Belcher-Robinson Foundry, LLC v. Narr

On January 29, 2010, the Alabama Court of Civil Appeals released this opinion wherein it considered whether or not an Order generated as the result of a bifurcated compensability hearing was final and appealable. Following an adverse ruling on the issue of compensability, the employer filed a Petition for Writ of Mandamus. The Court of Appeals treated the Petition for Writ of Mandamus as an appeal seeking review of a final and appealable judgment.

The employee had sought to bifurcate the trials for a determination on medical treatment with thoughts that the employer could not appeal because it was a mere compensability determination. If the trial court only rules on compensability and awards no other relief the judgment is not final and the only relief would be by Petition for Writ of Mandamus.

At the trial level, the Court ruled that the injury was compensable and the employer owed medical expenses and temporary total disability benefits. The Court of Appeals held that because the Court additionally ruled on temporary total disability, as will as medical benefits, the Order was final and appealable.

The Legislators are at it again. Democratic Representative Joseph Mitchell, of Mobile has introduced HB 21 in the 2010 session that would seek to remove the $220 cap on weekly benefits. This bill would also remove the limitation to the schedule of injuries. This is not the first attempt at either of these. HB 18 was introduced in the 2009 session. (See previous entries under $220 cap). HB 21 is pending in the House Commerce Committee. The Committee chair has indicated that he has no plans to hear the bill in the immediate future.

You can visit the Alabama Legislation web site through the following link:

http://alisondb.legislature.state.al.us/acas/ACASLogin.asp

You can contact your Representatives and Senators by calling the House operator at 334-242-7600 or the Senate operator at 334-242-7600.

(Note: The Alabama Court of Civil Appeals withdrew its opinion of July 17, 2009 and substituted it with the opinion summarized below)

G.A. West & Co. v. Ricky McGhee: 

On January 29, 2010, the Alabama Court of Civil Appeals released this opinion in which it reconsidered a previous opinion. Specifically, the Court addressed whether the trial court properly calculated the AWW and whether or not a permanent and total award was proper. At trial, the employee introduced evidence that he was injured on his second day of work. Since the employee was a welder and iron worker and did not work consistent work weeks throughout the year, the judge determined that the 3 methods for calculating an AWW provided in the Code were not applicable. Therefore, the judge also considered the testimony of a co-worker who explained how much the employee would have worked had he not been injured and arrived at an AWW he considered just and fair to both parties. The Court of Civil Appeals agreed that the judge was allowed to depart from the 3 methods provided for in the Code. However, the Court reversed the trial court’s method because it resulted in giving the employee his best case scenario. Such a result could not be considered just and fair to the employer.

The employer also appealed the permanent and total award based on its vocational expert’s testimony that jobs were available. The Court upheld the trial court on that issue since the plaintiff’s vocational expert rendered the opposite opinion and it was within the trial court discretion to weigh the credibility of the testimony.

The employer also sought a reversal based on certain affirmative defenses. First, it asserted that the employee was guilty of a willful safety rule violation by not wearing the safety harness at the time of the subject accident. The Court refused to reverse the trial court based on that defense because the employee was not provided notice of the defense until six days before trial. Second, the employer asserted that the employee did not meet the definition of "permanent and total" because he refused to undergo vocational retraining or to accept a reasonable accommodation. The Court refused to reverse based on that defense because it was not asserted until the day of trial. Third, the employer asserted that the employee did not meet the definition of "permanent and total" because he refused reasonable medical treatment. Since that defense was not asserted during the trial at all, the Court refused to consider it. 

Practice Pointer:  The Code provides three methods to calculate an AWW. First, you take the total wages (and employer paid fringe benefits) earned in the 52 weeks prior to the injury and divide it by 52. Second, you take the total amount as set forth above and divide it by the actual number of weeks worked. Third, you take the AWW of a similarly situated employee. In the above case, the employer offered the testimony of such an employee but could not establish to the judge’s satisfaction that the employee was, in fact, similarly situated to the plaintiff. It is important to make sure that you can establish such a foundation or the testimony may be ignored. In addition, it is important to assert all available affirmative defenses in your answer and in the form of amended answers as soon as those defenses become known. Such defenses should become part of your trial stipulations which should, in turn, be part of your trial brief and/or asserted at the commencement of the trial.

In December of 2009, Medicare filed a lawsuit in the U.S. District Court for the Northern District of Alabama seeking to recover conditional payments it made to medical providers on behalf of the plaintiffs involved in a $300 million global settlement. The lawsuit cites Medicare Secondary Payer provisions in federal law that allow Medicare to recover past and future medical expenses from all parties, insured and self-insured, involved in a liability claims award or settlement that includes Medicare eligible individuals.

The settlement was entered into in 2003. By filing the lawsuit some 7 years later, Medicare is indicating that it is willing to reach back and go after any medical costs it considers owed. Of interest, is that Medicare simultaneously named insurers, settlement beneficiaries and plaintiffs attorneys in one lawsuit. This means that if Medicare’s interests are not considered, all parties to a settlement are left exposed to an action for recovery by Medicare.

My Two Cents:

At this point, Medicare appears to only be focusing on the big multiparty settlements where it stands to recover at least seven figures. However, you cannot ignore the fact that Medicare may have the resources and manpower to pursue the smaller settlements several years down the road. With the new mandatory reporting requirements in place, we are now all on Medicare’s radar!

Lana Brown v. Korner Store:

On April 17, 2009, the Alabama Court of Civil Appeals released an opinion which had the affect of dispensing with the "arising out of" part of the two part causation test. In essence, the Court stated that if you are at work ("in the course of") when the accident occurs, then your injury is compensable. This is known as the "but for" test and is the test for causation in some states. However, the Alabama Workers Compensation Code specifically provides for a two part test. The employer petitioned the Alabama Supreme Court to review the case and, fortunately, the Supreme Court just recently agreed to accept the matter. We will continue to monitor the situation and keep you posted as to all developments.

James Nichols v. Material Delivery Services, Inc.:

On January 15, 2009, a Shelby County jury returned a verdict against an employer and assessed $75,000.00 in compensatory damages and $225,000.00 in punitive damages. At trial, it was the position of the employee that he was fired solely in retaliation for filing a workers’ compensation claim which is not allowed in Alabama. It was the position of the employer that he was actually fired for waiting 6 hours to report his injury and not solely because he made a workers’ compensation claim. The employer has 42 days from the date of the verdict to file an appeal.

G.UB.MK Constructors and Eric Leslie v. Darlene Garner, as administratrix of the estate of Wendell Garner, deceased:

On January 8, 2010, the Alabama Supreme Court released this opinion wherein it reversed a jury verdict in favor of the plaintiff based on the Special-Employment Doctrine. At trial, the evidence revealed that the individually named defendant ("Leslie") was hired by GUBMK for the sole purpose of being sent to TVA as "staff augmentation." Leslie worked exclusively on TVA property and, pursuant to a required "labor agreement," was subject to the direct supervision and control of TVA. Leslie used equipment that was owned and operated by TVA. Although paychecks were drawn from a GUBMK bank account, the amount was calculated from information provided by TVA. Workers’ compensation insurance was provided and paid for by TVA and TVA could direct Leslie’s dismissal. On the day of the accident, Leslie was driving a TVA truck and assisting the plaintiff who was an actual TVA employee. Leslie accidentally backed over the plaintiff with the truck causing the plaintiff’s death. As a result, the plaintiff’s estate sued GUBMK and Leslie for negligence. At trial, the jury returned a verdict in the amount of $525,000.00. The defendants appealed asserting that Leslie was a "special employee" of TVA on the day of the accident. As such, he was a co-employee of the plaintiff and could not be sued for negligence based on the exclusivity doctrine of the Alabama Workers’ Compensation Act.

The Court agreed with the defendants and reversed the jury verdict with instructions that judgment be entered in favor of the defendants. In support of its decision, the Court noted that the substantial and unrebutted evidence at trial was that an implied contract existed between Leslie and TVA, that Leslie was performing TVA’s work on the night in question, and that TVA had the right to control the details of Leslie’s work.

Marvin Jackson v. Delphi Automotive Systems:

On January 8, 2010, the Alabama Court of Civil Appeals released this opinion wherein it considered the Statute of Limitations defense. At the trial court level, the defendant filed a motion for summary judgment because the applicable 2 years had run by the time the plaintiff filed his verified lawsuit. In response, the plaintiff asserted that the limitations period was tolled because he received full wages despite the fact he was working in a limited capacity. The argument being that the difference between what he was receiving and what he was actually owed by is employer constituted indemnity benefits. In Alabama, the 2 year limitations period for accidental injuries begins on the date of the accident or on the date of the last indemnity payment. An amended complaint was also filed which attempted to relate subsequent problems back to the original injury. The trial judge granted summary judgment asserting that all counts were time barred.

On appeal, the Court noted that payment of full wages to an employee on restricted duty could be considered "payments of compensation" in certain situations. In order to prevail on that theory, the plaintiff would have the burden of proving at trial that (1) the employer was aware (or should have been aware) that such payments constituted indemnity payments, (2) the payments had the effect of recognizing the workers’ compensation claim, and (3) the employer paid for more than he received.

Although the plaintiff has the burden of proof at trial, the burden was on the employer at the summary judgment stage. The Court reversed the trial court because the employer did not meet that burden. In addition, the Court did not feel summary judgement was appropriate on the issue of whether or not the claims presented in the amended complaint related back to the date of the original accident.

My Two Cents:

If you have work available that meets an employee’s restrictions, make sure that you do not pay that employee more than what he should be receiving (more than what he would be receiving had the accident never happened). It might also be a good idea to have the employee sign an acknowledgment that he is receiving wages as opposed to indemnity benefits.

Recently the matter of St. Joseph’s Hospital , et al., v. Ward, came before the Georgia Court of Appeals. Ward, a nurse, was at work at the hospital when she stood and turned to get a glass of water for a patient, at which point her knee “twisted” and gave out. An Administrative Law Judge (ALJ) found the injury compensable. She attempted to return to work but was unable to complete her duties. Ward then attempted light duty work before she went out for right knee replacement surgery. 

St. Joseph’s appealed the decision of the ALJ to the State Board Appellate Division, whereupon the decision was reversed. The Board concluded that Ward was not exposed to any risk unique to her employment by standing and turning. She would have been “equally exposed” to the risk whether or not she had been at work and therefore the injury was deemed not compensable because there was no casual connection between her injury and her employment. 

Ward appealed this decision to the Superior Court which reversed the State Board’s decision. St. Joseph brought their appeal to Georgia Court of Appeals, in which the court sided with St’ Joseph’s.  For an on-the-job injury to be compensable the injury must not only occur during work ours, it must also “arise out of” and be in the course of the employee’s work duties. Ward has applied for certiorari to the Supreme Court of Georgia but it has not yet been granted at this time.  

On September 28th the U.S. 9th Circuit Court of Appeals ruled that Georgia-Pacific violated the Americans with Disabilities Act (ADA) for requiring their employees to participate in an over-reaching physical capacity evaluation (PCE) (in Alabama we call them functional capacity evaluations or an FCE) before allowing them to return to work from medical leave.

Kris Indergard worked for Georgia Pacific from 1984 until 2006. In December of 2003 she took medical leave to undergo elective surgery for work related and non work related injures to her knees. She remained on leave until March 2005 and the returned to work on an unrestricted basis. Georgia Pacific policy required her to participate in a PCE before returning to work, as permitted by the Equal Employment Opportunity Commission. Generally, these PCEs are not considered medical examinations. The PCE showed she was not able to meet the physical demands of her previous position and when no other positions were available she was terminated.

Ms. Indergard filed suit claiming that the PCE was overreaching and was actually a medical examination based upon certain procedures that she was required to perform. Under the ADA, an employer can not require a medical exam unless it is shown to be job related and consistent with business needs. The ADA statue promulgates (in part): "A covered entity shall not require a medical examination and shall not make inquires of an employee as to whether such employee is an individual with a disability or as to the or as to the nature of the disability..."

Upon review of the case, the 9th Circuit Court agreed with Ms. Indergard’s position that the PCE went above and beyond what could reasonably required for a returning worker. The case has been remanded for further proceedings.

Practice Pointer: Employers and claims administrators should make sure that any PCE or other return-to-work procedures have been reviewed by their legal department.

Source: http://www.businessinsurance.com/article/20090928/NEWS/909289988

Last Friday, the Supreme Court of the United States reviewed the case of Cassens Transport Co., et al., Petitioners v, Paul Brown, et al., No. 08-1375 on its conference agenda. This was a Michigan case that claimed that the state workers’ compensation law did not preempt a cause of action for alleged Racketeer Influenced and Corrupt Organization Act (RICO) violations. While this claim was denied by the District Court, the 6th circuit Court of Appeals overturned the District Court and held that the plaintiffs adequately pleaded a pattern of racketeering activity. The Supreme Court of the United States has denied a writ of certiorari in this matter, upholding the ruling of the 6th Circuit Court of Appeals.

Now the matter will move back down to the District Court level where the allegation will be re-examined. This holds serious implications for Workers’ Compensation practitioners. What had previously been solely a state matter now has the potential to be transferred into the Federal court system. It will also introduce the possibility of criminal charges (conspiracy to commit fraud) into Workers’ Compensation matters. This could mean an increase in litigation costs in the years to come.

Practice Pointer:  The basis of the above RICO claim is that the Insurer, TPA, and Employer conspired with certain doctors to deprive the plaintiff employees from their workers' compensation benefits.  The best way to avoid such an implication is to refrain from using the same doctors in every case and to make sure that you not use doctors or other vendors with reputations which reflect obvious bias.  

Warning to Plaintiff's Attorneys:  This door swings both ways.  If you keep using the same biased chiropractors or 100% voc experts you may have a RICO claim filed against you too!   

The General Counsel for the Alabama Bar Association recently released a refined opinion concerning an opposing attorneys ability to contact an employer’s current active employees. According to the General Counsel, the opposing attorney is prohibited from contacting those employees who have authority to "commit the organization to a position regarding the subject matter of representation." In other words, the attorney cannot contact those employees with "speaking authority" for the corporation or who "have managing authority sufficient to give them the right to speak for, and bind, the corporation."

Practice Pointer:

Depending on the severity case, it may be worth your while to check with employees and see if they have been contacted. For those employees that have been contacted, You should find out what was discussed and what information was shared.

On November 17, 2009, Attorney General, Troy King, successfully convicted employee, Robert Burrows, on 3 counts of workers’ compensation fraud in the Circuit Court for Shelby County, Alabama. The employee could face up to 30 years in prison for misrepresenting the extent and duration of his injury. The fraudulent misrepresentations lead to the disbursement of more than $2,000.00 in benefits. Sentencing is set to take place on January 4, 2010.

Congratulations to the employer, the insurer, and Attorney General Troy King on another successful fraud prosecution. For those of you who suspect workers’ compensation fraud, you can contact the Workers’ Compensation Fraud Hotline at 1-800-923-2533. 

My Two Cents:  If you suspect fraud but do not have enough evidence for the Attorney General to take the case, you can still sue the claimant in civil court to recover all benefits paid as the result of fraud. The burden of proof is lower in civil court so your chances of prevailing are higher. An employer can also file a counter-claim for fraud if the claimant sues for workers’ compensation benefits.

Karen Taylor v. Goodyear Tire & Rubber Company, Inc.:   

On November 6, 2009, the Alabama Court of Civil Appeals released this opinion wherein it considered 3 issues. First, it reversed the trial court’s finding that the employee’s shoulder injury fell within the schedule. It noted multiple prior decisions where the Court held that an injury to the shoulder is not an injury to the arm. Second, it affirmed the trial court’s finding that the employee’s back was not a compensable claim. Since there was substantial evidence (including medical testimony) supporting both sides, the Court was obligated to defer to the discretion of the trial court. Third, the employee claimed that the trial court incorrectly calculated the amount of TTD owed. The Court affirmed the trial court on this issue since the trial court determined that TTD was not owed once the doctor released the employee regarding her shoulder injury. Although the doctor did not release the employee for her back problem for several additional months, this was determined not to be a factor in calculating TTD since it was not a compensable injury.

Joe Fenison v. Birmingham Spring Service, Inc. et al.:   

On November 6, 2009, The Alabama Court of Civil Appeals released this opinion wherein it considered the trial court’s Order granting the defendants’ motion to tax costs to the plaintiff. Specifically, the employee sued his employer, the third party administrator, and adjustor for compensatory and punitive damages alleging wrongful conduct in failing to abide by a previously entered workers’ compensation consent judgment. The defendants prevailed on their motion for summary judgment on January 14, 2008. The Order stated that costs were "taxed as paid." On May 20, 2008, more than 4 months after the Order was entered, the defendants filed a motion pursuant to Alabama Rule of Civil Procedure ("ARCP") 60(b) seeking relief from the cost provision and asking the court to order the plaintiff to reimburse the defendants for the costs ($57,044.65 in court-reporting bills, legal transcription bills, and legal service invoices) incurred in defending the lawsuit. The judge granted the motion in part and ordered that the plaintiff reimburse $19,529.45 to the defendants. The plaintiff appealed the Order.

On Appeal, the Court of Civil Appeals noted that the defendants were on notice of the costs "taxed as paid" provision from the date that the January 14, 2008 Order was entered. As such, the defendants should have filed a motion to alter, amend, or vacate the cost provision within 30 days of the judgment which was their right to do pursuant to ARCP 59(e). Further, the defendants could possibly have prevailed on a motion for relief based on mistake, inadvertence, or neglect pursuant to ARCP 60(b)(1) had the motion been filed within 4 months of the date of the Order. However, since the defendants waited until more than 4 months had elapsed before filing their motion, they effectively foreclosed any rights they had to such relief.

PRACTICE POINTER: Just because you prevail on the merits of a case does not mean that a judge will order the opposing party to reimburse your costs. However, there are certain situations where such a remedy may be appropriate. In such situations, it is important to make sure that your request is timely or you may be forever precluded from seeking such relief.

On June 25^th, 2009, a Jefferson County jury returned a verdict in favor of the employer in a retaliatory discharge lawsuit. It was uncontested that the plaintiff was terminated after making a workers’ compensation claim. However, it was the employer’s position that the employee was fired for failing to report for available light duty work. Specifically, the plaintiff injured her back at work and began receiving benefits. In the meantime, her doctor put her on modified duty. She subsequently received a letter from her employer informing her that they had implemented a light duty program and that she needed to drive to the company’s headquarters to start light duty. The plaintiff complained that she did not want to drive because it was a long way from her home and she was concerned about back problems while driving. Her physician, however, had not put any limitations on driving distance. As an alternative, the plaintiff asked to perform light duty closer to her home. This request was denied. When the plaintiff did not appear for light duty as directed, the employer sent her a letter terminating her employment for failing to comply with the absenteeism policy.

The plaintiff filed suit against her employer alleging retaliatory discharge. She claimed the light duty program was implemented only after she filed her workers’ compensation claim. The employer denied this allegation citing that their workers’ compensation insurance provider had suggested the light duty policy three or four months prior to its implementation. The jury ultimately sided with the employer.

We are proud to announce that the Alabama Workers’ Comp Blawg was recently selected as a LexisNexis Top 25 Blogs for Workers Compensation and Workplace Issues.   Selections were made by the LexisNexis Workers’ Compensation Law Center staff using feedback from community members and Larson’s National Workers’ Compensation Advisory Board members. Here's what they had to say about our blog:

Steward Machine Company, Inc. v. Board of Trustees of the University of Alabama, for it division University of Alabama Hospital

On October 16, 2009, the Alabama Court of Civil Appeals released this opinion concerning charges disallowed from a UAB Hospital bill in a workers’ compensation matter. UAB Hospital submitted a bill to the employer for $130,284.09 for medical services provided to an employee. After screening the bill, the employer disputed some of the charges as "unbundled or included in another service" and tendered payment of only $93,766.54. UAB Hospital filed a civil action to recover the disputed charges.

"Unbundling" occurs when a medical provider bills for each separate component of a procedure rather than for the agreed rate set for an overall procedure. The trial court’s judgment in favor of UAB Hospital was based on the trial court’s finding that none of the disputed charges were "unbundled" because UAB Hospital had never agreed to any specific global rate for any procedure in question. The trial court further found that UAB Hospital itemized its fees for each service provided in accordance with the hospital’s official fee list and in compliance with UAB Hospital’s negotiated participation agreement with the Alabama Department of Industrial Relations and the terms of the Alabama Workers’ Compensation Act. On October 22, 2008, the trial court entered judgment in favor of UAB Hospital in the amount of $37,845.69. The employer then appealed.

In affirming the trial court’s ruling, the Court of Civil Appeals noted that hospitals may charge the "prevailing rate" of reimbursement as negotiated between each hospital and the Department of Industrial Relations in accordance with Alabama Code § 25-5-77. The Court further noted that the participation agreement between UAB Hospital and the Department of Industrial Relations does allow bill screening for "unbundling" of charges and "unbundled" charges can be properly disallowed in certain cases. However, the Court affirmed the trial court by finding that the employer in this case failed to meet its burden of proof to show that UAB Hospital actually "unbundled" any fees so as to charge more than the prevailing rate of reimbursement. The Court concluded that the bill screening in this case was not appropriately conducted, and, as a result, the employer improperly reduced its payment to UAB Hospital.

An interesting development from another jurisdiction.

On October 8, 2009 a New York appeals court agreed with the New York State Workers' Compensation Board that a data entry employee should have her workers’ compensation claim considered with an inference that her joint pain be considered work-related.  

General Elec. Co. v. Baggett (Part II):

On October 9, 2009, in addition to ruling on the issue of a surviving spouse stepping into the shoes of the injured worker, the Court of Appeals laid out the test for a partial loss equaling a total loss. Upon remand after reversal of a permanent and total award for a leg injury, the Trial Court ruled that Mr. Baggett suffered a total loss of his left leg. In this case the authorized treating physician assigning an 8% rating to the body as a whole for a knee injury.

No Alabama case had ever addressed what it takes for a partial loss of a member to result in the total loss of a member. The Court of Appeals looked to Pennsylvania for their answer. The Court of Appeals went on to say that if the employee lost the use of the member for all practical purposes, then it will be considered a total loss of the member. The Court of Appeals focused on the fact that Mr. Baggett experienced "difficulty performing normal daily tasks" and struggled to perform "basic life activities." Finally the Court of Appeals stated: "The loss of the use of a scheduled member does not mean that an injured body part is of absolutely no use whatsoever."