According to the Alabama Self Insured Association, House Bill 21 which proposed lifting the $220 cap and weakening the schedule limitation was killed in the House Commerce Committee for this legislative session.

House Bill 21 which proposes lifting the $220 cap and weakening the schedule limitation will not likely be reached in this legislative session. According to the Alabama Self Insured Association, the bill will not be approved by the House Commerce Committee this session and Committee Chairman, Frank McDaniel, said he has no immediate plans to hear the bill.

The Legislators are at it again. Democratic Representative Joseph Mitchell, of Mobile has introduced HB 21 in the 2010 session that would seek to remove the $220 cap on weekly benefits. This bill would also remove the limitation to the schedule of injuries. This is not the first attempt at either of these. HB 18 was introduced in the 2009 session. (See previous entries under $220 cap). HB 21 is pending in the House Commerce Committee. The Committee chair has indicated that he has no plans to hear the bill in the immediate future.

You can visit the Alabama Legislation web site through the following link:

http://alisondb.legislature.state.al.us/acas/ACASLogin.asp

You can contact your Representatives and Senators by calling the House operator at 334-242-7600 or the Senate operator at 334-242-7600.

On July 14, 2009, the National Conference of Insurance Legislators (NCOIL) met in Philadelphia, Pennsylvania for its 2009 NCOIL Summer Meeting. At the meeting, members of the Workers' Compensation Insurance Committee engaged in serious discussion and debate concerning the Employee Misclassification Workers' Compensation Coverage Model Act. Representative Charles Curtiss (TN)-who co-sponsored the model for discussion purposes-at the NCOIL Summer Meeting, said:

In addition, co-sponsor Senator Ralph Hudgens (GA) said:

The draft model-based on Florida and Wisconsin statutes-targets transparency, disclosure, and accountability in workers' compensation insurance. It would set up a strict nine-point test to clearly define an independent contractor and mandate workers' compensation coverage in the construction industry, with certain exceptions. It would create clear procedures for insurer application, disclosure, and auditing and provide civil and criminal penalties for employee misclassification and insurance fraud. It also would establish strict enforcement authority including, among other items, power to temporarily shut down job sites when employers don't comply.

The Subcommittee deferred consideration of the model and will review all comments and produce a revised discussion draft. The Subcommittee will also hold a series of conference calls to advance the model for consideration at the NCOIL Annual Meeting to be held from November 19 through 22 in New Orleans, Louisiana.

As was previously discussed on the blawg (http://www.alabamaworkerscompblawg.com/template_permalink.asp?id=144 ) work continues in Congress in opposition to the possible federalization of Workers’ Compensation laws.  

There was an attempt to push the bill, H.R. 635, through Congress via the Suspension Calendar (which is an expedited procedure that is generally used for non-controversial measures), but this was blocked after many people contacted their Congressional delegation. Because of the calls and emails, the bill’s supporters got the message that they could not advance this bill through an expedited process.  The Chamber and other groups are continuing the grassroots effort to educate their members, and the public about this harmful bill. 

However, H.R. 635 could be included as an amendment to a larger piece of legislation, like health care or OSHA reform. Doug Holmes, President of UWC – Strategic Services on Unemployment and Workers’ Compensation, along with AIA, and the Property Casualty Insurance Association of America (PCI), drafted a resolution opposing H.R. 635 which will be offered for approval at the annual meetings of the National Conference of Insurance Legislators (NCOIL) and the American Legislative Exchange Council (ALEC) this summer.  The National Federation of Independent Business (NFIB) has similarly been preparing a resolution opposing H.R. 635 for consideration at the ALEC meeting. In addition, Bruce Wood, Associate General Counsel, American Insurance Association (AIA), will be speaking on a panel specifically addressing H.R. 635, at an American Association of State Compensation Insurance Funds conference in Washington, D.C.

Work continues to be done in opposition to H.R. 635 and members of Congress continue to be educated about this bill and the detrimental effects it will have on state workers’ compensation systems.

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.

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.

One of the easiest ways for an employer to defeat a retaliatory discharge claim is by asserting the defense of collateral estoppel. Specifically, if the employee files for unemployment benefits and the administrative law judge (ALJ) rules that the termination was for any reason other than maintaining or instituting an action to recover workers’ compensation benefits, the issue cannot be relitigated in the retaliatory discharge lawsuit. In other words, whatever the ALJ decides on the issue is controlling in the retaliatory discharge case. This may change if SB 381 is passed. This is a bill that was introduced by Sen. Quinton Ross (D) of Montgomery. If passed, this bill would limit the preclusive effect of a finding of fact, conclusion of law, judgment, or final order made under the unemployment compensation statutes. Further, the bill would preclude an employer from using an employee's previous statements and findings in court in certain cases. SB 381 is pending in the Senate Judiciary Committee and could be considered as early as this week. 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.

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.