimately granted the second time it was filed. It’s position was Hooks exempted himself in 2006 and never revoked the exemption. Hooks asserted that, if he did not file a certification of exemption each year, the exemption automatically revoked itself. There was no dispute that Hooks did not sign or file anything other than the certification of exemption submitted in May of 2006.

Hooks argued that § 25-5-60(b) states an officer of a corporation may elect annually to be exempt from coverage on the workers’ compensation act. Hooks interpreted this section to require him to annually elect to be exempted from coverage and if he did not the exemption was automatically revoked. Coast Stone Works, Inc. argued that this the provision goes on to state that the exemption may be revoked upon an officer filing a written certification electing to be covered. Coastal Stone Works, Inc. argued that this showed that the legislature intended the requested exemption to remain in effect until the officer revoked the exemption in writing.

The Court of Civil Appeals agreed with Coastal Stone Works, Inc. and stated that if the legislature had intended the exemption to revoke each year unless the officer requested the exemption again it would not have provided the method for revoking the exemption. The Court of Civil Appeals opined that § 25-5-60(b) required an officer to take action to revoke the previous certification of exemption as opposed to the revocation being automatic unless they file another certification of exemption.

MY TWO CENTS:

Any time you are dealing with an injury involving an officer of a corporation make sure to verify that they never submitted a written certification of exemption to the carrier and the Alabama Department of Labor. 

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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.

If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at jholden@fishnelson.com or 205-332-1428.

Friday, August 29, 2014

DEA Reclassifies Hydrocodone

In an effort to reduce painkiller abuse and misuse, the Drug Enforcement Agency (DEA) announced last week that it is reclassifying hydrocodone as a Schedule II Controlled Substance. Under the new regulation, which will go into effect on October 5, 2014, doctors will no longer be able to call in prescriptions for drugs like Lortab and Vicodin. Additionally, patients will only be allowed one 90-day prescription per doctor visit, and will have to actually see their doctor in person before obtaining a refill. According to DEA Administrator Michele Leonhart, "Almost seven million Americans abuse controlled-substance prescription medications, including opioid painkillers, resulting in more deaths from prescription drug overdoses than auto accidents." The official DEA release can be found here.

My Two Cents

The effects of the new regulation on employers could be two-fold. Employers can most likely expect an increase in claims management costs associated with more frequent doctor visits for injured workers who are in long-term opiate therapy. However, the new regulation could also greatly reduce the financial burden placed on employers by "pill mills" that dole out drugs like candy after seeing a patient only once or twice. In either case, employers and claims managers need to be aware of the new regulation to ensure that the medical providers they select to care for injured workers comply with these guidelines.

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About the Author

This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.