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

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

Francis Powell Enterprises, Inc. v. Andrews:

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

Notice Requirement

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

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

Medical Causation

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

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

Apportionment of Benefits

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

Estoppel

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

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

Payment of Benefits not Admission of Guilt

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

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

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

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

Lana Brown v. Korner Store:

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

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

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

Ex Parte Saad’s Healthcare Services, Inc.:

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

Practice Pointer:

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