On December 9, 2011, State Senator Arthur Orr (R-Decatur) pre-filed a bill (SB77) for the 2012 legislative session that proposes several welcome changes to the Alabama Workers’ Compensation Act. The following is a summary of the proposed changes:

1. The addition of § 25-5-57(a)(3)j - "In the event of an injury to an enumerated member under paragraph a. of this subdivision, evidence of an employee's pain complaints that are limited to that member may not be relied upon by the trial court as the sole basis for an award of compensation benefits beyond those otherwise available for the loss, or loss of use, of that body part as provided under paragraph a. or d. of this subdivision."

Plain English:

The trial judge cannot consider complaints of pain from a scheduled member as a reason to remove the injury from the schedule.

My Two Cents:

This probably amounts to a non-issue since the current pain exception is exceptionally high. As the law now stands, an employee has the burden of proving that his pain is totally or virtually totally disabling in order to remove his injury from the schedule.

2. The following sentence will be added to § 25-5-57(a)(4)a - "Notwithstanding the foregoing, the obligation of an employer to pay benefits based upon a permanent total disability shall continue during the permanent total disability of the employee, except that benefits based upon permanent total disability shall otherwise terminate upon either the date of the employee's sixty-fifth birthday or the date 500 weeks after the date of injury, whichever is longer."

Plain English:

Permanent and Total benefits are cut off at the age of 65.

My Two Cents:

This makes a lot of sense. The employee continues to receive benefits in the form of Social Security and the cost for workers’ compensation goes down. This will make Alabama more attractive to businesses which will create more jobs and help improve the economy.

3. § 25-5-68 will be changed to increase the maximum compensation payable for permanent partial disability to $240 (from $220).

Plain English:

I can’t put it any plainer than that!

My Two Cents:

This is the first increase since 1985 and represents an olive branch to those who might oppose other aspects of SB77.

4. The addition of § 25-5-77(j) - "If the employee does not receive medical treatment related to the claimed injury for a period of two years, a rebuttable presumption arises that any subsequently obtained medical treatment is unrelated to the workers' compensation injury. The employer shall be liable for such medical treatment only upon a finding of clear and convincing proof that such treatment is related to the workers' compensation injury. The obligation of the employer for the payment of medical benefits shall conclusively end if the employee does not receive medical treatment related to the claimed injury for a period of four years."

Plain English:

Two years with no medical treatment means any subsequent treatment is probably not related to the worker’s compensation injury. Four years with no medical treatment means any subsequent treatment is definitely not related to the workers’ compensation injury.

My Two Cents:

As a practical matter, an employee will probably just need to see his or her authorized treating physician for a check up every couple of years to avoid medical benefits closure. If this bill is passed, I predict that there will be litigation over the definition of "medical treatment." In other words, if the employee checks out fine and the doctor does not actually provide any treatment, does that satisfy the § 25-5-77(j) requirement for avoiding the closure of benefits?

5. § 25-5-81(e)(2) will be changed to allow the Court of Civil Appeals to reweigh the evidence considered by the trial court. The actual language is as follows: "In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding, when weighed against evidence in opposition, is supported by substantial evidence."

Plain English:

The Court of Civil Appeals will be able to consider the evidence on its own rather than simply deferring to the trial judge.

My Two Cents:

Check out our blog posting from 2 days ago entitled "Verdict of Employer Reversed due to Inconsistencies in Medical Records" and tell me that the Court is not already doing this.

The 2012 legislative session begins on February 7^th so stay tuned. We will continue to monitor the progress of the bill and report on any new developments.

The Alabama Court of Civil Appeals recently released its opinion in the case of Johnson v. Lowe’s Home Centers, Inc. wherein it reversed the trial court’s verdict if favor of the employer.

The employee, Johnson, alleged that he injured his back while working at Lowe’s in May 2008. Johnson went to the emergency room the morning of Friday, May 16, 2008, and the medical records indicate that Johnson stated he "lifted something on Monday which started the problem" and had an "increase in pain after lifting on Thursday." Another page of the emergency room record stated "lifting heavy object at work, pain x 3 days." The emergency room report also reported the accident was a "home accident" and that the nature of the accident was "lifting crate/back injury" on May 14, 2008 at 5:30 pm. Johnson’s time clock records proved that he did not work on the Monday prior to the emergency room visit, but that he was at work at 5:30 pm on Wednesday, May 14. Johnson filled out a First Report of Injury form on Monday May 19, 2008, where he stated that he hurt his back while stocking toilets on Wednesday May 14, 2008. A subsequent medical record from Dr. Tai Chung indicated that Johnson told him that he hurt his back while lifting a heavy bucket of tools - a statement Johnson claimed was a misprint.

Johnson testified at trial, as did the corporate representative of Lowe’s, Johnson’s supervisor, and one of Johnson’s co-workers. After hearing the evidence, the trial court found that Johnson’s testimony and statements to his doctors about how the injury occurred were not credible and, therefore, found that the alleged injury was not compensable. However, on appeal, the Court of Appeals found that some of the evidence presented by the employer lacked credibility. In its decision, the appellate court pointed to a letter from Dr. Chung to the workers’ compensation adjuster in which the adjuster’s name was misspelled, and Dr. Chung’s medical records which sometimes misspelled Johnson’s name and incorrectly referred to Johnson as "her" or "herself". Based on this, the Court of Appeals determined that the Circuit Court’s factual findings were not supported by substantial evidence, and reversed its ruling.

MY TWO CENTS:

Under the standard of review provided by § 25-5-81 of the Alabama Workers’ Compensation Act, pure findings of fact made by the trial court shall not be reversed if they are supported by substantial evidence. It is well established under Alabama law "that the trial court is in the best position to observe the demeanor and credibility of the employee and other witnesses in a workers’ compensation case." See, Mayfield Trucking Co. v. Napier, 724 So. 2d 22 (Ala.Civ.App. 1998). In this case, the appellate court essentially re-weighed the credibility of the witnesses and evidence instead of deferring to the trial court. This is a very unusual circumstance.

A lesson to take away from this case is that, if you intend to rely on medical records as evidence, any inconsistencies or clerical errors in the records should be addressed with the doctor and resolved prior to trial.

Membership in the AWCO offers a number of professional and social opportunities annually to interact with other workers' compensation personnel. The highlight of the year is the annual AWCO Spring Conference where workers' compensation professionals come together for three days for education and fellowship. Remember that in order to attend the AWCO Spring Conference for free, your application and payment must be received no later than January 20, 2012.