Alabama Workers Comp Blawg

Fish Nelson :: Attorneys at Law

Saturday, April 12, 2014

Alabama Court Considers Facts Necessary to Remove Injury from Schedule

The Court of Appeals recently reversed a trial court’s decision awarding benefits outside of the statutory schedule in American Cast Iron Pipe Company v. Sharon Blackmon. The Court also reversed the trial court’s decision to grant the employee an additional authorized treating physician after she had already chosen a doctor from a panel of 4.

Blackmon worked as a pipe processor for ACIPCO, and sustained injuries to her wrist in 2008 and to her ankle in 2010. There was no dispute that the injuries were compensable, but there was disagreement over whether Blackmon’s injuries were subject to the statutory schedule.

At trial, Blackmon testified that her wrist pain did not normally extend to or affect other parts of her body, but that the pain would sometimes run up her arm. As for her ankle injury, the evidence indicated that prolonged standing would cause aching, but it did not prevent her from taking care of herself. There was no evidence that the ankle injury affected other parts of Blackmon’s body.

The trial court considered evidence provided by Blackmon’s vocational expert, and found that Blackmon suffered a 35% permanent partial disability, and awarded benefits outside of the statutory schedule. The court also granted Blackmon’s request that ACIPCO provide her treatment with a new physician of her choice.

On appeal, ACIPCO argued that the evidence did not support the trial court’s decision to award benefits outside of the statutory schedule and that the trial court should not have considered vocational evidence. The Court of Appeals agreed and stated that injuries may only be removed from the schedule when the effects of an injury to a scheduled member extend to other parts of the body and interfere with their efficiency. The Court found no substantial evidence indicating that the effects of either scheduled injury extended to or interfered with other parts of Blackmon’s body. The Court also noted that vocational evidence is generally irrelevant when compensation is limited to the statutory schedule.  

The Court also agreed that ACIPCO should not have to provide Blackmon with yet another treating physician. The evidence was clear that Blackmon had already exercised her right in selecting a new treating physician from a panel of 4, and the Court held that she was not entitled to another new doctor.

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About the Author

This post was written by Trey Cotney, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson 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.

Alabama Court Considers Temporary Flare up of a Preexisting Condition

The Alabama Court of Civil Appeals recently released an opinion wherein it considered the difference between a temporary flare versus a permanent aggravation of a preexisting condition. In Madison Academy v. Hanvey, the plaintiff, worked as a janitor on the defendant’s campus. In May and June 2011, Hanvey was exposed to chemicals at work which aggravated her respiratory system. The symptoms continued to get worse over the next few months.

It was not until September 2011 that Hanvey was finally diagnosed with a rare disease known as myesthenia gravis (MG). Her doctors treated the disease, and by March 2012, Hanvey’s symptoms were gone and her condition was stable. Although MG cannot be cured, it can be controlled with the right medication. The medical evidence showed that Hanvey’s MG existed before her exposure to the chemicals at work and was not caused by the exposure. Her doctors stated that the preexisting condition was temporarily aggravated by the chemicals, but not worsened.

The trial court found that Hanvey was totally and permanently disabled due to her exposure to the chemicals at work. On appeal, Madison Academy argued that the root of Hanvey’s disability was her MG which the evidence indicated was not caused by her employment. And since the temporary flare up had resolved, they believed they were no longer responsible for providing benefits under the Act.

The Appeals Court noted that Hanvey’s MG was aggravated, but found that there was no evidence that the chemicals had worsened the underlying condition. Once the temporary aggravation had resolved, Hanvey was back to her baseline condition and no longer entitled to benefits since there was no permanent injury. Therefore, the Court reversed the trial court’s award of permanent and total disability benefits.

My Two Cents:

The Court of Appeals has made it very clear that employers in Alabama will not be responsible for disability stemming from preexisting conditions which are not permanently worsened by a work accident. In cases where the employment temporarily exacerbates a preexisting condition, the employer is only responsible for providing benefits for the temporary disability period caused by a work accident. Any other resulting disability from the natural progression of an underlying or preexisting condition is not compensable.

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About the Author

This post was written by Trey Cotney, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson 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.

Thursday, March 27, 2014

The Alabama Exclusivity Provision Applied to a Breach of Contract Claim Against Employer

Sheila W. Austin, as admin. of the estate of Rose W. McMillan v.

Providence Hosp. and Sedgwick Claim Management. Services, Inc.

 

Released March 21, 2014

The deceased employee’s representative appealed Summary Judgment entered by the Mobile Circuit Court in favor of the employer and its claims administrator. The underlying case was based on a breach of contract claim filed by the estate against the employer and administrator. The alleged breach of contract was based on an agreement to settle future medical benefits.

On October 27, 2011, the parties agreed to settle McMillan’s future medical benefits for $75,000.00. However, McMillan was a eligible for Medicare so the parties submitted the Medicare Set-Aside proposal to CMS for approval. On November 29, 2012 CMS determined that of the $75,000.00, $35,951.00 had to be reserved for future medical care and drug expenses. The parties had agreed that the settlement was to be court approved. However, on December 9, 2012, McMillan passed away before the court could approve the settlement. Providence and Sedgwick indicated that the settlement would not be honored because it had not been approved by the court. As a result, Austin filed the breach of contract claim.

The Trial Court entered summary judgment in favor of the employer and administrator based on the exclusivity provision of the Alabama Workers’ Compensation Act. The Trial Court also concluded that the agreement was not valid because it had not been approved and could not be made valid due to the employee’s death. The Trial Court specifically said that because future medical benefits are payable without time limitation any lump sum payment would reduce the benefits available and require court approval.

Austin argued on appeal the agreement to settle was a binding contract and survived the death of McMillan pursuant to §§ 6-5-462 and 6-5-465, Ala. Code 1975. Austin argued that the agreement became unconditional after CMS approved the medicare set-aside proposal and it was not required to be court approved because the settlement exceeded the monetary value of the future medical benefits as determined by CMS. As a result, Austin argued that § 25-5-56, Ala Code 1975, did not require approval of the settlement by the court.

The Court of Civil Appeals did not address Austin’s argument because Austin failed to address the Trial Court’s primary ground for entering summary judgment, the exclusivity provision. The Court of Civil Appeals stated that Austin failed to argue or explain how the subject claim would fall outside of the exclusivity provision. The Court of Civil Appeals stated that because the Trial Court had an alternate basis for granting summary judgment, if the appellant fails to show error as to each basis, the appellant waives any argument on those grounds and this results in an automatic affirmance of the judgment.

My Two Cents:

While the Court of Civil Appeals did not actually rule on Austin’s argument, I find it interesting that they chose to write an opinion pointing out the exclusivity provision and breach of contract. This is the first time I have seen the exclusivity provision and breach of contract mentioned at the same time. The exclusivity provision prevents recovery by any other method, unless provided for under the Act, for injury caused by an on-the-job injury. § 25-5-52, Ala. Code 1975. The question created by this case is, does a breach of contract claim qualify as a claim based on the workers’ compensation injury? The argument could definitely be made that once a valid contract to settle is entered into, that an attempt to recover under the theory of contract is no longer based on the injury itself. This would then fall outside of the exclusivity provision.

In this case it does not appear there was a valid contract to enforce because the parties had agreed to have it approved by the court making the contract contingent upon court approval. Had that not been the case, the fact that the payment was in excess of what CMS determined necessary to cover future medical benefits may have resulted the agreement not being continent upon court approval. § 25-5-56 only requires court approval when settlement is for an amount less that the amount stipulated by the Alabama Workers’ Compensation Act. Therefore, if there had not been a contingency the estate might have succeeded in arguing the exclusivity provision does not apply to a breach of contract claim because the recovery is based on the contract and not the workers’ compensation injury.

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ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish Nelson, 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. He is the immediate past chair of the ABA/ TIPS Workers’ Compensation and Employers’ Liability Committee.

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.

1099 Not the Only Factor to be Considered When Determining Whether Alabama Contractor Qualifies as Employee

On March 14, 2014, the Alabama Court of Civil Appeals released its opinion in the case of Michael Brown v. Dixie Contracting Company and Salter’s Exterminating Company, Inc. In that case, Brown sued Dixie and Salter’s for injuries he allegedly suffered in an automobile accident while working for them. The vehicle that Brown was driving at the time of the accident was owned by the owner of Dixie. Dixie and Salter’s are related companies, as the owner of Dixie was a majority shareholder in Salter’s. The two companies operated out of the same building, and they shared a secretary and receptionist. Salter’s performed termite inspection and extermination services, and Dixie would often repair termite damage discovered through Salter’s inspections. Brown alleged Dixie and Salter’s were essentially the same company, and that his injuries occurred in and arose out of his employment with both defendants. Dixie contended that Brown did not work for Dixie, and Salter’s contended that Brown was an independent contractor.

Brown testified that at the time he was hired, the owner of Dixie never specified whether Brown was being hired as an employee or independent contractor. He also testified that he did not sign a contract with Salter’s or Dixie. Brown testified that he considered himself to be an employee and that his supervisor told what time to be at work and when he could leave. Brown testified that his supervisor would tell him on any given day whether he was to sell pest control services or was to work construction. Brown testified that on some days he would sell pest control services for Salter’s, and on other days, he would perform construction work for Dixie. Brown further testified that when performing inspections for Salter’s, he was instructed to call Dixie if any termite damage was located so that Dixie could quote the repairs. Salter’s payroll records listed Brown as a 1099 "employee" who was to be paid a "draw" against commissions and sales. However, those same records indicated that Brown was actually paid at a flat rate of $80.00 per day for sales work, while he was paid at an hourly rate for construction work he performed for Dixie. Brown’s supervisor testified that he had hired Brown to work for Salter’s as a subcontractor in sales, but that Brown was also an "at will employee" that could be terminated for any reason. He testified that Brown was required to report to work by 8:00 a.m. each day. The defendants produced evidence that Brown was always paid by Salter’s and never by Dixie, and that Brown only performed construction work after the accident. However, Brown’s evidence also established that several other employees performed work for Dixie but were paid by Salter’s.

The trial court found that Brown was an independent contractor of Salter’s and that Brown did not perform any work for Dixie until after the alleged accident occurred. Based on this, the trial court denied workers’ compensation benefits. Brown appealed on the grounds that the trial court’s order did not include adequate findings of fact and conclusions of law, and was not supported by substantial evidence. The Alabama Court of Appeals agreed that the findings of fact and conclusions of law set out by the trial court were insufficient, which allowed them to look to the record in order to determine whether substantial evidence supported the trial court’s determination. The Court of Appeals noted that the primary factor in determining whether a worker is an employee or an independent contractor is whether the purported employer has reserved the right to control the manner in which the worker performs the duties of the work. In order for a worker to be considered an employee, the prospective employer must retain the right to direct not only what shall be done but also how it shall be done. The Court further pointed out that the four factors to be considered in determining whether an "employer" has retained the right of control include: (1) direct evidence demonstrating a right or an exercise of control; (2) the method of payment for services; (3) whether equipment is furnished; and (4) whether the other party has the right to terminate the employment. However, the Court also pointed out that no one fact by itself can create an employer/employee relationship, and that the retention of control necessary to establish such a relationship is determined on a case-by-case basis considering the totality of the evidence.

Based on the evidence, the Court of appeals found that Salter’s controlled nearly every aspect of Brown’s employment. Salter’s controlled whether Brown would perform tasks in pest control sales or construction as Salter’s or Dixie needed. Salter’s controlled the manner in which Brown would be paid for the different jobs he did and capped his weekly pay at $400.00. Salter’s provided the very equipment he was driving at the time of the accident. There was no contract between Brown and his employers that would prevent Brown from quitting his job at any time. Based on the totality of the evidence, the Court found that the trial court’s Order was not supported by substantial evidence, and that Brown was an employee. The case was then remanded to the trial court to determine the amount of workers’ compensation benefits Salter’s owes to Brown.

MY TWO CENTS

Employers need to be aware that paying a contractor via a 1099 as opposed to a W-2 does not necessarily preclude the contractor from recovering workers’ compensation benefits in the event of an injury. As this case demonstrates, if an employer retains the right to set the employee’s schedule, dictates which tasks he is to perform on any given day, provides his equipment, and pays him like a salaried or hourly employee, the contractor will be considered an employee.

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ABOUT THE AUTHOR

This article was written by Charley M. Drummond, Esq. of Fish Nelson, LLC. Fish Nelson 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.

 

Thursday, February 27, 2014

Alabama Car Accident Probably Handled Differently in New Jersey

St. Louis attorney, J. Bradley Young, recently posted an interesting blog article entitled This Story Shows Why Employers are Frustrated with Workers Comp Judges. In the article, he reported on a New Jersey case in which the claimant was involved in a car accident while driving off of her employer’s property. She was actually in the process of turning out of the employer’s property at the time of the collision. The Coming and Going Rule would have been an excellent defense except for the fact that it was established that the rear bumper of the car was still hanging over the employer’s property at the time of impact. Since New Jersey is a Positional Risk Doctrine state, it was easy for the employee to win once the Court determined that she was, at least partially, on her employer’s property. In Positional Risk Doctrine states, the employee only need show that the accident would not have happened but for her employment. In other words, if she had not been leaving work that day, the accident would have never happened.

MY TWO CENTS:

If this had happened in Alabama, the result would have been different. Assuming that the Alabama judge also agreed that a hanging bumper thwarted the Coming and Going Rule, the employee would still have had her work cut out for her. The reason being that Alabama is an Increased Risk Doctrine state. This means that the employee must prove that the employment somehow increased the risk to the employee of such an accident occurring. Since car accidents happen to people on and off the job, she would have had to show that the employer’s exit was located in a place that made her more susceptible to getting hit. Of course, if that was the case, the employer would have wanted to accept it as a workers’ compensation matter in order to be afforded the protections of the Exclusivity Doctrine.

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About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson 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 205-332-3430.

Monday, February 24, 2014

Contract for Hire in Alabama Does not Necessarily Mean Alabama Benefits

Ex parte Southern Erectors, Inc.

Petition for Writ of Mandamus

On February 21, 2014, the Alabama Court of Civil Appeals granted Southern Erectors, Inc.’s (SEI) Petition for Writ of Mandamus. The trial court had denied SEI’s summary judgment motion that was based on the Alabama court not have subject matter jurisdiction over the on the job injury that occurred in Kansas. The Alabama Court Civil of Appeals agreed with SEI and remanded the case with an order to dismiss the workers’ compensation case based on lack of subject matter jurisdiction.

The employee lived in Alabama and learned of a job opening in 2010 with SEI in Wyoming. He left Alabama and traveled to Wyoming for the job. The plaintiff worked on several different job sites in various states over the year for SEI. In February of 2011, the employee, while in Alabama, learned of another job with SEI in Kansas. Once he was told the date he should arrive he left and, upon arrival, completed a new application, Kansas Employee’s Withholding Certificate and stayed in a Kansas Hotel while performing the job. On March 14, 2011 the employee was injured while performing his job in Kansas. He was provided benefits under Kansas Workers’ Compensation and even completed a Kansas Workers’ Compensation form.

On March 13, 2013, the employee file suit for workers’ compensation benefits under the Alabama Act. In agreeing with SEI and ordering that the workers’ compensation claim be dismissed, the Alabama Court of Civil Appeals stated that the trial court did not have subject matter jurisdiction over the claim. The Court of Civil Appeals pointed out that in order for an out of state injury to be compensable under the Alabama Workers’ Compensation Act the requirements of §25-5-35(d) must be met. Subsection (2) and (3) of this section applicable to this case state that benefits are owed for an injury that occurs out side of this state if benefits would have been owed had the injury occurred in Alabama, provided that at the time of injury (2) he was working under contract for hire made in this state in employment not principally localized in any state, and (3) he was working under a contract of hire made in this state in employment principally localized in another state whose workers’ compensation law was not applicable to his employer. The Court of Civil Appeals found that the employee impliedly accepted the job offer by traveling to Kansas. See Ex parte Robinson, 598 So. 2d 901, 904 (Ala. 1991). Therefore, the employee was under a contract for hired entered into in Alabama. However, the Court of Civil Appeals stated that this conclusion does not automatically mean that the Alabama Workers’ Compensation Act applies. See Ex parte Fluor Corp., 960 So. 2d 701 (Ala. Civ. App. 2006). §25-5-35(d)(2)&(3) requires that the court also consider the principal location of the employment as defined in §25-5-35(b). The Supreme Court stated in Ex parte Flour Corp. that principally localized pursuant to §25-5-35(b) merely means the employee worked for the employer at a designated place within a state.

The Court of Civil Appeals considered the following factors to determine the principal location of employment in the present case: (1) the application was completed in Kansas, (2) work was being performed in Kansas at the time of injury, (3) he was living in a Kansas hotel at the time of the accident, (4) he completed Kansas tax withholding forms and (5) SEI was operating out of Kansas for that job creating a place of business there. For these reasons, the Court of Civil Appeals found that the employee’s employment was principally localized in Kansas. Therefore, §25-5-35(d)(2) would not apply because SEI was principally localized in Kansas and §25-5-35(d)(3) would not apply because there was no evidence that Kansas workers’ compensation laws were not applicable to SEI.

The Court of Civil Appeals rejected the employee’s argument that the employer had to have a permanent and continuous presence in the state to establish a principal location in the state (the employee had cited an Alabama Federal case that used this language but that case applied to venue and not §25-5-35(d)).

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ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish Nelson, 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. He has been selected as a "Rising Star" by Super Lawyers. He is the past Chair of the ABA/ TIPS Workers’ Compensation and Employers’ Liability Committee. Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). 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.

Saturday, February 01, 2014

American Bar Association 2014 Workers’ Compensation Midwinter Seminar and Conference

The Annual Midwinter Conference will be held this year in Chicago from March 13 until March 15 at the Conrad Chicago Hotel. It is a jointly sponsored by the ABA Tort Trial & Insurance Practice Section and the Section of Labor an Employment Law.

The Seminar begins on Thursday afternoon to allow for morning travel and will finish up at mid-day on Saturday with a presentation on mediation and negotiation techniques presented by the National Association of Workers’ Compensation Judges and the College of Workers’ Compensation Lawyers.

New this year will be several sessions specifically designed for the Medical community such as back-to-back sessions on Thursday, The Litigators Guide to Understanding Medicine and Evaluating & Treating Back Pain and Healthcare Reform’s Impact Nationally and on Workers Compensation, and a presentation on Friday, CMS Regulations and Medicare Legislation.

This not to be missed program is open to all. The stellar speakers will discuss rainmaking, social media and ethical considerations, MSAs, healthcare reform’s impact on workers’ compensation, insurance premium fraud, opioid use and abuse, best practices, negotiation and mediation techniques, and diagnostic medicine.

Following this blockbuster program, the College of Workers’ Compensation Lawyers will hold their annual dinner on Saturday evening. This is an invitation only event and tickets are required.

For more information, please feel free to contact Mike Fish or Josh Holden. Both are former ABA TIPS Committee Chairs and would be happy to assist you. Contact information below.

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Mike Fish and Josh Holden are both members of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this post, please feel free to contact Mike at mfish@fishnelson.com or 205-332-1448 or Josh at jholden@fishnelson.com or 205-332-1428.

 

Monday, January 27, 2014

Supreme Court Affirms Summary Judgment in Favor of Special Employer

On January 24, 2014, the Supreme Court of Alabama affirmed the Circuit Court of Shelby County Alabama’s decision, without opinion, in the case of Vinson v. G & R Mineral Services, Inc. However, Chief Justice Roy Moore pinned an interesting dissent. The employee, David Vinson, Jr., sought employment with G & R, a contractor that provided services to Chemical Line Company of Alabama in Calera. G & R then directed Vinson to a temporary employment agency, Diversified Sourcing Solutions (DSS), to apply for the job. Vinson was then hired by DSS to work for G & R at the Chemical Lime bag house, where his job involved changing out lime filters. On his second day of employment, Vinson allegedly inhaled lime dust, had to be hospitalized, and never returned to work. Vinson sought workers’ compensation benefits from DSS. However DSS’s workers’ compensation carrier later became insolvent, so the Alabama Insurance Guarantee Association (AIGA) assumed responsibility for paying for Vinson’s care. AIGA eventually discontinued the payment of benefits, and Vinson then filed a lawsuit against G & R seeking workers’ compensation benefits. However, G & R’s workers’ compensation carrier convinced Vinson to dismiss the action on the grounds that DSS, and not G & R, was Vinson’s employer.

Vinson then filed an action for negligence against G & R. G & R moved for summary judgment, asserting that it was a "special employer" of Vinson, and was therefore immune from tort liability. Vinson moved to strike G & R’s special employer defense. The trial court found that DSS was merely a temporary employment agency and that Vinson had an implied contract of special employment with G & R. Based on these findings, the trial Court entered summary judgment in favor of G & R. On appeal, Vinson argued that G & R’s insistence in the workers’ compensation case that it was not his employer, created a genuine issue of fact as to whether it should be considered Vinson’s employer in the negligence case. In support of that position, Vinson produced a letter to the Mine Safety and Health Administration (MSHA) from G & R’s safety officer stating that Vinson was an employee of DSS and not G & R, and that DSS was paying Vinson’s workers’ compensation benefits. Despite this evidence, the Supreme Court upheld the trial Court’s ruling.

In his dissent, Judge Moore stated that G & R’s opportunistic switch from non-employer to employer was sufficient to raise a factual question as to whether G & R was a special employer immune from tort liability under the exclusivity provisions of the Act. Judge Moore stated that since that question was not one purely of law, but of fact, reasonable persons might draw different conclusions as to whether G & R was a special employer. Based on that, Judge Moore stated that the issue of whether G&R was a special employer should have been one decided by the jury.

MY TWO CENTS

Although Judge Moore was the only judge that dissented, I believe that the principals of judicial estoppel support his opinion. A party is generally precluded from taking a position in a case which is contrary to a position they have taken in earlier legal proceedings. Employers need to be aware that if they deny that they are the employer, they may be estopped from seeking protection under the exclusivity provisions of The Alabama Workers’ Compensation Act in the event a tort claim is later brought by the employee. Therefore, it is critical that employers and their attorneys consider the pros and cons of pleading tort immunity at the outset of any case.

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ABOUT THE AUTHOR

This article was written by Charley M. Drummond, Esq. of Fish Nelson, LLC. Fish Nelson 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, December 30, 2013

Alabama Enacts New Pain Management Laws

A recent report from the Centers for Disease Control and Prevention (CDC) found that Alabama was among the top twenty (20) states nationally in number of drug overdose deaths each year. In an effort to combat this problem, the Alabama legislature recently passed several new laws to regulate pain management clinics and impose stiffer penalties upon persons who doctor shop to illegally obtain prescription pain killers.

The Alabama Pain Management Act requires that all physicians who provide pain management services must now register with the Board of Medical Examiners by January 1, 2014. The Act defines pain management services as those medical services that involve the prescription of controlled substances in order to treat chronic non-malignant pain. The registration requirement pertains to any physician or clinic that advertises or holds themselves out to be a provider of pain management services. Additionally, the Act requires that all pain management clinics appoint a medical director, who must have an unrestricted Alabama Medical License and must meet certain training criteria. Each clinic’s medical director must also register with the Alabama Department of Public Health’s Prescription Drug Monitoring Program.

Another related new law provides that physicians can now allow their staff members to access the Prescription Drug Database to verify patients’ prescription history. Previously, only licensed physicians could access the database. The new law also allows Medicaid to access the database to check the controlled substance prescription history of patients who are enrolled in Medicaid. 

Finally, another new law provides for stiffer penalties for those convicted of doctor shopping. The law provides that it shall be unlawful for any person to deceptively obtain a controlled substance from a physician by intentionally and knowingly withholding information from the physician that the person has obtained a prescription for the same controlled substance or another controlled substance of similar use from a different physician. Under the new law, doctor shopping is a Class A Misdemeanor upon the first offense, and a Class C Felony after four convictions.

My Two Cents:

It remains to be seen what, if any, impact these new laws will have on employers and injured employees involved in workers’ compensation claims. The new laws should make it easier for doctors to identify claimants who are doctor shopping, diverting, or abusing drugs. However, it is also forseeable that the new requirement that pain clinics appoint a medical director may effectively close the doors of the smaller pain clinics, thus decreasing the number of options available. In any event, hopefully the new laws will help carry out their intended effect of decreasing the ever-growing prescription drug abuse problem in the state.

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ABOUT THE AUTHOR

This article was written by Charley M. Drummond, Esq. of Fish Nelson, LLC. Fish Nelson 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.

Wednesday, October 30, 2013

Australian High Court Holds Sex Injury During Business Trip Not to be Compensable

Now that I have your attention, let me elaborate. An Australian federal employee was on a business trip when she met up with a man and had sex with him in her hotel room. While engaged in the act of intercourse, a light fixture above the bed fell onto her face causing injury to her nose and mouth. In addition to her claim for physical injuries, the claimant alleged depression.

The administrative tribunal denied benefits because it determined that sex is not an ordinary incident of an overnight stay such as showering, sleeping, or eating.

A Federal Court Judge overturned the decision analogizing the sex act to playing a game of cards. In his opinion, if she had been injured while playing cards in her room it would be compensable and, therefore, she should also be compensated for her sex injuries. There was no comment on how a light fixture might come loose while playing cards but, then again, there was also no comment on how the light fixture came loose during the sex act.

Fortunately for the employer, the High Court agreed with the rational of the administrative tribunal and ruled that benefits were not owed. The Australian Employment Minister hailed the ruling as a victory for common sense.

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About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson 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 205-332-3430.

Saturday, September 28, 2013

Alabama Supreme Court Says Post-Accident Investigation Reports are not Always Protected as Work Product

On September 27, 2013, the Alabama Supreme Court released its opinion in Ex parte Schnitzer Steel Industries, Inc. wherein it addressed the discoverability of post-accident investigation reports. The subject report was prepared following a workplace accident resulting in an amputation. The trial court initially ruled that the report was privileged and not discoverable. The judge later reversed that ruling and ordered that the report be produced. The employer then petitioned the Alabama Supreme Court for a writ of mandamus directing the judge to vacate the order.

On appeal, the employer argued that the report was prepared in anticipation of litigation and, thus, protected as work product. On the flip side, the employee argued that the employer conducted post-accident investigations and prepared reports containing the findings of the investigation for all accidents regardless of whether or not there was any anticipation of litigation.

In this case, the employer’s workers’ compensation manager testified that there was no written policy that a post-accident investigation be undertaken and that such a report is only prepared when litigation is anticipated. The employer’s safety director, however, testified that the report was prepared in the normal course of business and to address safety concerns and not in anticipation of litigation. The Court resolved the inconsistencies between the two deponents by pointing out that, while it is necessary for the report to be prepared in anticipation in order to be afforded the protection of the work product doctrine, it does not have to be the sole reason.  Since it was reasonable under the circumstances for the employer to assume that litigation could be expected, the Court granted the petition and issued the writ directing the trial court to vacate its order granting the motion to compel the discovery of the report.

My Two Cents:

This opinion makes it very clear that employers must reasonably expect future litigation when preparing investigative reports in order to enjoy the protections of the work product doctrine.  A standard post-accident investigation report may end up being discoverable unless it can be shown that there was some perceived threat of a lawsuit at the time the report was created.  For this reason, it is advisable to do something different than your standard operating procedure when you do expect litigation such as involve an attorney in the investigation phase of a claim.

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About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson 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 205-332-3430.

 

Wednesday, September 25, 2013

Alabama Court of Appeals Rules that Employer is not Entitled to Credit for Wages Paid to Injured Employee

On September 20, 2013, the Alabama Court of Civil Appeals released its opinion in the case of Malone v. Steelcase, Inc., dealing with the applicability of § 25-5-57(c)(3) of The Alabama Workers’ Compensation Act. § 25-5-57(c)(3), known as the set-off statute, provides that an employer is allowed a set-off against compensation benefits owed to an injured employee when the employer continues the salary of the employee during the period in which benefits are owed. Malone suffered an injury to her lower back occurring in and arising out of her employment with Steelcase, but she was able to return to her job earning wages equal to those she was earning prior to the injury. The trial court awarded permanent partial disability benefits for a 25% disability to Malone’s body as a whole, in the amount of $81.54 per week. However, the trial court also awarded Steelcase an offset in the amount of $67.30 per week for wages Steelcase paid to Malone after she was placed at maximum medical improvement, pursuant to § 25-5-57(c)(3). Malone appealed, and the Court of Appeals reversed the trial court’s decision.

Malone argued that § 25-5-57(a)(3)i, which is often referred to as the "return to work statute" was controlling, and that under that statute, her compensation for her injury was to be based on her physical disability rating, without consideration for loss of earnings capacity. Malone argued that under that statute, Steelcase was not entitled to a set-off, because § 25-5-57(c)(3) did not apply to her situation. In reaching its decision, the Court of Appeals stated that it agreed with Malone, because when two statutes conflict, the "more specific" statute is controlling, and § 25-5-57(a)(3)i is the more specific statute. The Court further stated that § 25-5-57(a)(3)i would be rendered meaningless under the interpretation of the set-off statute advocated by Steelcase. The Court of Appeals noted that benefits awarded in cases where the return to work statute applies, like scheduled benefits, should be awarded regardless of whether an employee is receiving full wages. 

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MY TWO CENTS:

The Court of Appeals’ analysis begs the question: So exactly when does the set-off statute apply? The Court of Appeals’ ruling is interesting in that it found that § 25-5-57(a)(3)i would be rendered meaningless if the employer was allowed an offset against an award for wages paid in situations where the employee is earning wages equal to her pre-injury wage. The decision further implies that the set-off statute does not apply in scheduled member injury cases either, for the same reason. The only other statute that applies to permanent partial disability awards is § 25-5-57(a)(3)g, which provides that an employee’s compensation for injury is equal to 66 2/3% of the difference between her average weekly earnings at the time of the injury and the average weekly earnings she is able to earn in her partially disabled condition. It certainly seems that if the legislature intended that the set-off statute only apply to awards made under § 25-5-57(a)(3)g that the statute would clearly and unambiguously state as much. However, the answer is contained in the statutory language concerning the employer continuing the salary of the employee. It appears that the Court of Appeals’ interpreted it to mean when the employer continues the full salary of the employee. In other words, when the employer is paying the employee her full wages for either performing less work, or for performing a less demanding job, the employer is entitled to a set-off, but when the employee is performing her regular job for her regular wages, the employer is not entitled to a set-off.  

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ABOUT THE AUTHOR

This article was written by Charley M. Drummond, Esq. of Fish Nelson, LLC. Fish Nelson 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.

Thursday, September 12, 2013

Alabama Court of Civil Appeals Reverses Permanent and Total Award

On September 9, 2013, the Alabama Court of Civil Appeals released its opinion in SouthernCare, Inc v. Margaret Cowart wherein it reaffirmed that a mere possibility does not establish medical causation. Although it affirmed the trial court’s finding of medical causation, it reversed the permanent and total disability award and remanded it for the trial court to determine the level of disability.

The facts before the Court involved a preexisting back injury and then 4 separate accidents injuring the lower back over a 3 year period with SouthernCare, Inc. Prior to a 2004 fall on the job, Cowart had a preexisting back injury but she had been working without restriction. After the 2004 fall and injury, Cowart had periods of disability but returned to full duty. She then had 2 incidents in 2005 and 2 in 2007 where she felt pain in the same region and of the same nature as she did after the 2004 fall. After the 2007 injury was determined not to be work related by the employer, Cowart returned to work but testified that she worked in constant pain. Cowart suffered another accident on the job injuring the same area of the back but testified that the pain was even more excruciating this time.

Cowart was seen by several different doctors and all the medical records indicated that the tests were unremarkable and that Cowart’s symptoms were degenerative or related to fibromamyalgia and not work related. After the June 2007 injury Cowart was treat by Dr. James White. Dr. White opined that without further testing he could not say if stenosis was causing the symptoms or if there was a herniated disk below the stenosis. Dr. White also testified that without further testing he could not say if the injury was work related. He did testify that the back pain could be due to fibromyalgia but the fact that Cowart did not have radiating pain prior to the first fall in 2004 indicated that fibromyalgia was not causing the current symptoms.

The trial court considered the medical records, Dr. White’s testimony and heard the plaintiff’s testimony in a compensability hearing and found the injury compensable and ordered the tests requested by Dr. White. The trial court later held a disability hearing with the only testimony being the employer’s vocational expert, which resulted in a permanent and total disability award. The employer then appealed the compensability decision and the permanent and total disability award.

The Court of Civil Appeals reviewed the testimony but did not re-weigh the evidence as it related to the decision on medical causation and permanent and total disability. The Court noted that the applicable standard for medical causation set forth by the Alabama Supreme Court was the evidence must establish more than a mere possibility that the injury was caused by the work place accident. Ex parte Southern Energy Homes, 873 So. 2d 1116, 1121-22 (Ala. 2003). The court also stated the "expert medical testimony is not always required to establish medical causation; however, an employee’s testimony, while not always insufficient alone to establish medical causation, cannot establish medical causation when ‘the evidence as a whole weighs heavily against finding the [employee’s] testimony alone to be substantial evidence of medical causation.’" Id at 1122. In the instant case the Court of Appeals noted that the only record that specifically said the injury was not related was from a doctor that reviewed the wrong MRI after the first 2007 incident. In addition, Cowart’s doctors stated that her symptoms were related to degenerative problem and/or fibromylgia. The Court then turned to the only detailed opinion on the subject of medical causation, Dr. White’s deposition testimony. This testimony stated that without further testing he could not say if the symptoms were related to the falls at work or not but that it was not until after the fall that Cowart reported radiating pain. The Court of Appeals then turned to Cowart’s testimony to determine if, when viewed with all the evidence, it could provide substantial evidence as to medical causation. Cowart’s testimony was that prior to the 2004 fall her fibromylgia had seldom caused her to miss work. She also testified that after the first fall she had returned to work at full duty with several subsequent incidents causing severe pain in the same region of her back. Cowart further testified that after the first incident in 2007 she returned to work but was in constant pain. The Court of Appeals pointed out that the trial court may infer medical causation from circumstantial evidence that indicates the employee was working normally before the incident, but afterwards the symptoms appeared and continued. Based on this, the Court of Appeals found that substantial evidence was present for the trial court to find medical causation.

The Court of Appeals did find that there was not sufficient evidence to support the permanent and total disability award. They pointed to Cowart’s testimony that she had been able to perform her duties despite her pain, her testimony that she desired to return to work and the employers vocational expert stating she had transferable skills and no loss of earnings capacity. Based on this, the Court of Appeals found there was not sufficient evidence to support a permanent and total disability award and the trial court should review the evidence again to determine the level of disability.

Of Note: 

It has long been the position of the Alabama Appellate Courts that they are not to re-weigh the evidence in a workers’ compensation appeal. However, Judge Moore, in his concurring opinion, stated that when the legislature eliminated the certiorari review of workers’ compensation case in 1992 and created the substantial evidence standard, the standard of review for an appeal also changed. Judge Moore stated that the prior standard of review applicable to certiorari review only required support by any evidence, not substantial evidence. Therefore, by changing to the substantial evidence standard the legislature intended to change the standard of review and allow the Court of Appeals to re-weigh the evidence. Judge Moore also asserted that, under the current ruling by the Alabama Supreme Court, the Court of Appeals cannot re-weigh the evidence and must leave the trial court’s ruling alone if there is any evidence that supports the trial court’s ruling, which is the same as the certiorari review pre 1992 amendment. With the legislature creating the substantial evidence standard, Judge Moore opined that the Court of Appeals should be allowed to re-weigh the evidence to establish if there is substantial evidence and not just any evidence to support the decision.

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ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish Nelson, 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. He is the current Chair of the ABA/ TIPS Workers’ Compensation and Employers’ Liability Committee. He is also on the Board of the Alabama Workers Compensation Organization and a member of numerous other associations and organizations. Holden has been selected as a "Rising Star" by Super Lawyers.

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 16, 2013

Alabama Court of Civil Appeals Reverses in Round Three of Scheduled Injury Case

On August 16, 2013, The Alabama Court of Civil Appeals released its opinion in the matter of DuBose Construction Company, LLC v. James Simmon. This was the third time this case had come before the Court. The subject injury was to the employee’s right knee which occurred as the result of a fall at work. At trial, the judge found the matter compensable and assessed a 15 percent permanent partial loss of the employee’s ability to earn. The employer appealed on the grounds that the judge should not have considered evidence of vocational loss or assessed a whole body impairment where the injury was to a scheduled member. The Court of Civil Appeals agreed and reversed the judgment. Four months later, the trial court dismissed the case in its entirety. After a failed attempt at mediation, the employee filed a petition for writ of mandamus asking the Court to order the trial court to vacate its dismissal. The Court granted the petition. The employer then filed a petition for a writ of mandamus to the Alabama Supreme Court in an effort to have the Court of Civil Appeals’ mandamus order vacated. That petition was denied.

The evidence at trial revealed that the employee had a torn medial meniscus in his right knee. While performing an arthroscopy, the treating physician discovered that the employee also had chondromalacia which was described as a wear and tear, arthritic issue. Upon reaching maximum medical improvement, the employee was released to return to work at full duty with zero restrictions and no medical impairment. In his trial deposition, the treating physician testified that any complaints of pain would be due to the arthritic issue.

At trial, the employee testified that his knee injury caused him to walk with a limp and that his back was off balance. On remand, the trial judge relied on this testimony to remove the knee injury from the schedule and consider evidence of vocational disability. The employer then appealed on the grounds that the employee’s testimony failed to prove that his knee injury had any effect on other parts of his body. 

The Court of Civil Appeals agreed with the employer. In reversing and remanding the matter, the Court relied on the Drummond test. In Ex parte Drummond, the Court adopted the following test: If the effects of the loss of the member extend to other parts of the body and interfere with their efficiency, the schedule allowance for the lost member is not exclusive. In applying this test, the Court noted that the employee never actually testified that he was having lower back problems. The evidence further revealed that the employee never received any medical treatment for any other body parts. In fact, his treating physician testified that the employee never complained about any body part other than his knee.

In reversing and remanding the matter, the Court instructed the trial court to determine what, if any, disability the employee had to his right leg.

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About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson 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 205-332-3430.

 

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Tuesday, August 13, 2013

Alabama Tort Claims Involving Workplace Conditions Are Precluded by the Exclusivity Doctrine

On August 9, 2013, the Alabama Court of Civil Appeals released its decision in Devero v. North American Bus Industries, in which it upheld summary judgment in favor of North American Bus Industries (NABI) for various tort claims Devero alleged arose out of his employment with NABI.

In February of 2005, Devero and seven other employees of NABI filed a lawsuit in the Circuit Court of Calhoun County, Alabama against NABI and two other defendants, PPG Industries and E.I. DuPont de Nemours, asserting claims of fraud, negligence, wantonness, failure to warn, civil conspiracy, and infliction of emotional distress stemming from alleged exposure to hazardous chemicals in the workplace at NABI. In January of 2006, the trial court entered an Order stating that all of the plaintiff’s claims against NABI were governed by the exclusivity provisions of the Alabama Workers’ Compensation Act. The trial court ordered Devero to restructure his Complaint to state claims under the Act. Devero then filed a new Complaint for workers’ compensation benefits, asserting that he had been exposed to toxic chemicals, deadly solvents, and spray paint particles that had damaged his internal organs and caused him to develop peneumoconiosis. NABI filed an Answer denying all of Devero’s allegations and then moved for summary judgment, asserting that there was no evidence that Devero had been exposed to any toxic substances at work, and that there was no evidence to indicate that Devero suffered from any illness or occupational disease related to his employment. In support of its Motion for Summary Judgment, NABI submitted Devero’s deposition testimony, the medical records of Devero’s personal physician, and hospital records pertaining to Devero’s treatment for his alleged peneumoconiosis.

After consideration of all the evidence, the trial Court granted NABI’s Motion for Summary Judgment, finding that Devero had not presented any evidence of legal or medical causation for his alleged injuries and/or occupational disease. However, the trial Court’s Order did not contain specific findings of fact and conclusions of law addressing whether Devero was suffering from an injury or disease that occurred in and arose out of his employment with NABI. 

Devero appealed. On appeal, the Court of Civil Appeals held that an Order granting a Motion for Summary Judgment in a workers’ compensation case need not contain findings of fact and conclusions of law, thus overturning a prior case of Farris v. St. Vincent’s Hospital, 624 So. 2d 183 (Ala. Civ. App. 1993). Devero also continued that the trial Court erred in failing to allow him to proceed with his tort claims, which he alleged were outside the scope of the Alabama Workers’ Compensation Act. However, the Court of Appeals held that although Devero’s claims against NABI involved allegations of intentional or reckless conduct, those claims dealt with workplace conditions "within the bounds of an employer’s proper role", and therefore, those claims were precluded by the exclusivity provisions of the Alabama Workers’ Compensation Act.

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ABOUT THE AUTHOR

The article was written by Charley M. Drummond, Esq. of Fish Nelson, LLC. Fish Nelson 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.

Wednesday, July 31, 2013

Portions of Post-Offer Medical Examinations May Violate Federal Law

The EEOC filed lawsuits this past May, claiming that employers had violated the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act (ADA) when they required applicants to submit to post-job-offer medical exams. Though GINA and ADA do not bear directly on workers’ compensation issues, they do affect post-job-offer medical examinations which are often important aspects of workers’ compensation claims.

In EEOC v. Fabricut, Inc. and EEOC v. Founders Pavilion, Inc., the employers allegedly required applicants to undergo medical examinations, which included questions about family medical histories. In both cases, the employers may have withdrawn job offers based on the applicants’ answers to these questions. In doing so, the EEOC claimed the employers violated GINA, which prohibits an employer from requesting, requiring or purchasing genetic information from applicants, including family medical histories.

Notably, the ADA and GINA do not prevent employers from requiring applicants to undergo any medical examinations, but they do limit the scope of such exams. Employers may require a medical examination that is designed to detect disabilities that would directly affect an applicant’s ability to perform the physical duties of a job. Based on the results of this type of limited medical exam, the applicant may be found physically incapable of safely performing the duties of the job, and unless a reasonable accommodation can be made, the employer may withdraw a job offer.

Practice Pointer:

Employers and their counselors should review post-offer medical examinations, if any, and make sure the exam is limited to gathering information that is relevant to the physical requirements of the job. If the post-offer exam asks about family medical history or conditions that would not affect an applicant’s ability to perform the job, then the exam may result in violations of the ADA and GINA. If testing is done by a private doctor or clinic, then employers should verify that prohibited information is not being requested on their behalf.

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About the Author

This blog post was written by Trey Cotney, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson 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.

 

Tuesday, July 30, 2013

Alabama Court Persuaded by Employee’s Testimony Instead of Medical Evidence

The Alabama Court of Civil Appeals recently affirmed a trial court’s determination of disability which was based on the employee’s subjective complaints of pain and her appearance of physical disability during trial. In Stericycle, Inc. v. Sonja Patterson, the trial court assigned a 57% permanent partial disability rating for a back injury sustained while loading a truck. On appeal, Stericycle contended that the trial court’s medical-causation and disability determinations were not supported by substantial evidence.

The Court of Appeals first addressed the issue of medical causation, holding that the parties stipulated that medical causation was not an issue before the trial court. The Appeals Court found the technical wording and structure of the stipulations supported the notion that the parties agreed the employee’s injury was caused by the accident. Furthermore, defense counsel did not challenge the trial court’s Order which clearly stated the parties had stipulated that causation was not an issue. As a result, the Appeals Court found no error in the trial court’s interpretation of the stipulation.

The Appeals Court then addressed the trial court’s assignment of a 57% disability rating. The evidence presented at trial indicated the employee’s treating physicians and physical therapists believed she was displaying symptom magnifications, which they define as reports of pain that exceed the objective medical findings. The medical evidence and thorough diagnostic studies provided little explanation for the employee’s pain, and she was given a full work release, without limitations, and a 0% impairment rating.

However, the employee continued to report severe pain and physical disability. At trial, the court noted the employee walked with a significant limp and moved around the courtroom as though she was much older than 44, her actual age. The trial court found the employee’s subjective complaints to be credible in spite of the significant medical evidence that showed otherwise.

In affirming the trial court’s determination of disability, the Appeals Court recognized its duty to uphold a decision that is supported by consideration of the totality of evidence. Though it was in striking contrast to medical evidence, the Appeals Court held that the employee’s subjective reports of pain and physical presentation of disability were sufficient grounds to support the trial court’s determination of disability.

My Two Cents:

This decision is a testament to the power of perceived credibility in workers’ compensation cases. As evidenced in the opinion, a trial court’s confidence in well-informed scientific and medical evidence can be stifled by an employee with a convincing demeanor. As such, there is significant value in developing credibility, or lack thereof, in the eyes of a court.

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About the Author

This blog post was written by Trey Cotney, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson 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, July 26, 2013

Alabama Courts Consider Twilight Zone of Concurrent Jurisdiction

The Supreme Court of Alabama recently addressed preemption of the Alabama Workers’ Compensation Act by the Federal Longshore and Harbors Workers’ Compensation Act (LHWCA) in Fernando Rodriguez-Flores v. U.S. Coatings, Inc., where an employee sought Alabama workers’ compensation benefits in state court for alleged injuries he sustained while painting in a dry dock on the coast. The employee also filed tort actions for retaliatory discharge and fraud based on a co-employee’s handling of the claim.

The employee recognized that the LHWCA prohibits tort claims against an employer in state court if the basis of the tort is within the scope of the LHWCA. However, the employee cited a narrow exception that allows such actions in state court when the employer intended to harm the employee. The employee further contended that the LHWCA remedies for retaliatory discharge would be inadequate when compared to state law remedies, which allowed for punitive damages.

The trial court dismissed the fraud and retaliatory discharge claims, agreeing with U.S. Coatings that the tort claims were preempted by the exclusivity provisions of the LHWCA.

On appeal, the Supreme Court recognized that there existed a "twilight zone" of concurrent jurisdiction between the LHWCA and the Alabama Act, wherein the location of a work accident provides the employee the option to pursue benefits under federal or state law. In doing so, the Supreme Court also recognized that state law would be preempted by federal law, if the laws were in conflict.

The Court identified a clear conflict between the LHWCA, which prohibits lawsuits against a co-employee, and Alabama common law, which allows for them. Because of this conflict, the Court held that the state law was preempted by the Federal law. The Court further held that U.S. Coatings did not intend to harm the employee, so the action did not fall within the exception. As a result, the Court affirmed the dismissal of the fraud claim.

As for the retaliatory discharge claim, the Court recognized that both the Alabama Act and the LHWCA provided relief for employees who are fired for claiming workers’ compensation benefits, and therefore, the laws were not in conflict. The Court did note that Alabama provides for punitive damages in retaliatory discharge actions, but that the LHWCA does not. However, this discrepancy in potential remedies did not create a conflict between the substantive causes of action. The Court held that the legislative history and interpretation of the LHWCA supports the notion that the federal law shall supplement state law, if possible, and if no conflict exists between the laws, the employee may pursue the action under state law. As a result, the Court held that the employee’s retaliatory discharge claim brought under state law should not have been dismissed and remanded the case back to the trial court.

My Two Cents:

The Alabama Supreme Court made it clear that a work related accident occurring in the twilight zone of concurrent jurisdiction between the LHWCA and the Alabama Act may be compensated by either set of laws. The restriction that the Court enforced supports the long standing preemptive theory, whereby federal law will trump state law when they are in actual conflict. Interestingly, as held in this case, a significant discrepancy in the potential remedies available to an employee will not result in a conflict between a state law and a federal law which address the same cause of action.

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About the Author

This blog post was written by Trey Cotney, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson 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.

Monday, July 22, 2013

Alabama Workers Compensation Rate Change Effective July 1, 2013

For claims occurring on or after July 1, 2013, the maximum workers’ compensation rate is $788 per week and the minimum is $217 per week. This change is based on the Commissioner of Labor’s determination that the State’s average weekly wage is $787.59.

Alabama Judges can Assign Disability Ratings that are Lower than the Impairment Rating Assigned by the Doctor

On July 19, 2013, the Alabama Court of Civil Appeals released its opinion in Gore v. Lafarge North America, Inc. wherein it addressed the trial judge’s ability to assign a disability rating that is lower than the impairment rating issued by the authorized treating physician. In Alabama, a judge is not limited by the impairment rating when assigning a disability rating. Although it is common for trial judges to use the impairment rating assigned by the doctor as a minimum, it is unusual to see a disability rating that is lower than the impairment rating.

In Gore, the plaintiff claimed that he was permanently and totaling disabled as a result of rocks falling on him while at work injuring his neck and other parts of his body. Initial treatment provided by the employer did not reveal any injuries and the plaintiff was returned to work at light duty and given pain medication. The plaintiff then went to see his own doctor but did not indicate he had treated with the employer’s doctor. As a result, the plaintiff secured pain mediation from both doctors which was an obvious credibility issue. Discovery later revealed that, prior to the accident, the plaintiff had been off of work for other injuries, including his neck, and was receiving narcotic pain medication up to 4 days prior to the alleged accident. During that period of time he was also off work as a result of being convicted for doctor shopping to secure multiple prescriptions for Xanax. The evidence at trial also revealed that the plaintiff was not truthful in regards to prior neck problems. The plaintiff testified that he never had prior neck pain but his supervisor testified that the plaintiff had been off work, or unable to perform his work, on numerous occasions complaining about his neck, back, shoulder and foot. Medical records also revealed prior medical treatment for back and neck pain. The plaintiff ultimately underwent surgery performed by the authorized treating physician to remove several disk and bone spurs as a result of arthritis at almost every level and a pinched nerve. The initial fusion was unsuccessful and a revision was performed. He was ultimately placed at MMI with light duty restrictions and given a 20% impairment rating to the body. The authorized treating physician testified that, based on the provided history, the accident did cause the pinched nerve, however, it was very challenging to separate degenerative from acute.

The trial Court found that the plaintiff was suffering from similar symptoms prior to the accident evidenced by short term disability 3 times over a 5 year period and narcotic pain medication as recently as 2 months before the accident. The trial Court also questioned the plaintiff’s credibility based on inconsistent testimony regarding prior injuries and his criminal convictions for DUI in the past and the conviction for doctor shopping. The trial Court found that the plaintiff proved that he had an on the job injury but found that it only resulted in a permanent partial disability. The trial Court opined that the plaintiff’s past medical condition accounted for some of the disability and the degenerative conditions could have resulted in the current injuries and/or need for treatment. As a resulted, the judge reduced the doctor’s 20% impairment rating to a 10% disability rating to account for the preexisting condition causing some of the current disability and not the on the job accident.

On appeal the plaintiff argued that the preexisting condition should not have been considered because he was performing his job normally at the time of the accident. He argued that because the accident was one factor of the disability he met his burden of proof since the accident did not have to be the sole cause of the permanent and total disability. The Alabama Court of Civil Appeals agreed that this met the standard for medical causation but stated that the extent that the accident contributed to the disability was the issue. The Appeals Court stated that the preexisting neck injury was not latent or asymptomatic and, therefore, the preexisting condition was the cause of a portion of the disability and was in fact affecting his ability to work at times prior to the accident. The Court of Appeals ruled that the evidenced supported the Trial Court’s finding that a portion of the 20% disability issued by the doctor was not the result of the accident but was the result of the preexisting degenerative condition.

Of note, the Court of Appeals stated that the evidence was sufficient to deny benefits altogether because of the plaintiff’s inability to work on various occasions leading up to the accident but the employer did not cross appeal that issue.

The Court of Appeals remanded the case to the trial Court for a determination on whether the plaintiff suffered any loss of ability to earn because he had not been able to return to work following his injuries.

My Two Cents:

Just because the preexisting condition does not prevent the employee from performing his job prior to the accident do not ignore it. If the preexisting condition is causing, or partially causing, the disability complained of, the Judge can attribute some of the disability to the preexisting condition, and reduce the disability attributed to the work injury.

ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish Nelson, 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. He is the current Chair of the ABA/ TIPS Workers’ Compensation and Employers’ Liability Committee. He is also on the Board of the Alabama Workers Compensation Organization and a member of numerous other associations and organizations. Holden has been selected as a "Rising Star" by Super Lawyers.

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.