Dollar General Corporation v. Patricia Nelson:

On July 2, 2009, the Alabama Court of Civil Appeals released this opinion in which it reversed the trial court’s finding that the employee’s stroke was caused by her employment. At trial, the evidence revealed that the employee worked between 70 and 80 hours per week. On the day of her stroke, she came in early and scheduled other employees to do the same. They needed to be there early to load a truck. When the truck driver called and said he had been delayed due to being pulled over by the police, the employee testified that she had reached her stress limit. It was at that point that she began to experience the symptoms of a stroke. The evidence also revealed that the employee had high blood pressure, problems with family members, problems with relationships, and anxiety. In reversing the trial court, the Court of Civil Appeals noted that the employee failed to prove that she was exposed to a danger or risk materially in excess of that danger to which all persons are ordinarily exposed in their everyday lives. As such, she failed to prove legal causation.

On June 26, 2009, the Alabama Court of Civil Appeals considered the trial court’s finding of medical causation for a second time.  In the case, the employee claimed to have sustained a cumulative physical stress injury to his neck and shoulders while employed as a truck driver by KGS Steel, Inc.  The first time, the Court of Civil Appeals reversed the trial court after reweighing the evidence presented at trial and determining that the employee’s case did not satisfy the clear and convincing proof standard of evidence, which is required in order to prevail in a workers’ compensation claim based on an injury caused by cumulative physical stress.  In its ruling, the Court of Civil Appeals also implied that proof of medical causation is solely dependent upon the presence of expert medical testimony.  However, the Supreme Court of Alabama reversed and remanded the Court of Civil Appeals with regard to reweighing evidence and establishing medical causation. The Supreme Court stated that an appellate court cannot reweigh evidence presented to the trial court. Rather, the appellate court’s role is to determine whether the trial court’s findings of fact are supported by substantial evidence with due regard to, and respect for, the appropriate level of evidentiary proof required, which in this case is clear and convincing proof. The Supreme Court also stated that "totality of the evidence" standard applies to workers’ compensation cases, which means that lay and expert, as well as circumstantial evidence, must be considered.      

In its second opinion, the Court of Civil Appeals still reversed the trial court’s finding of medical causation; however, the Court incorporated the instructions from the Supreme Court.  After reviewing all circumstantial evidence, lay testimony, and expert testimony, the Court of Civil Appeals ruled that the trial court could not have reasonably concluded with firm conviction that the employee’s job duties at KGS Steel, Inc. caused or contributed to the neck and shoulder injuries claimed by the employee. 

It should be noted that Judge Pittman dissented on the grounds that he agreed with the trial court’s conclusion. 

Christopher Hatch v. NTW Incorporated, d/b/a/ National Tire and Battery Company:

On June 19, 2009, the Alabama Court of Civil Appeals affirmed the trial court’s Order granting the Employer’s Summary Judgment Motion as to the retaliatory discharge portion in the workers’ compensation claim. The employer was terminated due to the expiration of his 3 months of leave time (FMLA) pursuant to company policy. These 3 months consisted of time the plaintiff was off for the on the job back injury. In fact, the 3 months expired approximately 7 days after the employee was placed at MMI. The Court of Appeals held the plaintiff could use circumstantial evidence to establish a prima facie case for retaliatory discharge pursuant to Alabama case law. However, the proximity of the termination to the MMI date, the decision maker’s knowledge of the compensation claim, the supervisor’s attempt to contact the doctor, allowing an employer to work light duty for a period despite the lack of company policy, and having the reason for termination expressed two different ways but both indicating termination was due to the expiration of leave time was not enough circumstantial evidence to establish the compensation claim was the sole motivating factor for the termination.

As was previously discussed on the blawg (http://www.alabamaworkerscompblawg.com/template_permalink.asp?id=144 ) work continues in Congress in opposition to the possible federalization of Workers’ Compensation laws.  

There was an attempt to push the bill, H.R. 635, through Congress via the Suspension Calendar (which is an expedited procedure that is generally used for non-controversial measures), but this was blocked after many people contacted their Congressional delegation. Because of the calls and emails, the bill’s supporters got the message that they could not advance this bill through an expedited process.  The Chamber and other groups are continuing the grassroots effort to educate their members, and the public about this harmful bill. 

However, H.R. 635 could be included as an amendment to a larger piece of legislation, like health care or OSHA reform. Doug Holmes, President of UWC – Strategic Services on Unemployment and Workers’ Compensation, along with AIA, and the Property Casualty Insurance Association of America (PCI), drafted a resolution opposing H.R. 635 which will be offered for approval at the annual meetings of the National Conference of Insurance Legislators (NCOIL) and the American Legislative Exchange Council (ALEC) this summer.  The National Federation of Independent Business (NFIB) has similarly been preparing a resolution opposing H.R. 635 for consideration at the ALEC meeting. In addition, Bruce Wood, Associate General Counsel, American Insurance Association (AIA), will be speaking on a panel specifically addressing H.R. 635, at an American Association of State Compensation Insurance Funds conference in Washington, D.C.

Work continues to be done in opposition to H.R. 635 and members of Congress continue to be educated about this bill and the detrimental effects it will have on state workers’ compensation systems.

The National Conference of Insurance Legislators (NCOIL) will consider a working draft of the Employee Misclassification Workers' Compensation Coverage Model Act, as sponsored by Rep. Charles Curtiss (TN) when it meets on July 10^th at the 2009 NCOIL Summer Meeting. The model attempts to address workers' compensation issues caused by employee misclassification and independent contractor status. It presumes the employment status of an injured worker unless he/she can meet a nine-point test to be exempt from coverage requirements as an independent contractor. It also requires construction industry independent contractors with any employees to carry coverage. Much of the model is based on the Florida statute, with the exception of the independent contractor definition, which uses a Wisconsin nine-point test to establish independent contractor status. The model includes language addressing a number of the ongoing issues surrounding the definitions of "employer", "employee" and "independent contractor" that are also addressed by taxing agencies such as the IRS, Unemployment Insurance, and the Federal Labor Standards Act, and regulated by Secretaries of State and Departments of Commerce among others. If adopted by NCOIL, this model would likely begin to serve as a reference for state workers’ compensation "reform" proposals.

In a recent article in the Insurance Journal, it was noted that the economic downturn has resulted in a rise in workers’ compensation fraud. According to a senior special agent for the National Insurance Crime Bureau, people stay out longer on claims and multiple body parts are reported in the same claim. This of course increases treatments and costs. Employees are litigating rather than settling which requires more testing and lab work. In addition, employees are now choosing to expand the claim. For example, a toe injury leads to sleep therapy, which leads to sexual dysfunction. Acording to the NICB, there has also been a significant trend in medical identity theft and provider fraud. To read the full article, visit: http://www.insurancejournal.com/news/national/2009/04/14/99585.htm.

Matthew’s Masonry Company v. Edward Aldridge, Jr.:

On June 5, 2009, the Alabama Court of Civil Appeals considered the trial court’s interpretation of certain settlement language for a second time. The first time, the Court reversed the trial court because it failed to consider the affect of settlement language that specifically settled future medical care for the right and left knees. On remand, the trial court heard oral arguments on the issue and issued an Order stating that the settlement agreement was ambiguous because it could possibly mean to only exclude future medical care for injuries to the knees in existence at the time of the settlement. The trial court went on to state that, since the knee injuries could have developed after the settlement agreement as a result of an altered gait created by the back injury for which medical benefits were still available, medical benefits remained available for the new post-settlement injuries. On appeal for the second time, the Court of Civil Appeals ruled that, in the absence of fraud, a workers’ compensation settlement supported by valuable consideration and unambiguous in meaning, will be given effect according to the intention of the parties. In this case, the fact that future medical care for both knees was specifically set forth in the settlement agreement made it unambiguous and, as such, outside evidence was not admissible to question the settlement terms. The settlement agreement stated that future medical benefits were closed for the knees and, therefore, no further benefits were available. 

Practice Pointer:     If you intend to leave medical benefits open for a specified body part, then it is important to state this intention in the settlement language. In Alabama, if it can be shown that an employee develops subsequent injuries that are the "direct and natural consequence" of the covered injury, then the new injury may also be covered. This is known as the Successive Compensable Injury Test. It may be possible to eliminate exposure for such future conditions by specifically excluding such future injuries or conditions in the settlement language even if you are leaving medical benefits open.

Representative John Tanner, of Tennessee’s 8th Congressional District, recently reintroduced the Medicare Secondary Payer and Workers’ Compensation Settlement Agreements Act of 2009. The bill has been assigned HR 2641. The bill is a reintroduction of HR 2549 from the 110th Congress with important modifications that were made to assure that the legislation is revenue neutral in impact. The primary changes include:

1) reduced the threshold provision below which WC settlement agreements would be exempt from $250,000 to $25,000 or less, so as to more closely mirror the current CMS guideline below which WCMSA’s are not to be submitted for review;

2) Added a cap on the "safe harbor" provision permitting the payment of 10% of the settlement to Medicare as an option to meet set-aside requirements to limit the option to cases involving settlements not to exceed $250,000 in value; and

3) Extended the number of days within which HHS would be required to provide notice of Medicare conditional payments owed from 60 to 90 days.

Ex parte Travis C. Aderhold (In re: Massey Chevrolet, Inc. v. Travis C. Aderhold):

On May 22, 2009, the Alabama Supreme Court denied a petition for writ of certiorari filed by the employee as a result of the Alabama Court of Civil Appeals decision in Massey Chevrolet, Inc. v. Travis C. Aderhold. The prior opinion was previously reported in this blawg on January 23, 2009.  As a short recap, the authorized treating physician referred the employee to two different pain management doctors. One was supposed to handle pain management and the other was simply supposed to perform a procedure. When the procedure doctor tried to perform other treatment not dictated by the authorized treating physician, the employer denied it. the employee sought relief from the trial judge and the judge ordered that the procedure doctor be considered an authorized treating physician. The Court of Civil Appeals ruled that the procedure doctor was not an authorized treating physician because the employee was sent to him for a "limited purpose." Interestingly, the Court of Civil Appeals did consider the other pain management doctor to be an authorized treating physician because the employee had been referred to him for on going medical care.

Although the Supreme Court denied the petition with no opinion, Justice Murdock issued a special concurring opinion in which he asserted that he agreed with the result but disagreed that the doctor providing on going pain management should be considered an authorized treating physician. According to Justice Murdock, only the initial treating physician was the true authorized treating physician.

Brown v. Cassens Transport Co., et al., 546 F.3d 347 (6^th Cir. 2008)(NO. 05-2089):

A short summary of this case was previously provided in this blawg on October 29^th. At that time, the 6^th Circuit Court of Appeals had reversed the District Court’s decision to dismiss RICO claims against the employer, third party administrator, and alleged "cut off" doctors. Specifically, the plaintiffs alleged that the defendants deliberately selected and paid unqualified doctors to give fraudulent medical opinions that would support the denial of workers’ compensation benefits, and that the defendants ignored other medical evidence in denying them benefits. The plaintiffs claimed that the defendants made fraudulent communications amongst themselves and to the plaintiffs by mail and wire in violation of 18 U.S.C. §§ 1341, 1343.

Since the time of my last blawg report, the 6^th Circuit, on January 5, 2009, denied a Rehearing and a Rehearing En Banc request made by the defendants. As a result, a Petition for Certiorari to the U.S. Supreme Court was filed on May 6, 2009. Of interest, the application makes the following points:

I will continue to monitor the progress of this Petition and keep you posted.

In a March advisory opinion, the Philadelphia Bar Association stated that it is unethical to gain access to a witness’ social networking web site by using a "friend" not affiliated with the litigation. Since Facebook and MySpace require an invitation and/or permission before access is granted, they are different from other types of sites that provide unhindered access to the general public. By not telling the witness the real reason that access is requested, it is concealment and thus unethical.

My Two Cents: Although this issue has not yet been addressed in Alabama, I would expect the same result. Even without a formal ethics opinion in place, a trial judge would likely frown on an attorney or his clients gaining access to this type of information by concealment.

Walmart Stores, Inc v. Marilyn Orr:

In re: Randall Paul v. Sunbelt Transport:

SB 381, by Sen. Quinton Ross (D) of Montgomery, was previously mentioned on the blawg here at http://www.alabamaworkerscompblawg.com/template_permalink.asp?id=133.

This bill limits the preclusive effect of a finding of fact, conclusion of law, judgment, or final order made under the unemployment compensation statutes. Also, the bill precludes an employer from using an employee's previous statements and findings in court in certain cases. In a workers compensation case, not allowing evidence about a claimant's other cases or judgments could be very detrimental to an employer.

Francis Powell Enterprises, Inc. v. Andrews:

On April 24, 2009, the Alabama Court of Civil Appeals released a twenty-four (24) page opinion which covered numerous issues. Due to the voluminous nature of the opinion, bullet point summaries of the issues are provided below.

Notice Requirement

In this case the employee felt pain in his back after a fall on November 3, 2003. However, he did not think it was serious and went on with his job. On November 5, 2003, the plaintiff was on the job and felt the pain again and could not straighten up. He notified his employer on November 6, 2003 of the November 3, 2003 fall. The employer argued that the employee said he did not believe he sustained a major injury on November 3, 2003. Therefore, the employer took the position that the Trial Court made no findings concerning adequate notice of the November 5, 2003 injury.

The Court of Civil Appeals held that November 3, 2003 was the date of injury and this was supported by substantial evidence. The Court held that the seriousness of the employee’s injury from the November 3, 2003 fall did not manifest itself until later, November 5, 2003. For this reason there was substantial evidence that the injury was on November 3, 2003 and the employee provide adequate notice of the injury pursuant to Ala. Code §25-5-88.

Medical Causation

The treating physician testified that, based on an assumed set of facts, which mirrored the plaintiff’s past medical history, he would assume the November 3, 2003 fall exacerbated the employee’s condition. The Court noted the Alabama Supreme Court’s previous ruling, Ex parte Bryant, "In appropriate circumstance, awards may be made when the medical evidence on these matters is inconclusive, indecisive, fragmentary, inconsistent, or even nonexistent.

The Court held that the doctor’s assumption based on the hypothetical facts mirroring the employees medical history provided substantial evidence of medical causation.

Apportionment of Benefits

The fact that the employee was previously deemed permanently and totally disabled by the Social Security Administration did not trigger the apportionment provision set forth in Ala. Code §25-5-58. The Court found that the employee had returned to work at full duty thus nullifying the effect of the prior decision

Estoppel

The evidence before the Court was that the employee received Social Security benefits until 2001. After this period he returned to work, at full duty, for several employers without complaints of back pain. Therefore, the Court found the previous Social Security benefits did not estop him from claiming he was able to do his job.

Note: The employer tried to establish that the employee received benefits from Social Security in 2003 as well. However, the Court noted that the employer did not present sufficient evidence to prove this. Therefore, it is possible the outcome would have been different if the employer had provided sufficient evidence of benefits in 2003.

Payment of Benefits not Admission of Guilt

The Alabama Workers’ Compensation Act §25-5-56 provides that if an employer pays compensation benefits to an employee, it is not an admission of liability. Based on this the Court can not infer that because an employer paid benefits that they are liable for the claim. The Court held that they must presume the Trial Court knows the law. Therefore, the fact payment of benefits is mentioned in the Trial Court’s findings of fact does not indicate an improper inference and was not error.

Democratic Congressman Joe Baca from California has introduced a bill to the 111^th Congress hoping to establish a commission to evaluate state workers’ compensation laws. The commission will be called the "National Commission on State Workers’ Compensation Laws". The main objective of this commission will be to determine the adequacy of each states current workers’ compensation laws and make recommendations for improvement based on their finding.  While this is the stated objective, it is interesting to note that the bill itself actually states that the current state systems are inadequate.  The commission will hold hearings, take testimony and receive evidence as part of the investigation. The commission will issue a final report within 18 months stating what changes they feel will benefit state law and will terminate within 19 days after the issuance of this report.  The commission will consist of 14 members including the Secretary of Labor, Secretary of Commerce, Secretary of Health and Human Services and Secretary of Education along with other appointees. Of the 14 members 3 will represent injured workers, 3 will represent insurance carriers and employers and 1 will represent the general public. There has not been a commission of this kind formed to review state workers’ compensation laws in over 30 years since the Nixon administration formed such a commission in 1972.

My Two Cents:  It comes as no surprise that the only groups who took part in writing and who provided input for this bill are comprised of plaintiff attorneys.  This would appear to be the first step towards federalization of workers' compensation.

The Alabama Workers' Compensation Code does not provide for the reimbursement of mileage for trips to and from the pharmacy.  However, the Alabama Department of Industrial Relations recently released a memorandum which states that mileage for one round trip to the pharmacy to fill a prescription is now a reimbursable expense.  Employees cannot claim reimbursement for multiple trips if they choose to drop off the prescription and return later to pick it up.  The Department also indicated that the employee has up to one year to claim the reimbursement.  Upon the expiration of one year, the employee is forever barred from claiming reimbursement for the expense.   

Lana Brown v. Korner Store:

On April 17, 2009, The Alabama Court of Civil Appeals considered whether or not an unexplained fall satisfies the "arising out of" part of the test for causation. The undisputed facts revealed that the employee, a 60 year old cashier, turned quickly and made a few quick steps towards the cash register when she saw a customer approaching the counter.  The closed circuit television system video revealed that the employee simply fell to the ground. The employee testified that she did not know what caused her to fall. As a result, the trial judge granted summary judgment in favor of the employer based on a prior case with similar facts (Wal-Mart Stores v. Morgan). Unfortunately, the Court of Civil Appeals reversed the trial court by relying on a more recent case (Ex Parte Byrom) which, according to the Court, effectively reversed all the cases before it (including Wal-Mart v. Morgan). In other words, prior to Ex parte Byrom, an employee had to be able to prove that the employment was the "source and cause" of an accident. If a fall was unexplained, then the employee could not satisfy this burden and would lose. In overruling these cases, the Court held that if employees can establish that they fell at work, then they satisfy the "arising out of" part of the causation test. This has the effect of doing away with the "arising out of" part of the test altogether. The employee now only need show that the fall happened "in the course of" the employment and they have met the necessary burden to prove legal causation.

My Two Cents:  The case which the Court of Civil Appeals relies on as overruling Wal-Mart v. Morgan concerned an employee that was electrocuted while on the telephone. In that case, the Alabama Supreme Court held that the claim was compensable because the employee established that his work duties made him more susceptible to such an accident. As such, it should not have the effect of overruling prior case law regarding unexplained falls. Hopefully, this case will be reviewed by the Alabama Supreme Court and the matter will be reversed. Otherwise, employers will be responsible for all on the job accidents regardless of the cause.

On April 3, 2009, the Centers for Medicare and Medicaid Services (CMS) issued a formal memorandum stating that it will start independently pricing future prescription drug treatment costs/expenses in Workers' Compensation Medicare Set-Aside (MSA) proposals beginning June 1, 2009. Per CMS, prescription drug amounts will be independently priced and calculated by CMS using average wholesale price (AWP) for all completed MSA submissions received on or after June 1, 2009, where the future treatment plan for a workers' compensation injury includes prescription drugs. CMS will accept the use of Generic Part D prescription drugs using AWP pricing, when applicable; however, CMS will not use or recognize any other pricing, discounting, or calculation methods when determining the adequacy of the prescription drug amounts in these MSA proposals.

Ex Parte Saad’s Healthcare Services, Inc.:

On April 3, 2009, the Alabama Supreme Court released this opinion which addressed a trial court’s ability to find an employee permanently and totally disabled when the employee has refused psychological and psychiatric treatment. The case arose out of an unfortunate incident in which a licensed practical nurse was stabbed 47 times by a patient’s relative. She received treatment for both physical and mental injuries. At trial, evidence was introduced that the employee refused psychological/psychiatric treatment. As a result, the trial judge applied the Ala. Code § 25-5-57(a)(4)d exclusion which states that an employee cannot be found permanently and totally disabled when he or she refuses to undergo physical or vocational rehabilitation. The case was appealed twice. The first appeal resulted in the Alabama Court of Civil Appeals reversing the trial court on the grounds that the exclusion set forth in Ala. Code § 25-5-57(a)(4)d only applied to refusals taking place after the employee reached maximum medical improvement (MMI). The matter was appealed to the Alabama Supreme Court where the petition was quashed without opinion. When the matter was returned to the trial court, it was learned that the employee had continued to refuse psychological/psychiatric treatment after being placed at MMI by refusing to take her antidepressant medication. Despite this new evidence, the trial court held the employee to be permanently and totally disabled. In support of this finding, the court noted that the Ala. Code § 25-5-57(a)(4)d exclusion did not apply since psychological/psychiatric treatment did not constitute "physical or vocational rehabilitation" as required by the statute. The employer appealed this decision and the Alabama Court of Civil Appeals agreed with the trial court. The Alabama Supreme Court subsequently granted the employer’s petition for certiorari review and held that, because the post-MMI treatment refused by the employee was not offered for the purpose of restoring her physical function or her ability to engage in gainful employment, but was instead offered to treat her mental impairments, the treatment was not "physical or vocational rehabilitation" within the meaning of the Ala. Code § 25-5-57(a)(4)d exclusion.

Practice Pointer:

If you are facing a similar situation then you will want to read the 11 page dissenting opinion authored by Justice Parker quoting extensively from Justice Moore’s partial dissent in the underlying Court of Civil Appeals opinion.