United States of America v. Paul J. Harris, United States District Court, Northen District of West Virginia, Civil Action No. 5:08CV102:

In this pending case, the U.S. government is pursuing reimbursement for conditional payments made by the Centers for Medicare and Medicaid Services ("CMS") to a personal injury claimant. Specifically, Medicare made conditional payments for medical treatment in the amount of $22,549.67. Although the third party settlement was for only $25,000.00, CMS agreed to accept $10,253.59 to settle its claim. When the amount was not paid, this lawsuit was filed against the claimant’s attorney. The claimant’s attorney filed a Motion to Dismiss, arguing that he could not be held individually liable under 42 U.S.C. Sec. 1395y(b)(2) when he merely distributed the settlement funds to his client. The Court disagreed and entered an Order denying the Motion to Dismiss. The Court concluded that the government had a right to recover from any entity that received a primary payment, including an attorney. The federal regulation, as well as the Medicare as a Secondary Payer Statute ("MSP"), make it clear that "any entity" includes a beneficiary provider, supplier, physician, attorney, state agency or private insurer that has received a primary payment. This case has yet to be decided on its merits. Should the facts support the government’s claim, the claimant’s attorney could be forced to pay double what was originally owed.

Norandal U.S.A., Inc. v. Welton Graben:

On February 20, 2009, the Alabama Court of Civil Appeals released this opinion wherein it reversed and remanded the trial court’s decision to remove a leg injury from the schedule and award permanent and total benefits. At trial, the employee presented evidence of a compensable leg injury. Approximately 7 years after the work accident and 3 weeks after his most recent surgery, the employee’s knee gave way causing him to fall and injure his shoulder, hip and back. Although the fall happened while he was on a personal errand, injuries that are the direct and natural result of a compensable injury are themselves compensable. However, in such situations, the employee is still responsible for providing notice to the employer. The employee failed to do so and so he was precluded from recovering for any injuries related to the fall. Despite this fact, the trial judge still considered the employee’s pain and the back problems as caused by the employee’s altered gait. In considering this evidence, the trial judge found that the employee’s knee injury extended to other parts of the body and interfered with their efficiency. This was the basis for removing the injury from the schedule and assigning the employee permanent and total benefits. In reversing the trial court, the Court of Appeals noted that it was improper to consider the injuries that resulted from the fall. Further, while there was evidence at trial that the employee had an altered gait, there was no finding by the judge that the altered gait led to problems in other areas of the body. The Court also noted that while pain, on its own, can sometimes justify removing an injury from the schedule, the pain must be totally or virtually totally disabling. Although the trial court noted that the employees pain was chronic and debilitating, it did not make a finding that the pain was totally or virtually totally disabling.

In 1992, after many concessions from both trial lawyers and business interests, the Alabama Legislature passed the Workers' Compensation Reform Act of 1992. The goal was to reduce business costs, minimize future rate increases and deliver higher benefits to workers. Despite the passage of these broad sweeping changes, the Alabama Appellate Courts of the 90's interpreted the statutes liberally which effectually neutered them. The Alabama Supreme Court and the Alabama Court of Civil Appeals are now comprised of a conservative majority and the law is finally being applied as the legislature originally intended.

Since the trial lawyers lost their liberal majority in the Appellate Courts, they are now focusing their efforts on changing the statutes themselves. In February 2008, four Senate Bills and one House Bill were introduced which, if passed, would have exponentially increased workers’ compensation abuse, cost, and litigation. Fortunately, none of the bills were passed.

The 2009 regular session of the Alabama Legislature opened February 3^rd. One of the initial bills introduced was HB 18, sponsored by Joseph Mitchell (D) of Mobile. HB 18 would introduce two radical changes to workers’ compensation in Alabama. First, it would remove the $220 cap on weekly workers’ compensation benefits. Second, the bill would remove the limitation to the schedule of injuries. Specifically:

HB 18 is currently pending in the House Commerce Committee. Both Houses will meet on Tuesday, February 17^th, for the fifth legislative day. In response to the introduction of this bill, business interests will likely make their disapproval known to those House members responsible for sponsoring the bill. Remember, you can contact your House and Senate members in Montgomery by calling the House operator at (334) 242-7600 or the Senate operator at (334) 242-7800, or writing to them via the State House Office Building, Montgomery, Alabama 36130. You can also visit the Legislature's official web site at http://alisondb.legislature.state.al.us/acas/ACASLogin.asp.

On February 12, 2009, Mike Fish was a guest on the on the Workers' Comp Matters internet radio show.  The host, Attorney Alan S. Pierce, and Fish discussed issues related to workers' compensation fraud.  To access this program, just click on the following link.  

Page URL:    http://www.legaltalknetwork.com/modules.php?name=News&file=article&sid=356

The Alabama legislature recently established and implemented a controlled substance database for the entire state of Alabama. The purpose of this database is to monitor the prescribing and dispensing of controlled substances under the Alabama Uniform Controlled Substances Act. Pharmacies, licensed physicians, dentists, podiatrists, optometrists, or veterinarians who dispense Class II, Class III, Class IV, and Class V controlled substances are subject to the reporting requirements of the Controlled Substances Prescription Database. The information contained in the database includes:

Darius Moore v. Larry Welch, Sid Sewell, and Frank James:

On February 6, 2009, the Alabama Court of Civil Appeals considered a case wherein the employee was injured when the paint thinner he was using to prepare a piece of machinery for painting was ignited by sparks from a metal grinder being used overhead by a co-employee. Two different fire extinguishers malfunctioned and his fellow employees finally dowsed the flames by rolling him in wet sand. As a result, he suffered third-degree burns to 25% of his body. the employee filed suit against the employer, the temporary agency, certain co-employees, and the manufacturer of the fire extinguishers for workers’ compensation, willful conduct, and negligence/wantonness. In support of his § 25-5-11 willful conduct claim, the employee asserted that the co-employees failed to properly inspect, maintain, and refill the fire extinguishers and also wilfully and intentionally removed a safety device or safety guard from the fire extinguishers. The co-employees failed to defend themselves and a default judgment was entered in favor of the plaintiff employee. The default was subsequently set aside and then the co-employees’ motion for summary judgment was granted. The employee appealed on the grounds that the default judgment should not have been set aside because the co-employees had no meritorious defense to the willful conduct claim. In response, the co-employees asserted that improper maintenance of the fire extinguishers could not be a basis for recovery under § 25-5-11(c)(2) because the fire extinguishers were safety devices in the workplace and not safety devices on a machine. In the alternative, the co-employees argued that, even if the failure to properly maintain the fire extinguishers were a basis for liability under § 25-5-11(c)(2), the co-employees were unaware of both the need for maintenance of the fire extinguishers and the type of maintenance required. As such, their conduct could not be considered willful and intentional as required by § 25-5-11(c)(2). The Court of Civil Appeals agreed that a meritorious defense was asserted and affirmed the trial court’s ruling. In affirming the trial court’s decision to set aside the default judgment, the Court also held that the co-employees’ failure to timely answer the complaint or appear at trial was not culpable conduct and that the plaintiff employee suffered no prejudice. Only one of the co-employees appealed the summary judgment of the§ 25-5-11(c)(1) claim. Although the Court agreed that the co-employee’s conduct in igniting the fire by operating the grinder near paint thinner was arguably negligent, it affirmed the summary judgment of the § 25-5-11(c)(1) claim because there was not enough evidence to prove the conduct was willful. The Court also affirmed the summary judgment of the § 25-5-11(c)(2) claim as to all the co-employees because the fire extinguishers were held not to be safety devices on a machine and were instead safety devices used within the workplace.

Fluor Enterprises, Inc., d/b/a Fluor Signature Services v. Darrell Lawshe:

On February 6, 2009, the Alabama Court of Civil Appeals considered the issue of whether or not an employee can choose his own doctor when compensability is denied and later judicially determined to be compensable. In this case, the employer denied the claim and the employee went to his own doctor. When the trial court ruled that the claim was compensable, the employer sought to have its own doctor treat the employee. the trial court ruled that the employee could keep using the doctor of his own choosing. On appeal, the Court of Civil Appeals affirmed the trial court’s decision.

Practice Pointer:  Employers must now consider the fact that they may lose the right to choose the doctor when compensability is denied and the claim is later deemed compensable.

Reynalda Alanis Duran et al. v. Goff Group:

On February 6, 2009, the Alabama Court of Civil Appeals considered the issue of whether or not nonresident alien dependents were entitled to workers’ compensation death benefits. The Court affirmed the trial court’s ruling that such dependents were not so entitled because according to Ala. Code § 25-5-82: "Compensation for the death of an employee shall be paid only to dependents who, at the time of the death of the injured employee, were actually residents of the United States. No right of action to recover damages for the death of an employee shall exist in favor or for the benefit of any person who was not a resident of the United States at the time of the death of such employee." Although the dependents appealed on the grounds that the law was in contravention to equal-protection and due-process guaranties contained in the United States Constitution, The Court of Appeals held that nonresident aliens were not entitled to invoke those constitutional guaranties on their own behalf.