Ex parte Siemag

The Alabama Court of Civil Appeals denied a petition for a writ of mandamus (to compel the lower court to reverse itself) sought by two defendant corporations that were seeking to transfer venue on the basis of forum non conveniens. The forum non conveniens doctrine is used by defendants in an otherwise proper venue to transfer a case due to inconvenience of the parties.

The principal defendant attempted to sever the workers’ compensation claim and have it relocated to Tuscaloosa County because it conducted no business by agent in Walker County. Two other defendants sought to relocate the action against them from Walker County (the plaintiff’s county of residence) to Tuscaloosa County (the county where the injury occurred) on the basis of forum non conveniens. The trial court determined venue was proper and denied the motion.

On appeal the defendants cited lack of access to airports in Jasper as an undue hardship to the defense of the case in Walker County. They asserted that Tuscaloosa had a greater interest in adjudicating the actions than did Walker County because of Tuscaloosa County’s extensive mining activity and larger judge allocations and juror pools.

The Alabama Court of Civil Appeals denied the defendants assertions citing the higher degree of hardship which would be suffered by the plaintiff who was a double amputee. The Court also alluded to the large volume of mining activity in Walker County and the extensive history of Walker County courts adjudicating mining related cases. Most notably the Court stated that because the ruling on venue had been proper and a workers’ compensation claim existed against the principal defendant in Walker County; the trial court did not abuse its discretion in finding that a change of forum would not be proper.

CMS’ new policy memorandum addresses the separate issues of (a) off label and/or unlabeled outpatient drug uses and (b) rated ages in relation to the agency’s Workers’ Compensation Medicare Set-Aside (MSA) program. 

Through the May Memo, CMS sets forth new guidelines regarding when off label and/or unlabeled drugs are covered by Medicare Part D and, thus, includable as part of a workers’ compensation MSA proposal.  In addition, CMS has rescinded its previous rated age policy and announced that the MSA submitter will now need to include very specific rated age “certification statement."

For full details, please visit NuQuest BridgePointe Settlement News.

www.alabamaworkerscompblawg.com 

On April 20, 2010, Transocean’s Deepwater Horizon drilling rig exploded, leading to 1.3 million gallons of crude oil leaking into the Gulf of Mexico per day. By comparison, the Exxon/Valdez spill, which has long been considered the worst environmental disaster in American history, only consisted of 10.8 million gallons of crude oil…total. The Gulf spill is reaching that number once every 8 days.The total estimated cost of clean up will be between $15 - 23 billion. BP will also be liable for an estimated $14 billion in lawsuits brought by the fishing and tourism industries in the Gulf states. One future consequence of the oil spill that is not as readily apparent, however, is the effect that the spill will have on employers and workers compensation insurance carriers.

Over 25,000 workers were helping clean up the Gulf Coast by the beginning of June. The number of workers participating in the cleanup will only rise in the coming months. According to WKRG5 in Mobile, AL BP relies on subcontractors to handle this work. BP requires that the workers go through at least four hours of training before being certified to participate in the cleanup, but it appears that many of these workers are under trained and under-supervised. The Labor Department has already voiced concerns that BP’s safety systems for these workers are grossly inadequate. The dangers these workers face range from inhaling toxic chemicals and coming in direct skin contact with the crude oil to ergonomic stresses and heat stroke. Some workers participating in the cleanup in Louisiana have already fallen ill. One only has to read about the long term health problems that have afflicted the cleanup workers from the Exxon/Valdez spill and then look to the media for photographs and videos of clean up workers with minimum or no protective gear.

There are a number of Gulf Coast personal injury attorneys who have already begun marketing their law firms to workers in anticipation of future workers comp claims. It is important that employers (and their workers’ comp insurance carriers) begin taking proactive measures to protect these workers if they are involved in the cleanup. OSHA has published a list of precautions that should be taken on their website. These include general things such as regular rest breaks to prevent heat stroke, having water readily available, providing sun screen to protect from sun poisoning, and providing personal protective equipment to protect employees from the toxins in both the crude oil and the dispersants being used to clean the spill. While OSHA states that the level of toxins that workers are being exposed to fall within non-hazardous limits they continue to keep a close eye on the situation.

My Two Cents:

The oil spill cleanup poses serious risks of long-term injury to workers. There were over 1,800 workers’ compensation claims filed as a result of the Exxon/Valdez spill. The Gulf spill will probably result in many more workers’ comp claims being filed considering that there are already twice as many workers involved in the cleanup than were used during the Alaskan spill. The law that governs these claims will differ depending upon where the worker is injured.

If the worker is injured on shore he will be covered by the state’s workers’ compensation laws in most cases (there are a few limited situations, such as working on a dock or pier, where a worker will be covered by the federal Longshore and Harbor Workers’ Compensation Act). Employees who are injured on a seafaring vessel will be covered by the Jones Act. The Workers Comp Kit Blog  is a good resource for some basic facts about this law. Both workers’ compensation laws and the Jones Act require the employer to pay for medical costs resulting from the injury. Unlike workers’ compensation laws, under the Jones Act the employer will not be required to pay for any resulting disability to the employee once he has reached maximum medical improvement. Under the Jones Act, however, the employee will be able to file a lawsuit against his employer for future lost wages and punitive damages. In order for an employee to prevail in this type of lawsuit he must show either that the employer was negligent or that the vessel was not seaworthy.

Additionally, it is possible that these injured workers may be able to get relief from federal plans.  The Oil Pollution Act of 1990 (signed in response to the Exxon/Valdez spill) allows the government to use the Oil Spill Liability Trust Fund (OSLTF) for a number of things, including payment for uncompensated removal costs and damages.  It is not entirely clear whether this fund could be used to aid injured workers.  The new federal healthcare bill contains a provision that expands Medicare to cover victims of “environmental health hazards.”  This provision is another avenue that may be potentially used to compensate injured oil spill workers.

Employers must be diligent in educating employees and requiring the use of protective equipment. If the employees then choose to violate the safety rules, they will do so at their own peril.

The Alabama Workers Comp Blawg is designed to keep readers up to date on legislation, case law, and cutting edge issues regarding workers' compensation in Alabama and the nation.            www.alabamaworkerscompblawg.com

Equity Group – Alabama Division d/b/a Keystone Foods v. Rodney DeWayne Harris:

On June 4, 2010, the Alabama Court of Civil Appeals released this opinion wherein it affirmed the Trial Court’s finding of notice and causation but reversed the Court’s decision to require the employer to provide a panel of four. In addition, the Court of Appeals disagreed with the employer’s argument that past, present, and future medical benefits are not owed when the 5 day notice requirement is not satisfied and, instead, interpreted the applicable Code provision to state only that the medical benefits incurred prior to actual notice being given are not owed.

Interestingly, the evidence at trial revealed that the employee was allegedly injured on a Friday just 15 minutes before he was to leave for a week long vacation. It was undisputed that he provided no notice to his employer at that time. The employee did not seek medical attention until the following Monday. In the medical records it stated that the employee was injured the day before (2 days after alleged accident). The employee returned to the same doctors the following Sunday because he fell due to alleged numbness in his leg that he attributed to his original injury. No work accident was mentioned in the records from either visit and the doctors did not recall the employee stating that his injuries were work related. Although the employee’s wife testified that she notified the employer the next day about the alleged work accident, the employer’s witnesses all testified this was simply not the case.

The employee next went to a neurosurgeon of his own choosing. In the neurosurgeon’s records, it was noted that the employee did not relate a job injury but rather felt his back pop when he got out of bed after a vacation. The neurosurgeon further testified that the employee told him that he was not injured at work. Of course, the employee disputed the good doctor’s testimony.

Approximately five weeks after the alleged accident, the employee filed a disability claim with his union. It was denied and he was at that time told he needed to file a workers’ compensation claim. Although the employee was subsequently issued a workers’ compensation prescription drug card, the employer asserted that it was erroneously issued.

Despite the lack of any mention of a work injury in the medical records and the testimony of the employee’s own doctor, the Trial Judge found that notice was proper and that the employee proved both medical and legal causation. The Court of Appeals had no choice but to affirm since it could not re-weigh the evidence and the Judge obviously assigned more weight to the testimony of the wife. In addition, the issuance of the prescription drug card supported the employee’s case regarding notice. Further, an accident report completed by the employer two months after the alleged accident stated that the employee claimed a work injury. Finally, it was noted that the employee was deaf which may have caused some communication problems with his physicians despite the fact that his wife was always present.

The Court of Appeals reversed the Trial Court’s order so far as it required the employer to furnish a panel of four. Although by allegedly denying the claim, the employer relinquished its right to choose the initial doctor, the employee is stuck with the doctor of his own choosing until such time that he becomes dissatisfied and requests a panel of four.

My Two Cents:

I think most employers and defense attorneys would feel fairly comfortable going to trial with a text book red flag injury and testimony from a doctor of the employee’s own choosing stating affirmatively that the employee admitted his injuries were not job related. You just never know what will happen if you proceed to trial. That is why most cases are resolved via settlement.

Jackson v. Sedgwick Claims Management Services, Inc., No. 09-11529 (E.D. Mich. 03/11/10):