John Webb, Chair of LGWM’s Workers’ Compensation Practice Group, spoke at the Alabama Workers’ Compensation Organization (AWCO) 2022 Annual Conference. The Conference took place November 3-4 in Birmingham, Alabama. John teamed up with Dana Mattiace (Senior Adjuster/Team Lead) with SteadPoint Risk Management Services to provide new adjuster training for approximately 40 workers’ compensation adjusters from across the United States. The presentation titled: “Handling Alabama Claims From Start To Finish” covered issues important for adjuster new to handling Alabama workers’ compensation claims.
On March 18, 2020, pursuant to §§ 12-2-30(b)(8) and 25-5-12, Ala. Code 1975, Chief Justice Tom Parker issued “Administrative Order Concerning Workers’ Compensation Cases During the Period of Suspension of In-Person Proceedings,” authorizing circuit judges to conduct workers’ compensation settlement hearings telephonically or by videoconference. This Order also authorizes the use of the Alabama Department of Labor Ombudsman Program for remote approval of workers’ compensation settlements as well, and specifically allows the dismissal of a workers’ compensation claim that was pending in court if settled with written approval of an ombudsman. The order is in effect until October 29, 2021, or further order of the Court.
On July 15, 2021, the presiding judge of Jefferson County entered an Administrative Order extending the previously entered Order allowing the holding of non-jury court proceedings by video or audio conference.
The previous Order provided Jefferson County Circuit Judges with discretion to hold virtual court hearings in all non-jury proceedings which included workers’ compensation cases.
In light of the recent increase in the number of Delta variant
related cases in Jefferson County, we anticipate some of our local judges will
set workers’ compensation hearings, status conferences and trials via audio
conference.
In accordance with the provisions of Section 25-5-68(c), Code of Alabama 1975, the Secretary of Labor determined the new maximum workers’ compensation payable is $983.00 per week and the minimum increased to $270.00 per week
The memorandum regarding the new maximum and minimum rates issued by
the Director of the Alabama Department of Labor Workers’ Compensation Division
Steve Garrett, can be accessed at https://labor.alabama.gov/docs/guides/wc_weeklywage.pdf.
In Sellers v. Venture Express, Inc. (not yet released for publication), the Plaintiff asserted a workers’ compensation action in the Circuit Court of Cullman County asserting an on-the-job injury in the course and scope of her employment with Defendant Venture Express. The claimed injury occurred in Alabama, but the Plaintiff and Defendant entered into an agreement stating that all workers’ compensation complaints were to be filed in Tennessee. The Defendant filed a Motion to Dismiss the Complaint based on the agreement and the Trial Court granted the Motion. The Plaintiff appealed the dismissal of her complaint.
On March 18, 2020, pursuant to §§ 12-2-30(b)(8) and 25-5-12, Ala. Code 1975, on March 18, 2020, Chief Justice Tom Parker issued “Administrative Order Concerning Workers’ Compensation Cases During the Period of Suspension of In-Person Proceedings”, authorizing circuit judges to conduct workers’ compensation settlement hearings telephonically or by videoconferencing. This Order also authorized the use of the Alabama Department of Labor Ombudsman Program for approval of workers’ compensation settlements as well, and specifically allowed the dismissal of a workers’ compensation claim that was pending in court if settled with written approval of an ombudsman.
Dan Pickett successfully defended AIDS Alabama, a local non-profit organization, at trial against Plaintiff’s worker’s compensation claim. Plaintiff had undergone a multilevel back fusion and been assigned a 15% whole person impairment rating by her physician. During the trial, Plaintiff claimed she was 100% permanently and totally disabled. Dan cross examined Plaintiff and presented evidence that she was not permanently and totally disabled. Following the trial, the Court found that Plaintiff only had a 25% vocational impairment. Dan’s efforts were successful in substantially minimizing Plaintiff’s recovery in this case.
In Ex parte Kohler Company, Inc., 29 ALW 4-4 (2190081); 1/17/2020, the Employer, Kohler Company, Inc., (“Kohler Company”) petitioned the Alabama Supreme Court for a writ of mandamus directing the trial court to vacate its Order denying Kohler’s Motion to Vacate the Order granting the employee’s motion to provide a second opinion doctor. The Alabama Supreme Court denied Kohler’s writ of mandamus.
On
May 6, 2020, the Alabama Secretary of Labor, Fitzgerald Washington, determined,
pursuant to Alabama Code Section 25-5-68(c), that the State of Alabama’s
average weekly wage for 2019 was $920.07. Based on this determination, Steve
Garrett, Director of the Alabama Department of Labor Workers’ Compensation
Division, issued a memorandum on May 11, 2020 stating the maximum workers’ compensation
payable to injured workers is increased to $920.00 per week and the
minimum is increased to $253.00 per week. The new rates take effect July
1, 2020, and apply to injuries occurring on or after that date.
On October 4, 2019, the Alabama Court of Civil Appeals released AMEC Foster Wheeler Kamtech, Inc. v. Chandler, -- So. 3d --, 2019 WL 4894327 (Ala. Civ. App. 2019), which found the employer, Defendant AMEC Foster Wheeler Kamtech, Inc., failed to prove the employee, Plaintiff Jimmy Chandler, returned to work making the same or greater average weekly wage (“AWW”) and that Ala. Code § 25-5-57(a)(3)i (the “return-to-work” statute) did not apply to prevent the trial court from awarding damages based on Plaintiff’s vocational impairment.
On October 18, 2019, the Alabama Court of Civil Appeals released an opinion holding that Plaintiff Orethaniel Swain’s (“Plaintiff”) outrage, fraud and conspiracy claims against Defendants AIG Claims, Inc., Insurance Company of the State of Pennsylvania, Coventry Health Care Workers’ Compensation, Inc. and Jackie Angeles (“Defendants”), based on the handling of his worker’s compensation claim were not barred by the exclusive remedy provisions of Ala. Code § 25-5-53 and stated a valid claim. Swain v. AIG Claims, Inc., 2019 WL 5284748, at *10 (Ala.Civ.App. 2019).
In Ex parte Farley, --- So.3d ----, 2019 WL 2558824 (Ala. Civ. App. June 21, 2019), the Employee, Randy Farley (“Farley”) filed suit for workers’ compensation benefits against his Employer, Transport America, Inc. (“Transport America”) in Etowah County, Alabama. As part of its discovery requests, Transport America asked that Farley execute releases for obtaining certain records, including his Social Security disability records, tax records from the Alabama Department of Internal Revenue and records from Alabama Department of Labor. Farley refused, arguing that the Alabama Rules of Civil Procedure did not require execution of releases and that such a requirement would result in an overly broad release of information.
Attorneys Aaron Ashcraft and John C. Webb recently obtained summary judgment in a workers’ compensation action pending in Bessemer Alabama. The summary judgment asserted a novel res judicata argument, and was based on the proposition that a Plaintiff cannot recover benefits after previously asserting, and settling, a claim for permanent total disability benefits against the same employer.
Employee Joseph Fields, (“Fields”) filed a Complaint against
his employer Sexton Lawn & Landscape, for workers’ compensation benefits
relating to right leg and lower back injuries he allegedly received from a brown
recluse spider bite on August 13, 2015, while in the course and scope of his
employment with Sexton Lawn & Landscape.
Stephen Hrobowski (“Hrobowski”) was involved in a motor vehicle accident in Montgomery County, Alabama in 2015 wherein his vehicle collided with a vehicle being operated by Kevin Ledyard (“Ledyard”). The impact of this collision caused Ledyard’s vehicle to strike a vehicle being operated by Roosevelt McCorvey (“McCorvey”).
An opinion from the 10th Circuit Court of Appeals, Bandimere v. Sec. & Exch. Comm'n, 844 F.3d 1168 (10th Cir. 2016), has the potential to substantially upend the Black Lung Benefits Act, particularly as it concerns authority of Administrative Law Judges to decided cases under the Black Lung Benefit Act.
Section 25–5–89 of Alabama’s Workers’ Compensation Act provides a trial court the discretion to tax costs incurred by an injured party in pursuing their claim against an employer. However, this discretion is not unfettered and in Ex parte Ampro Prod., Inc., No. 2160818, 2017 WL 4563053, at *1 (Ala. Civ. App. Oct. 13, 2017), the Alabama Court of Civil Appeals addressed the properness of such costs.
In Saarinen v. Hall, 26 ALW 36-8 (1160066), 9/1/2017, the Supreme Court held that the failure of the employee’s supervisors to install a safer saw that was on the employer’s premises was not the equivalent of removing a safety guard from an existing saw so as to subject the supervisors to liability under the Alabama Workers’ Compensation Act.
In Wyatt v. Baptist Health Sys., Inc., No. 2160280, 2017 WL 3096691, at *1 (Ala. Civ. App. July 21, 2017), the Alabama Court of Civil Appeals clarified that the Plaintiff bore the burden of establishing medical causation and that the fact finder did not have to resolve all reasonable doubts in conflicting medical evidence in her favor.
In Grieser v. Advanced Disposal Services Alabama, LLC, 26 ALW 33-4 (2160290), 8/11/17, the Court of Civil Appeals reversed a trial court’s refusal to consider the employee’s vocational disability and held that separate circumstances relieving an employer’s liability under the “Return to Work” statute are affirmative defenses which must be plead or are deemed waived.
Typically, if an employee is injured on the job
they can file two types of actions. First, and the most traditional, is filing
suit against their employer for workers’ compensation benefits. Second, if the
injured employee sustained the injury as a result of a defective product or in
a car accident involving an individual who is not a co-employee, they have the
right to file a separate suit against that entity or individual.
In Horton v.
Hinton, 26 ALW13-4 (2150631), the Court of Civil Appeals affirmed a trial
court’s dismissal of a lawsuit based on plaintiff’s failure to comply with
discovery orders.
In Ex parte Tenax Corp., the Alabama Supreme Court reaffirmed that the exclusive-remedy provisions of the Alabama Workers' Compensation Act, § 25–5–1 et seq., Ala. Code 1975 can provide immunity from tort claims filed by workers’ provided to an employer through a staffing agency.
In Hand Constr., LLC v. Stringer, the Court of Civil Appeals addressed an issue regarding the scope of jurisdiction under the Alabama Worker’s Compensation Act for out of state injuries. The Plaintiff, a resident of Mobile, Alabama, entered into a contract for hire with a construction contractor operating out of Shreveport, Louisiana. The job offer was communicated to the Plaintiff while he was in Mobile, but he traveled to Louisiana to sign the employment contract.
On September 16, 2016, the Alabama Court of Civil Appeals released its decision in Page v. Southern Care, Inc., --- So.3d ---, 2016 WL4938180 regarding reimbursement of reasonably necessary mileage costs.
An interesting decision concerning the course and scope of employment was recently issued by the Alabama Supreme Court, in Ex parte Lincare Inc. The Plaintiff in the action resigned from her employment with Lincare on June 6, 2014, and submitted a letter of resignation to her supervisor. After she presented her supervisor with the resignation letter, her supervisor confronted her with paperwork, which the Plaintiff forcibly removed from her supervisor’s hand.
In Ex parte Lowe’s Home Centers, LLC, (Ala. Civ. App. May 6, 2016)[25 ALW 20], the employee Sarah Brown (“Brown”) filed a workers’ compensation action against her employer Lowe’s Home Centers, Inc. (“Lowe’s), seeking medical treatment for her claimed back injury and an award of disability benefits.
John Webb recently prevailed in a workers’ compensation trial before Judge D. Alan Mann in Madison County, Alabama in Antonio Octaviano v. Coast Personnel Services, Inc.
In, Ex parte Reed Contracting Servs., Inc., No. 2150230, 2016 WL 360725 (Ala. Civ. App. Jan. 29, 2016), the plaintiff, Henry Riley (“Riley”), injured both of his knees and wrists during the course of his employment with his employer, Reed Contracting Services (“Reed”) when he fell from a man lift in March 2012. Id. at *1. Riley was diagnosed with a torn medial collateral ligament in his right knee, and osteoarthritis in both knees in the months after the accident.
Aaron Ashcraft recently prevailed in a compensability hearing before Judge Steven Haddock in Decatur, Alabama in Darrin Hester v. Minor Tire Company, et al.
On February 27, 2015, the Alabama Court of Civil Appeals released an opinion re-affirming the principle that an employer is only liable under the Worker’s Compensation Act for treatment of the temporary injury when a work related injury aggravates a preexisting condition. Ex parte Fairhope Health & Rehab, LLC, 2015 WL 836706, at *7 (Ala. Civ. App. Feb. 27, 2015).
John Webb recently obtained a defense verdict on behalf of a global coal mining company in a workers’ compensation hearing loss trial.
On February 27, 2015, the Alabama Court of Civil Appeals entered a decision in the case of Pollock v. Girl Scouts of Southern Alabama, Inc., 24 ALW 10-6 (2130538), 2/27/15. The issue in Pollock was whether an employee’s participation in a horseback riding event organized and planned by a co-employee was within the scope of the employee’s employment. See id.
In Goodyear Tire & Rubber Co. v. Bush, the Alabama Civil Appeals Court held that the trial court erred in concluding that the employee was permanently and totally disabled under the Act, Ala. Code § 25-5-57(a)(4)(d), because it used the vocational disability of the employee as the basis for the compensation award without first deciding that an exception to the schedule applied.” 2014 Ala. Civ. App. LEXIS 153 (Ala. Civ. App. Aug. 22, 2014).
On April 4, 2014, the Alabama Court of Civil Appeals issued an opinion on the effect of an employee’s preexisting condition and its impact on the issue of medical causation. See Madison Academy, Inc. v. Hanvey, 2014 WL 1328334 (Ala. Civ. App. 2014).
In Dubose Construction v. Simmons, the Alabama Court of Civil Appeals revisited an employee’s burden for obtaining compensation outside the schedule based on a seemingly routine knee injury. 2013 Ala. Civ. App. LEXIS 239 (Ala. Civ. App. Dec. 20, 2013). The employee, James Simmons, injured his knee in a workplace fall. Medical examinations revealed a torn medial meniscus which was arthroscopically repaired.
In Roblero v. Cox Pool of the Southeast, 2013 Ala. Civ. App. LEXIS 137 (Ala. Civ. App. June 21, 2013) the Alabama Court of Civil Appeals affirmed a trial court’s finding that an employer was entitled to subrogation of UIM/UM benefits paid to an injured worker.
In Bates v. Riley, the Alabama Court of Civil Appeals examined whether the unsafe use of a safety device was sufficient to support a co-employee liability claim based on the alleged willful or intentional removal of a safety device. 2013 Ala. Civ. App. LEXIS 32 (Ala. Civ. App. Feb. 1, 2013).
In McDuffie v. Medical Center Enterprise, the Alabama Court of Civil Appeals recently declined an opportunity to expand an exception to the “coming and going” rule when it examined the case of a nursing student injured on hospital grounds after her regular shift was over. 2012 Ala. Civ. App. LEXIS 249 (Ala. Civ. App. Sept. 14, 2012).
