The Genetic Information Non-Discrimination Act of 2008 (GINA), was enacted in May 2008 and became effective in November 2009. Essentially GINA forbids employers from intentionally acquiring any employee’s genetic test results or family medical histories. Employers are not in violation of GINA if they inadvertently receive genetic information. However, all requests for medical records must expressly warn health providers not to provide genetic information or the acquisition of the records will not be considered inadvertent.

GINA regulations recommends safe harbor language to include in requests and subpoenas in order to put medical providers on notice of GINA. The language reads: "The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. "Genetic information," as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assisted reproductive services." 29 CFR § 1635.8(b)(1)(i)(B).

Additionally, GINA gives directions on how employers must maintain records that contain genetic information. Genetic information must be treated as a confidential medical record of the employee and must be kept separate from other records. This confidential record may be disclosed in response to a Court Order and to an employee upon his written request. Genetic information inadvertently received should be redacted before forwarding the record to anyone else involved in the claim, including adjusters and attorney.

My Two Cents:

It is smart practice to go ahead and insert the safe harbor language recommended by GINA regulations in all outgoing requests for records. This will guarantee that all genetic information received will be considered inadvertent and will serve as protection if there are any complications down the road. However, this is only half the battle. All records received must be carefully reviewed in order to determine if genetic information was inadvertently included by the medical provider. If genetic information was received it must be kept in a confidential file separate from the employee’s general workers’ compensation file. While separate files need not be created for genetic information already received in workers’ compensation files started before November 2009, these older files are still governed by the disclosure requirements discussed above. Therefore, before forwarding any of these records on to a new entity, care needs to be taken to redact all genetic information.

This is an update on the matter of G.A. West & Co. v. Ricky McGhee which we discussed previously here and here.

The Alabama Court of Civil Appeals recently considered a case where the Alabama Insurance Guaranty Association ("AIGA") sought reimbursement for money paid out to cover a workers’ compensation claim from a high-net-worth insured.

The AIGA is a state-run insurer that steps in to cover any unpaid claims that are made against state-licensed insurers by state residents when the insurer is judicially declared insolvent. However, high-net-worth insureds (those with assets greater than $25,000,000) are excluded from coverage by the AIGA.

This was the scenario presented in Alabama Insurance Guaranty Association v. Water Works and Santiary Sewer Board of the City of Montgomery. A dispute arose over payments made by AIGA to an injured employee of Water Works and Sanitary Sewer Board of the City of Montgomery ("the Board"). The Board’s workers’ compensation carrier had become insolvent and an injured worker’s claim was forwarded to AIGA. A number of years past before AIGA filed suit against the Board, believing it to be a high-net-worth insured.

The Board claimed that AIGA’s claim should be excluded as it was either a statutory "penalty" or a tort claim and a two year statute of limitations should apply. AIGA claimed that it was a contract action and a six-year statute of limitations should apply. After a number of hearings and summary judgment motions, the trial court found for the Board.

AIGA appealed the decision to the Court of Civil Appeals. The Court held that AIGA’s reimbursement claim was in the nature of a common-law action of debt and, as such, a six-year statute of limitations should apply. Therefore, AIGA’s filing of its claim against the Board was timely and the trial court was reversed.

On June 17, 2011, the Alabama Court of Civil Appeals released its decision in Hudson v. Renosol Seating, LLC. In December 2008, approximately 90 workers at an automobile seating manufacturing plant in Selma, Alabama filed suit against several corporate entities that owned and operated the plant, claiming that those entities willfully, negligently, and/or wantonly exposed the workers to harmful chemicals, fraudulently misrepresented and suppressed facts pertaining to the conditions at the plant, and failed to maintain a safe work place. The workers also sought workers’ compensation benefits pursuant to the Alabama Workers’ Compensation Act. The defendants moved to dismiss the aforementioned tort claims, asserting that the workers’ tort claims were barred by the exclusivity provisions found in §25-5-52 and §25-5-53 of the Act. The Circuit Court of Dallas County agreed with the employers, and dismissed the tort counts of the workers’ complaint, leaving only the claims for workers’ compensation benefits. The workers appealed.

In their appeal, the workers argued that the exclusivity provisions of the Act do not apply to the intentional tortious conduct of an employer. The workers based this argument on the holding in Beard v. Mobile Press Register, Inc., 908 So 2d 932 (Ala. Civ. App. 2004), wherein the Alabama Court of Civil Appeals acknowledged that the exclusivity provisions of the Act had been held not to apply in "certain limited cases" such as intentional fraud "committed beyond the bounds of the employer’s proper role." The workers specifically pointed out the holding in Lowman v. Piedmont Exec. Shift Mfg. Co., 547 So. 2d 90, 95 (Ala. 1989), to which the Court in Beard cited as the exception to the rule. In Lowman, the Court held that the exclusivity provisions did not apply where the employer allegedly coerced an employee who was injured on the job to file a claim for disability benefits as an off-the-job-injury instead of a workers’ compensation claim. However, the Court noted that the scope of Lowman had been significantly circumscribed by the later holding in Ex parte Progress Rail Servs. Corp., 869 So. 2d 459 (Ala. 2003). The Court in Progress Rail stated that when the employee’s injury is otherwise covered by the Act, the employee will not be able to circumvent the exclusive remedy provisions based on the assertion that the employer’s conduct was willful. Citing Accord Harris v. Beaulieu Group, LLC, 394 F. Supp. 2d 1348, 1356 (M.D. Ala. 2005), the Court stated "when it can objectively be ascertained that an injury arises out of and in the course of employment and that the injury is not expected or intended on the employee’s part, pleading or proof of an intent on the part of the employer to injure will not remove the case from the scope of the Act and its exclusivity provisions." In doing so, the Court made it clear that while the exclusivity provisions do not apply to claims alleging intentional tortious conduct committed beyond the bounds of the employer’s proper role, they do apply to conduct committed within the bounds of the employer’s proper role.

Since the workers in Hudson alleged that their injuries stemmed from their employers’ conduct, statements, and fraudulent suppression as to workplace conditions, the exclusivity provisions did apply. As such, the ruling of the Circuit Court of Dallas County was affirmed.

 A strange set of facts was recently presented to a workers’ compensation Magistrate in Melbourne, Australia. 

The injured employee in this case was Matthew Styles, a manager at the Boronia Red Rooster restaurant.  Apparently, the entire fiasco started when an angry customer asked Mr. Styles if his food would be ready “today,” to which Mr. Styles responded that it would be ready tomorrow.  The customer, unwilling to allow this attack on his honor to go unnoticed, then punched a window and told Mr. Styles, “I’m gonna find ya and kill ya.”  This led to Styles and the customer hurling insults at each other until they eventually settled their disagreement by having an old fashioned brawl.

During the ensuing fight, Mr. Styles broke his wrist after “repeatedly thumping” the customer.  Afterwards, he was fired by Red Rooster and his workers’ compensation claim was denied.  However, a Magistrate found that Mr. Styles was entitled to benefits because the customer was the aggressor and the injury occurred in the course of his employment.

My Two Cents:

While at first glance a worker receiving workers’ compensation benefits because they were involved in a fight might seem odd, it might not be so unreasonable. The same thing could happen in Alabama.

In Beverly v. Ruth’s Chris Steak House, two employees became involved in an altercation when one employee prevented another from stealing food from the restaurant. In return, twenty minutes later the would-be food thief poured three gallons of boiling water over the honest employee and a fight ensued. The injured worker filed suit for workers’ compensation benefits but lost at the trial court level. On appeal, the Court of Civil Appeals found the injury compensable. The Court found that, because the dispute was work-related, it fell within the scope of the employee’s employment.

Extending this reasoning to the Australian situation, if an employee and a customer engaged in a fight that arose from the scope of the employee’s duties, it is possible that an Alabama court could find any injuries the employee suffered compensable.

Beginning July 1, 2011, the maximum workers’ compensation payable will be $755.00 per week and the minimum compensation will be $208.00 per week. This change is based on the Director of Industrial Relations determining that the State’s average weekly wage for the calendar year of 2010 was $755.46.

Governor Bentley signed Senate Bill 187 into law on June 9, 2011. The law replaces the Frye standard with the federal expert witness rule known as the Daubert standard.

Frye, which had been law in Alabama since 1953, is considered by many to be a less restrictive standard than Daubert. Under Frye, scientific evidence is admissible if it is based on practices and methodologies that are "generally accepted" in the scientific community. Under Daubert, a judge must make a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. The judge will take into account a number of factors, such as whether the theory or technique has been peer-reviewed. The purpose of Daubert is to exclude "junk science" evidence from judicial proceedings.

My Two Cents:

The passage of SB187 has to be viewed as a victory for business interests and civil defense litigants in Alabama. Daubert has been viewed as a driving force in tort reform. In the federal courts, where Daubert has been law since 1993, and in the states that have since adopted the standard, the effects have been considered pro-defendant. By allowing defendants to exclude borderline scientific evidence, defendants have been able to obtain favorable summary judgment rulings, enabling them to avoid plaintiff-friendly juries.