Alabama Workers Comp Blawg

Alabama Court of Civil Appeals Considers Last Injurious Exposure Rule

Tue, 28 May 2013 13:27:12 GMT

Office Max, Inc. v. Academy, Ltd. - Released May 17, 2013

This case stems from a workers’ compensation case involving an employee of Office Max. The employee claimed that in 2002 and 2005 she injured her knees and shoulders, respectively, while working in the line and scope of her employment with Office Max. On three occasions, June 2008, March 2010 and July 2010 the employee sought orders compelling Office Max to provide medical treatment, which were granted. Office Max responded to the second motion arguing that the employee suffered a new injury, or aggravation of a preexisting injury, to her knees and shoulders while working for her new employer, Academy, Ltd. Pursuant to the Last Injurious Exposure Rule, Office Max argued that Academy was responsible for the medical treatment and any disability benefits related to the current treatment and injury. Office Max brought Academy into the action and Academy responded with a motion for summary judgment. Academy argued that the employee suffered a recurrence of the injuries she originally incurred while employed by Office Max. At the same time the employee filed a fourth motion to compel Office Max to provide further surgery on the left knee. The trial court granted the Motion for Summary Judgment and the Motion to Compel.

Under the Last Injurious Exposure Rule liability falls on the employer or carrier covering the risk at the time of the most recent injury with a casual connection to the disability. In order to determine this, the court must decide if the second injury is a new injury, an aggravation of a prior injury, or a recurrence of an old injury. If deemed a recurrence, then the first employer/carrier is responsible. However, if the second injury is a new injury or aggravation of the first injury, the second employer/carrier is responsible. A recurrence is found to have occurred when the second injury does not even slightly contribute to the disability. This is supported when the employee suffers injury, followed by a period of work with continued symptoms and then suffers a second event causing a second period of disability. An aggravation is deemed to have occurred when the second injury contributed independently to the final disability.

In regards to the shoulders, prior to starting employment with Academy in 2007, the employee suffered from tendinitis in both shoulder that lead to a diagnoses of a rotator cuff tear in the right shoulder. This lead to surgery in January 2007 and a determination that the plaintiff suffered from a 8% impairment rating in October 2007. In November of 2008, over one year after starting her job with Academy, the employee reported increased symptoms in her right shoulder which was ultimately determined to be another rotator cuff tear requiring surgery. After that surgery it was determined that the employee had a 9% impairment. The authorized treating physician testified that this would certainly be an aggravation. The Alabama Court of Civil Appeals found that the doctor’s testimony, coupled with the increased impairment would amount to substantial evidence supporting a finding that the employee suffered an aggravation and that Academy was responsible for the medical bills and indemnity benefits.

As to the knee, the evidence showed that, prior to her employment with Academy, the employee had no significant abnormalities. However, after her employment with Academy an MRI revealed a medial meniscal tear. The employee also testified that during her employment with Academy her job duties aggravated her knee condition. Given the new damage and the employee’s testimony, the Court of Civil Appeals again found that there was substantial evidence supporting a finding that the employee suffered an aggravation and Academy was responsible for the medical bills and indemnity benefits.

The Court of Civil Appeals found that the trial court erred in granting the motion for summary judgment in favor of Academy noting that the trial court must decide which employer is responsible given that the facts support that the employee suffered a compensable injury.

The Court of Civil Appeals also found that the order compelling Office Max to pay for medical treatment was premature and reversed it as well.

Of note the Presiding Judge, J. Thomas and Judge P.J. Thompson, wrote specially to highlight the problem created by these situations and called for a legislative amendment to address the issue.

My Two Cents: Depending on the facts and circumstances of a particular case, it may be advisable to consider paying for medical treatment pending a judicial determination of responsibility so that you do not lose control of the medical treatment (See Flour Enterprises, Inc v. Lawshe blog posting, February 6, 2009). In the event that the judge eventually agrees that the other employer is responsible, then full reimbursement will also likely be ordered. However, if you are not successful, then you will have maintained control of the medical treatment.

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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.

Bipartisan Medicare Legislation Introduced to the House of Representatives

Wed, 15 May 2013 14:33:43 GMT

Reps. Dave Reichert (R-WA) and Mike Thompson (D-CA) introduced the Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act (H.R. 1982) into the House of Representatives May 15, 2013.

The bill establishes clear and consistent standards for the administrative process which provides for reasonable protection of the injured worker and Medicare. Supporters indicate that it will benefit injured workers, employers and insurers by creating certainty as well as allowing the settlement process to move forward without the delays that parties are currently presented with.

The legislation is supported by the American Insurance Association, the American Bar Association, the National Council of Self-Insurers, Property Casualty, Insurers Association of America, UWC- Strategic Services and the Workers Injury Law and Advocacy Group (WILG).

The bill will likely be referred to the Ways & Means Committee for consideration.

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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 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.

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.

Alabama Court of Civil Appeals Addresses Several Issues in Affirming Permanent and Total Award

Sun, 21 Apr 2013 14:16:30 GMT

On April 19, 2013, the Alabama Court of Civil Appeals released its opinion in McAbee Construction, Inc. v. Elvin Allday. At trial, the employee presented evidence that he had worked as a boilermaker since 1986. During that time, he had sustained multiple work related injuries to his back and shoulders. However, the evidence revealed that the employee had fully recovered from those injuries and was working without restriction. During a temporary shutdown of the mill operated by his regular employer, the employee took a job with McAbee Construction and claimed a work accident resulting in injury after only 5 days with his new employer. Initially, the employee claimed only arm and shoulder problems but, a few days later, also claimed back pain. Eventually, the employee underwent a two-level lumbar fusion and a decompressive laminectomy. At trial, the judge considered medical testimony stating that the employee could have experienced the same problems even without a new accident based on his medical history. There was also evidence that the FCE was rendered invalid by symptom magnification. Ultimately, the judge determined that the back injury was compensable and awarded permanent and total benefits for the lifetime of the employee.

On appeal, the Court of Civil Appeals determined that there existed substantial evidence to support the permanent and total verdict and, therefore, affirmed that aspect of the judgment. In doing so, it addressed a few issues of interest.

Notice

On appeal, the employer asserted that the employee did not provide proper notice of his back injury. The Court of Civil Appeals noted that only notice of the accident is required and that notice of the exact nature of the injury that flows from the accident is not required.

Depression

The employer also asserted that the judge improperly related the employee’s claims of depression to the accident because the employee had failed to allege depression in his complaint. The Court of Civil Appeals noted that, while the judge’s order made reference to the testimony of a psychologist, it was for the purpose of explaining the symptom magnification referenced in the FCE. Specifically, it was the opinion of the psychologist that depression can cause or contribute to symptom magnification.

AWW

At trial, the employee testified that he chose to work only 40 weeks a year in order to spend more time with his family. As a result, the judge elected not to use one of the three predesignated methods set forth in the Alabama Workers’ Compensation Act for computing AWW. Rather, the judge took the amount earned by the employee in the one week he worked for his employer, multiplied it times 40 weeks, and then divided it by 52 weeks. The Court of Civil Appeals agreed that the judge’s method was equitable to both parties and was an acceptable deviation from the standard three methods.

Lifetime Benefits

The employer asserted and the employee conceded that it was improper for the order to state that benefits were owed for the employee’s lifetime. Therefore, the case was remanded to the judge to revise the order to state that benefits were only owed for the duration of the employee’s permanent disability.

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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.

Unexplained Falls are not Compensable in Alabama

Mon, 11 Mar 2013 10:33:17 GMT

On March 1, 2013, the Alabama Court of Civil Appeals released its opinion in Ex Parte Russell Threadgill wherein it denied in part and granted in part the employee’s petition for mandamus relief.

At trial, the employee claimed that he had two accidents. His first accident allegedly resulted in injuries to his back, left leg, right arm, and right shoulder. His second accident allegedly resulted in injuries to his left ankle and right shoulder. The employee testified that his second accident was the direct and natural consequence of injuries resulting from the first accident. Specifically, he claimed that the tingling and numbness in his left leg from the first accident caused him to fall. The employer presented medical evidence that rebutted the employee’s claims by demonstrating that the employee had not been experiencing those problems prior to the second accident. The judge ultimately held that the employee’s second accident was not a direct and natural consequence of his previous injuries. Additionally, the judge found that the second accident was not compensable because the employee could not show that his employment caused him to roll his ankle and fall.

The Court of Civil Appeals agreed that substantial evidence supported the trial judge’s finding that the employee’s job did not cause the second accident and that the second accident was not a direct and natural consequence of his previous injuries. However, the Court found that the trial judge erred in denying benefits for the right shoulder injury solely on the grounds that the second accident was not compensable. The Court stated that evidence indicated the shoulder injury may have been the result of the first accident and that the trial judge failed to resolve that dispute. The trial judge was therefore directed to determine whether or not the right shoulder injury was the result of the first accident.

My Two Cents:

Because the Court granted the employee’s petition in part, the trial judge will likely do one of two things: Either find the shoulder injury was the result of the first accident and award benefits or find that the shoulder injury was not the result of the first accident and deny benefits.

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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.

Alabama�s Judicial Estoppel Defense in Workers� Compensation Matters... Use it or Lose it!

Wed, 20 Feb 2013 13:58:41 GMT

On February 15, 2013, the Alabama Court of Civil Appeals released its opinion in CVS/Caremark Corp. v. Gloria Washington wherein it addressed the affirmative defense of judicial estoppel in the workers’ compensation context. Specifically, the Court noted the availability of the defense but only when properly pled.

The Court of Appeals had previously addressed the issue in White Tiger, Inc. v. Paul Clemons (released January 13, 2012). In that case, the Court ruled that a claimant’s assertion that he was available and able to do some work at his unemployment hearing, did not prevent him from being awarded permanent and total disability benefits in his workers’ compensation case. The Court noted that being willing and able to do some work does not necessarily mean that you are able to secure employment that you are physically able and qualified to do. In the workers’ compensation case the plaintiff testified that he could not secure work because of his disability but he would give it a shot if someone hired him for a job he was qualified to do. For this reason the Court held that the two statements, in separate judicial proceedings, did not contradict one another in order to satisfy the necessary criteria for judicial estoppel to apply.

In the more recently decided Washington case, the Court held that the employer waived its right to assert judicial estoppel as a defense by not affirmatively asserting or pleading it. The Court further noted that the employee would have been judicially estopped from prevailing on a claim for permanent and total disability benefits based on the Court’s rationale in Clemons. The Court distinguished the two cases because the employee in Washington testified in her workers’ compensation case that she could not work at all because of her pain and she had not sought employment. The employee further admitted that she misrepresented her condition and ability to work in her claim for unemployment benefits. Unlike the Clemons case, in which the plaintiff testified he would give it a shot if he was hired in a position he was qualified for in the workers’ compensation case, the employee in Washington testified that she could not work and had not sought work because her injury/pain prevented her from working at all. Therefore, the two statements were in direct conflict of one another.

Practice Pointer: Judicial estoppel is a viable defense in workers’ compensation cases but only if it is affirmatively pled.

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ABOUT THE AUTHOR

The article was written by Joshua G. Holden, 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 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, 205-332-1428 or any firm member at 205-332-3430.

Alabama Judge Addresses Link Between Manual Labor and Cumulative Trauma Injuries

Tue, 19 Feb 2013 15:28:51 GMT

On February 8, 2013, the Alabama Court of Civil Appeals released its opinion in Ex Parte Johns & Kirksey, Inc. wherein it denied an employer’s petition for a writ of mandamus. In its petition, the employer had sought relief from an interlocutory order finding that alleged cumulative trauma back and leg injuries were compensable.

At trial, the employee presented evidence that he sustained a work related back injury and underwent surgery in November 1996. The employee returned to work, performing at full-duty after his recovery. In 2008, the employee began to have trouble with his back and right leg and claimed the new problems were the result of repetitive manual labor resulting in a cumulative-trauma injury. In particular, the employee presented evidence that he spent 60% to 80% of his time at work performing manual labor such as heavy lifting and installing roofs which required repetitive bending, stooping, squatting and kneeling. Additionally, a physician stated that the employee’s job duties were at least a contributing cause of his injuries.

The employer offered testimony that the employee only spent 50% of his time performing manual labor, with half of that falling in the light or medium-duty range.

In denying the employer’s petition, the Court of Appeals noted that the evidence presented at trial supported a finding that the employee proved both medical and legal causation by clear and convincing evidence. As such, the employer could not establish a clear legal right to the relief sought.

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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.

SMART Act Improves Medicare Conditional Payment System

Fri, 18 Jan 2013 16:06:12 GMT

On January 10, 2013, President Obama signed the SMART Act (the Strengthening Medicare and Re-Paying Tax Payers Act) into law. The Act reforms certain aspects of Medicare’s requirements for conditional payments, which affect workers’ compensation claims. The various sections under the SMART Act will go into effect at different times throughout the next 18 months.

Section 201 deals with the approval of conditional payments. This section creates reform in the following areas: 1) The U.S. Secretary of Health and Human Services (the Secretary) can be notified within 120 days, prior to settlement, judgment and award of the expected date and amount of the settlement, judgment or award; 2) Upon the Secretary receiving notice, the conditional payment information can be provided through a website and the information will be updated no later than 15 days after a payment; 3) Subject to certain conditions, the last statement downloaded from the website will be considered the final demand for conditional payment; 4) If the conditional payment amount is disputed, the Secretary is required to respond to resolve any dispute within 11 days. If not, the proposed resolution by the claimant, plaintiff, or applicable plan will be deemed accepted. These procedures will go into effect on April 9, 2013.

Section 202 will not take effect until 2014 but will obligate the Secretary to publish a reporting threshold by November 15^th of every year.

Section 203 has an enactment date of March 10, 2013 and applies to fines for noncompliance. The fines will now be discretionary.

Section 204 states that the Centers for Medicare and Medicaid Services (CMS) has 18 months from the date of enactment to publish rules that phase out the use of Social Security numbers and health ID claims numbers in the reporting process.

Section 205 sets forth a statute of limitations for conditional payment recovery of 3 years after the receipt of notice of settlement, judgment, award or other payment. As of January 1, 2014 certain liability claims will be exempt from reporting and reimbursement. The exemption will be based on whether or not the claim falls below the annual threshold, which is calculated by the Secretary. This section also states that the discretionary (see Section 203) civil noncompliance penalties can be up to $1,000.00 for each day of noncompliance, with respect to each plaintiff or claimant.

ABOUT THE AUTHOR

This article was written by Joshua G. Holden, 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 Defense 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 jholden@fishnelson.com or any firm member at 205-332-3430.

Experiencing Temporary Symptoms does not Constitute a Permanent Aggravation

Thu, 17 Jan 2013 08:24:56 GMT

In Alabama, an aggravation of a preexisting condition can be treated as a new injury if the claimant was working without restriction prior to the accident date or date of last exposure to cumulative trauma. This is similar to the law in Iowa. Recently, an Iowa workers’ compensation matter (McQuown v. Brecht Trucking, Inc.) was initially decided in favor of the employer based, in large part, on medical testimony distinguishing between aggravation and symptoms. According to the testifying doctor, an aggravation means that an underlying situation was made to be medically worse, which is different than merely experiencing symptoms of a preexisting condition while performing work duties.

Iowa Workers' Compensation cases can go through several levels of appeal. The above case was first tried before a Deputy Workers Compensation Commissioner who issued an arbitration decision in favor of the employer. The case was then appealed to the Iowa Workers Compensation Commissioner which reversed the arbitration decision. The employer now has the option of appealing the matter to the Iowa District Court.

My Two Cents:

Although this is an Iowa case, it is a must read for anyone that handles Alabama workers’ compensation matters. It presents an interesting argument which employers and treating physicians should consider when presented with an aggravation claim.

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About the Author

Alabama Workers Compensation Organization 2013 Dues and Spring Conference

Wed, 9 Jan 2013 09:28:59 GMT

Membership in the Alabama Workers’ Compensation Organization offers a number of professional and social opportunities. Among these is the popular 3 day Annual Spring Conference usually held in early May. If you pay your dues by January 31^st the 2013 Spring Conference is FREE.

A link to the application is below.

http://awcotoday.com/tyfoon/site/fckeditor/file/2013AWCOMembershipApplication.pdf

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About the Author

This blog post 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.

2013 Alabama Mileage Reimbursement Rate Update

Mon, 7 Jan 2013 13:08:18 GMT

Effective January 1, 2013, the standard mileage reimbursement rate for Alabama was increased to 56.5 cents per mile.