Alabama Workers Compensation Handbook. Prepared by Carr Allison

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1 Alabama Workers Compensation Handbook Prepared by Carr Allison All Rights Reserved. Carr, Allison, Pugh Howard, Oliver & Sisson, P.C. Revised June 2005

2 MOST COMMON WORKERS COMPENSATION QUESTIONS AND ANSWERS Information Compiled by: Carr Allison 100 Vestavia Parkway Birmingham, Alabama (205) Citation for the state s workers compensation statute. Alabama Code et seq. (1975) (Note: Amendments to the Workers Compensation Act were adopted in 1992, and may not be incorporated in older versions of the Act.) SCOPE OF COMPENSABILITY 2. Who are covered employees for purposes of workers compensation? All employees other than domestic servants, farm laborers, casual employees, and those employed by employers of less than five employees, are covered. Ala. Code (1992). Employee or worker is defined to include every person in the service of another under any contract of hire, expressed or implied, oral or written, including aliens and also including minors who are legally permitted to work under the laws of the State. Ala. Code (5). 3. Identify and describe any statutory employer provision. An employer is defined as every person who employs another to perform a service for hire and pays wages directly to the person. The term also includes a service company for a self insure or any insurer, the employers insurer. Ala. Code (4). 4. What type of injuries are covered and what is the standard of proof of each: A. Traumatic or single occurrence claims. Compensation is paid to an employee for injuries caused by an accident arising out of and in the course of the employment, without regard to any question of negligence. Ala. Code The employee must prove his or her claim by a preponderance of evidence. Ala. Code (c). B. Occupational disease (including respiratory and repetitive use). Disease arising out of and in the course of employment and due to hazards in excess of those ordinarily incident to employment in general and peculiar to the occupation of the employee are compensable. The disease must be caused by a hazard peculiar to an occupation and result directly from exposure, over a period of time, to the normal working conditions of the occupation. Ala. Code The employee must prove his or her claim by a preponderance of evidence, except claims involving gradual deterioration or cumulative physical stress disorders must be proven by clear and convincing evidence. Ala. Code (c).

3 5. What, if any, injuries or claims are excluded? Claims involving sexual harassment, Busby v. Truswal, 551 So. 2d 332 (Ala. 1989), claims where the employee has misrepresented prior injuries after being accepted for employment, Ala. Code (1992 Supp.), and idiopathic or unexplained falls, Slimfold Manufacturing Co. v. Martin, 417 So. 2d 199 (Ala. Civ. App. 1991), are all excluded. 6. What psychiatric claims or treatments are compensable? The term injury does not include a mental disorder or injury that has neither has been produced nor proximately caused by some physical injury to the body. Ala. Code (9) (1992). See Goolsby v. Family Dollar Stores of Alabama, Inc., 689 So. 2d 104 (Ala. Civ. App. 1996) (holding an employee who was abducted during a store robbery then later developed post traumatic stress disorder from robbery was not entitled to compensation under the Act for that disorder). 7. What are the applicable statutes of limitations? The statute of limitations for accident and occupational disease cases (for injuries occurring after August 1, 1992) is two years from the date of the accident or two years from the date of last payment of compensation (not medical) benefits. Ala. Code , (1992) (Note the latter is the occupational disease statute and time runs from the date of last exposure.) For occupational disease cases occurring prior to August 1, 1992, the statute of limitations was on year from the date of last exposure. Sims v. Union Underwear, 551 So. 2d 1078 (Ala. Civ. App. 1989). For cumulative trauma injuries, the two year statute of limitations runs two years from the date of last exposure as well. (i.e. carpal tunnel syndrome). For death claims, the statute is two years from the date of death, but in no event may a claim be filed if the date occurs more than three years from the date of the accident. Ala. Code (1992). 8. What are the reporting and notice requirements for those alleging an injury? Although the statute requires written notice, case authority allows actual notice to suffice. Notice must be within five days or the employee loses the right to benefits until actual notice is received. If notice is not provided within 90 days, there is an absolute bar to compensation. Ala. Code (1992.). Notice must be fairly specific. Nabisco Biscuits Co. v. Slimp, 660 So. 2d. 991 (Ala. Civ. App. 1993). The employer must have actual notice if the employee s injury was connected to the employee s work activities. The fact that the employer is aware that the employee has a medical problem is not, by itself, sufficient to charge the employer with actual knowledge. Russell Cole Co. v. Williams, 550 So. 2d (Ala. Civ. App. 1989). 9. Describe available defenses based on employee s conduct: A. Self-inflicted injury. Such injuries are not compensable but the employer has the burden of proving the injury was selfinflicted. Ala. Code , 51 (1992). B. Willful misconduct, horseplay, etc. Injuries caused by an employee s willful misconduct are not compensable; however, the burden of proving employee s willful misconduct is placed on the employer. Ala. Code s , 51. Willful misconduct includes all conscious or intentional violations of law or prescribed rules of conduct. See Sun Papers, Inc. v. Jerrell, 411 So. 2d 790 (Ala. Civ. App. 1981). Injuries incurred during horseplay may not be compensable if the horseplay constitutes a substantial deviation from the employment. See Walden v. Glaze & Son, et. al., 616 So. 2d 357 (Ala. Civ. App. 1992) (employee involved in horseplay with co-employees after work sustained injury when he stumbled over a jack;

4 claim denied because employee substantially deviated from employment). C. Injuries involving drugs and/or alcohol. For injuries occurring prior to August 1, 1992, only intoxication from alcohol was a defense. New amendments to the Act provide that a positive DOT drug test (49 C.F.R. Part 40) creates a conclusive presumption of impairment from illegal drugs and precludes compensation. Wording error in this amendment may still enable coverage for medical benefits. Ala. Code (1992). Further, one must show that the impairment from illegal drugs was the proximate cause of the claimant s injury. Ross v. Ellard, 686 So. 2d 1190 (Ala. Civ. App. 1996); Latham v. McInnis, 689 So. 2d 184 (Ala. Civ. App. 1997). 10. What, if any, penalties or remedies are available in claims involving fraud? Case law has established that an employee may have a claim against his or her employer for fraudulent misrepresentations that relate to a workers compensation claim. The Alabama Supreme Court has held that if such a claim is supported by clear and convincing proof, a claim for fraud will not be barred by the exclusivity provision of the Act. Lowman v. Piedmont Executive Shirt Mfg. Co., 547 So. 2d 90 (Ala. 1989). Legislation effective August 1, 1992, makes it a felony for an employee to make a false or fraudulent material statement or misrepresentation for the purpose of obtaining workers compensation benefits. Ala. Code 13A (1975). 11. Is there a defense for falsification of employment records regarding medical history? Prior to August 1, 1992, a common law defense was available if there was a material representation, relied upon by the employer, and there was a causal connection between the earlier injury and the most recent injury. Southern Energy Homes, Inc. v. Key, 603 So. 2d 1036 (Ala. 1992). The 1992 amendments provide a statutory defense under certain circumstances. To deny compensation based upon misrepresentations regarding physical or medical history, the employer must provide a written warning stating MISREPRESENTATIONS AS TO PRE- EXISTING PHYSICAL OR MENTAL CONDITIONS MAY VOID YOUR WORKERS COMPENSATION BENEFITS or the defense will not be available. Ala. Code (1992). 12. Are injuries during recreational and other non-work activities paid for or supported by the employer compensable? They can be depending on the circumstances. A three part analysis is used to determine whether the accident from the activity is compensable, from Professor Larson s treatise. Recreational or social activities are within the course of employment when: 1. They occur on the premises during a lunch or recreation period as a regular incident of the employment; or 2. The employer by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of employment; or 3. The employee derives substantial benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life. Board of Managers of the City of Birmingham Retirement and Relief System v. Elliott, 532 So. 2d 1019, 1022 (Ala. Civ. App.) quoting 1A.A. Larson, The Law of Workers Compensation, 22.00, at 5-87 (1985). In the Board of Managers case, a fireman was injured in a basketball game on the premises. The Court found it to be compensable because it was an employer sanctioned recreation activity encouraged by the employer. But see,

5 St. Paul Insurance Co. v. Harris, 758 F. 2d 1450 (11th Cir. 1985) denying benefits to employee injured in a basketball game that was played after the hours of employment. 13. Are injuries by co-employees compensable? Only those not resulting from willful conduct, which has been interpreted to require intent to injure. Willful conduct injuries can be excluded under the definition of injury under the statute, which states Injury does not include an injury caused by the act of a third person or fellow employee intended to injure the employee because of reasons personal to him or her and not directed against him or her as an employee or because of his or her employment. Ala. Code (9) (1992). One exception, which has produced considerable litigation, occurs where the co-employees fail to install or removes a safety guard or device provided by the manufacturer for the machine. Ala. Code (1992); see also Smith v. Wallace, 681 So. 2d (Ala. 1995); Moore v. Reeves, 589 So. 2d 173 (Ala. 1991); Reed v. Brunson, 527 So. 2d. 102 (Ala. 1988). These situations cause suits against the employer and the co-employee. 14. Are acts by third parities unrelated to work, but committed on the premises, compensable (e.g. Irate paramour claims)? Injury does not include an injury caused by the act of a third person or fellow employee intended to injure the employee because of reasons personal to him or her and not directed against him or her as an employee or because of his or her employment. Ala. Code (9) (1992). BENEFITS 15. What criterion is used for calculating the average weekly wage? A 52 week wage history is used to calculate an average. If that information is unavailable, compare the wages of a similarly situated employee. Ala. Code , (1992). Average weekly wage should include the employer-paid portion of health, life and disability insurance premiums unless the same continue to be made available to the employee during compensable lost time. Ala. Code (6). 16. How is the rate for temporary/lost time benefits calculated, including minimum and maximum rates? The rates is two-thirds of the average weekly wage, subject to certain maximum and minimum amounts. The Alabama legislature publishes new maximum and minimums every July 1 st. Currently, for injuries occurring between July 1, 2003, and July 1, 2004, the maximum is $ per week and the minimum is $ per week. If the average weekly wage is less than the minimum, the temporary total rate is the actual wage earnings. Ala. Code (a) (l) (1992). 17. How long does the employer/insurer have to begin temporary benefits from the date of disability begins? Unless good cause can be demonstrated, any installment of compensation must be paid within 30 days after it becomes due or a 15% penalty shall be paid in addition to the installment.. Ala. Code (b). 18. What is the waiting or retroactive period for temporary benefits (e.g. must be out days before recovering benefits for the first days)? Compensation for an injury begins with the fourth day after the disability and if the disability from the injury exists for a period of more than twenty-one (21) days, compensation for the first three days after the injury shall be added and payable with the first installment due after the expiration of the twenty-one (21) days. Ala. Code (b).

6 19. What is the standard/procedure for terminating temporary benefits? Generally, temporary total benefits are payable until the employee reaches maximum medical improvement. Accustar, Inc. v. Staples, 598 So. 2d 923 (Ala. Civ. App. 1992). However, benefits can also be terminated if the employee returns to work earning equal or greater wages than that which they earned at the time of the injury, even if not at maximum medical improvement. No cases require court approval before suspension of temporary total disability benefits. Neither case nor statutory law require that he employee return to work before suspicion of such benefits. 20. Is the amount of temporary total disability paid credited toward the amount entitled for permanent partial disability? The number of temporary total disability weeks is credited toward the calculation of a body as a whole permanent partial disability award. However, no credit is received for temporary total disability weeks paid in the calculation of the number of weeks due for a scheduled member injury. Injuries to the back, shoulder, head, etc. Are not deemed scheduled injuries, and calculation of benefits due depends upon loss of ability to earn. Ala. Code (a) (3) (1992). 21. What disfigurement benefits are available and how are they calculated? For serious disfigurement, not resulting form the loss of a member or other injury specifically compensated, materially affecting the employability of the injured person in the employment which he was injured or other employment for which he was qualified then, the employee is entitled to 2/3 of his average weekly wage up to 100 weeks. Case authority requires that disfigurement result in a loss of employability before permanent compensation may be awarded. If there is a loss of employability, the employee is entitled to two-thirds of the difference in the loss of earning capacity, subject to a $ per week cap. The cap would not apply if the injury results in permanent and total disability. In the latter case, only statutory maximums and minimums would govern the amount owed. Checker s Drive-In Restaurant v. Brock, 603 So. 2d 1066 (Ala. Civ. App. 1992).

7 22. How are permanent partial disability benefits calculated, including the minimum and maximum rates: A. How many weeks are available for scheduled members/parts and the standard for recovery. The maximum number of weeks for each scheduled member are as follows: Bodily Parts Maximum Weeks thumb 62 first (index) finger 43 second finger 31 third finger 22 fourth finger 16 first phalange of thumb or finger two or more phalanges great toe 32 toes other than great toe 11 first phalange of any toe ½ toe two or more phalanges entire toe hand(includes amputation between elbow and wrist) 170 arm 220 foot (includes amputation between Knee and ankle) 139 leg 200 eye 124 complete and permanent hearing loss: both ears 163 one ear 53 eye and a leg 350 eye and arm 350 eye and hand 325 eye and foot 300 two arms (other than at shoulder) 400 two hands 400 two legs 400 two feet 400 two feet 400 one arm and the other hand 400 one hand and one foot 400 one leg and the other foot 400 one hand and one leg 400 one arm and one foot 400 one arm and one leg 400 ½ thumb or finger entire thumb or finger (but if more than one finger involved maximum is the amount for a hand) These numbers are not off-set by the number of weeks of temporary total disability benefits due. Weekly rates are calculated based upon two-thirds of the average weekly wage, but are subject to a $ cap. Ala. Code (3) and (b) (1992).

8 B. Number of weeks for whole person and standard for recovery. Up to 300 weeks are available for permanent partial disability (less than 100% disability). Temporary total disability weeks paid are deduction from this 300 week calculation. The calculation is based upon the difference in earnings at the time of injury and the employee s ability to earn at the time of trial. Ala. Code (a) (3) (g) (1992). 23. Are there any requirements/benefits for vocational rehabilitation, and what is the standard for recovery? The employee is required to accept vocational retraining if requested by the employer. The employer is required to provide vocational retraining if suggested in writing by the treating physician and vocational specialist. Ala. Code (c) (1992). 24. How are permanent total disability benefits calculated, including the maximum and minimum rates? Calculation of benefits is based upon two-thirds of the average weekly earnings, subject to maximum and minimum amounts. For injuries occurring between July 1, 2003 and July 1, 2004, the maximum rate is $ The minimum rate during the same time is $161.00, unless the average weekly wage is less than the minimum, which would require use of the average weekly wage. 25. How are death benefits calculated, including the minimum and maximum rates: A. Funeral expenses. Prior to August 1, 1992, the burial allowance was $1, Effective August 1, 1992, the burial allowance was increased to $3, Ala. Code (1992). B. Dependency claims. If there are no dependents, the estate is entitled to a one time $ lump sum payment. Ala. Code (1) (g) (1992). If there is one dependent, benefits are payable to that dependent based upon 50% of the employee s average weekly wage. If there are two or more dependents, benefits are payable at two-thirds of the average weekly earnings (subject to maximum and minimum tables). Ala. Code (1) (1992). Compensation is paid during the period of dependency but not to exceed 500 weeks. Ala. Code (2). 26. What is the criteria for establishing a second injury fund recovery? The Second Injury Trust Fund was abolished by the 1992 amendments. 27. What are the provisions for re-opening a claim for worsening of condition, including applicable limitations periods? A claim may not be re-opened because of a worsened condition if settlement has been approved by a judge and that benefit has been closed. Settlements may be set aside for fraud, undue influence, or coercion, provided application is made therefor within six months of the settlement. Ala. Code (1992) However, be aware that the Court of Civil Appeals has recently held that a settlement can be set aside if the settlement fails to do justice : See Johnson v. Aladan Corporation 710 So. 2d (Ala. Civ. App. 1997). Also, an employer may petition a judge to set aside an award of permanent and total disability if, as the result of physical or vocational rehabilitation, or otherwise, the employee is able to obtain gainful employment. Ala. Code (a) (4)( h) (1992). Finally, an employee can petition the court to reopen his case if settled for the value of his impairment rating, he loses his job within 300 weeks of the settlement, and he can present evidence that he has suffered an

9 additional vocational disability under (a) (3) (i) of the Workers Compensation Act. 28. What situation would place responsibility on the employer to pay an employee s attorney fees? The statute provides for attorney s fees to be paid out of the employee benefits, not in addition to them. A court has much discretion in this area on the payment of attorney s fees. The statute precludes an attorney s fee without approval of the judge. Arguably, if the employer is paying compensation benefits without dispute, an attorney would not be entitled to a fee. An attorney s fee is limited to 15% of a compensation award. Ala. Code Case law allows a judge to award a lump sum attorney s fees (based upon 6% discount of attorney s fee) based upon the life expectancy of the employee in a permanent total case. Ex parte St. Regis Corp., 513 So. 2d 160 (Ala. 1988). EXCLUSIVITY/TORT IMMUNITY 29. Is the compensation remedy exclusive: A. Scope of immunity. The exclusive remedy provision is statutory. Ala. Code (1992 Supp.). However, there are exceptions. B. Exceptions (intentional acts, contractual waiver, dual capacity, etc.). The exclusive remedy provision may not protect the employer/insurer from he following claims: (1) fraud, Lowman v. Piedmont Executive Shirt Mfg. Co., 547 So. 3d 901 (Ala. 1989); (2) outrageous conduct, Continental Casualty Insurance v. McDonald, 567 So. 2d 1208 (Ala. 1990); (3) retaliatory discharge for filing a workers compensation claim, Ala. Code (1975); Twilley v. Daubert Coated Products, Inc. 536 So. 2d 1364 (Sept. 30, 1988); and (4) sexual harassment, Busby v. Truswal System Corp., 551 so. 2d. 322 (Ala. 1989). In addition, co-employees may be subject to claims for willful conduct and for removal of safety guard. See Ex parte Martin, 733 So. 2d 392 (Ala. 1999); Ala. Code ; See also Moore v. Reeves, 589 So. 2d 173 (Ala. 1991). 30. Are there any penalties against the employer for unsafe working conditions? Statutory duty to provide a safe workplace is imposed upon the one who has control or custody of the employment or place of employment. Ala. Code (a) (1975); see also, Procter & Gamble Co. v. Staples, 551 So. 2d 949 (Ala. 1989). Employers have been sued under claims of failing to provide a safe workplace, but these claims should be barred by the exclusivity provision of the Workers Compensation Act. Co-employees may be subject to direct action for willful and intentional actions or violation of a specific written safety rule. Ala. Code (c) (1992). 30. What is the penalty, if any, for an injured minor? If the minor was employed in violation of law, the penalty is compensation of twice the ordinary amount. Ala. Code (1992). Otherwise there is not penalty. 31. What is the potential exposure for bad faith or claims handling? There is no cause of action for bad faith handling of claims in Alabama. Farley v. CNA Insurance Co., 576 So. 2d 158 (Ala. 1991). Where the employer/insurer has some ulterior motive for denying benefits, however, a cause of action for outrageous conduct might exist. Prior to this year, only one Alabama Supreme Court decision had affirmed a jury verdict for outrageous conduct arising out of the workers compensation environment. Continental Casualty Ins. Co. v. McDonald, 567 So. 2d 1208 (Ala. 1990) (insurer held liable for intentional infliction of emotional distress for purposefully withholding benefits in an attempt to coerce acceptance of a small lump sum settlement); But see, Travelers Indem. Co. v. Griner, 2001 Ala. LEXIS 123 (Ala. Civ. App. April 20, 2001), where

10 court upheld jury verdict for $300,000 in compensatory and $200,000 in punitive damages based upon insurance company conduct concerning refusal to provide medical treatment and services. 32. What is the exposure for terminating an employee who has been injured? Termination because of a the claim may entitle the employee to a jury trial with compensatory and punitive damages. A prima facie case exists if the employee is terminated after filing a workers compensation claim. The burden then shifts to the employer to present valid reasons for the termination other than for solely making a claim for workers compensation benefits. Ultimately the claim can go to a jury. Coated Products, Inc., 536 So. 2d 1364 (Ala. 1988); see also Ala. Code (1992). It is important to remember that an employee must prove that the employer terminated the employee solely for seeking workers compensation benefits. Ex Parte Aldridge. If an insured wishes to terminate an employee who has filed or sought workers compensation benefits, they should consult their attorney. THIRD PARTY ACTIONS 33. Can third parties be sued by the employee? Yes. Ala. Code (1992). 34. Can co-employees be sued for work-related injuries? Co-employees may be subject to claims for wilful conduct as defined under the Act. There are four general categories: (1) purposefully and intentionally inflicting injury, (2) intentionally removing or failing to install a safety device, (3) knowledge of another employee s intoxication that causes injury, and (4) wilful and intentional violation of a written safety rule. Ala. Code See also Moore v. Reeves, 589 So. 2d 173 (Ala. 1991). 35. Is subrogation available? The employer/insurer may subrogate for both compensation and medical benefits paid. Ala. Code (a) (1992). See also Ex parte BE&K Construction Co., 728 So. 2d 621 (Ala. 1998) (holding that employer has right to subrogation for future medical benefits against third party recovery). Subrogation amount is subject to reduction for payment of attorney fees in obtaining third party recovery. Plaintiff s attorneys are entitled to receive payment for protecting our lien in the same proportion/percentage as that which he has agreed to work for the Plaintiff/employee in protecting the third-party interest/claim. MEDICALS 36. Is there a time limit for medical bills to be paid, and are penalties available for late payment? The employee can make claim for medical benefits even if a claim was not filed within the typical two-year statute of limitations period. Ex Parte Tuscaloosa County, 522 So. 2d. 782 (Ala. 1988). Under the 1992 amendments, all undisputed medical bills must be paid within 25 working days of receipt of claims or a ten (10) percent penalty can be imposed. Ala. Code (h) (1992). 37. What, if any, mechanisms are available to compel the production of medical information (reports and/or an authorization) at the administrative level? Alabama adjudicates workers compensation claims in the state judicial system applicable to all civil and criminal actions. Medical information and record may therefore be obtained by ordinary discovery methods. Alternatively, a statutory provision allows either party to obtain the employee s medical records without notice to opposing party. Ala. Code (b).

11 38. What is the rule on choice of physician? The employer can designate the first physician. If the employee is dissatisfied, and if further treatment is necessary, the employer must provide a panel of four physicians from which the employee may choose another treating physician. Ala. Code (a) (1992). However, if surgery is recommended, and the Plaintiff is unsure as to whether they wish to move forward with surgery, and request a second panel of four. 39. What is the standard for covered treatment (e.g. chiropractic care, physical therapy, etc.)? There are no direct provisions on point other than the section pertaining to physicians. Ala. Code (a) (1992) Dicta in case law suggests that the employer/insurer may limit referrals if it make its position known on the issue at an early date. Transco Energy v. Tyson, 497 So. 2d 184 (Ala. Civ. App. 1986); Hudson Industries v. Harrell, 484 So. 2d 1099 (Ala. Civ. App. 1986). However, the employer must be careful in this area. In most circumstances an IME will not help a case unless it changes the mind of the primary treating physician and the claimant. See City of Auburn v. Brown, 638 So. 2d 1339 (Ala. Civ. App. 1993). Treatment which is deemed not medically necessary to treat the work injury can be denied under utilization review. The Department of Industrial Relations compiled an administrative code of regulations in 1996 under authority of the Workers Compensation Act which directly contradicts City of Auburn v. Brown. Until an appellate court rules that these regulations are not valid, the employer can use them to deny medical treatment that is not medically necessary, subject to court order. 40. Which prosthetic devices are covered, and for how long? Crutches, artificial members, and other apparatus are covered. Al. Code (1992). See Ex parte City of Guntersville, 728 So. 2d 611 (Ala. 1998). 41. Are vehicle and/or home modifications covered as medical expenses? In certain circumstances, the Court of Civil Appeals has held that these expenses are covered. However, in Ex parte City of Guntersville, 728 So. 2d 611 (Ala. 1998). The Court held that a specially equipped van was not an other apparatus required to be provided by employer. 42. Is there a medical fee guide or schedule, or other provisions for costs containment? Yes. A medical fee schedule governing physicians charges in available form the Department of Industrial Relations. Additionally, a committee will ultimately establish rates charged by hospitals and out-patient medical facilities. A Medical Services Board has established utilization review standards which were required by the 1992 amendments. Ala. Code (1992). PRACTICE/PROCEDURE 43. What is the procedure for contesting all or part of a claim? A petition for determination of a disputed claim may be filed by either party in the circuit which would have had jurisdiction over the parties in a tort claim. Typically, this is the county where the accident occurred or the county where the employee lives if the employer does business in that count. Ala. Code Method of adjudication: A. Administrative level. An ombudsman may be used by either party but, both parties must agree to utilization of the ombudsman. Ombudsmen doe not create a records and serve only to mediate claims. Ala. Code et seq. (1992). This mediation level offers significant opportunity of reduction of legal expenses.

12 B. Trial Court. Alabama provides for initial adjudication of workers compensation disputes by circuit court judges. These are the same judges that preside over typical civil and criminal matters. Standard rules of evidence and procedure apply in workers compensation cases, other than levels of proof required (either preponderance of evidence or clear and convincing proof, the latter for repetitive motion claims) and a provision allowing medical records to be introduced without the testimony of the treating physician. Ala. Code (1992). C. Appellate. Appeal is to the Alabama Court of Civil Appeals. Writ of Certiorari to the state supreme court may be sough afer an appellant is denied application for rehearing at the Court of Civil Appeals. There is no presumption of a correctness at the Court of Civil Appeals and decision may not be reversed if the trial court decision is supported by substantial evidence. Ala. Code (e) (1992). 45. What are the requirements for stipulations or settlements? Settlements must be court approved in order to have binding authority. Ala. Code (1992). 46. Are full and final settlement with closed medicals available? Full and final settlements are available. The 1992 amendments specifically entitle parties to settle matters involving medical payments and rehabilitation. A trial court or ombudsman with the Department of Industrial Relations must still approve the settlement. Ala. Code , 292 (1992); Stubbs v. Brookwood Medical Center, 767 So. 2d 359 (Ala. Civ. App. 2000). 48. Must stipulations and/or settlements be approved by the state administrative body? Yes. Ala. Code , 292 (1992).

13 CHECKLIST FOR COMPENSABILITY IN ALABAMA WORKERS COMPENSATION Statute of Limitations You may deny a workers compensation claim for indemnity benefits in Alabama if the accident occurred more than two (2) years ago unless indemnity/compensation benefits have been paid during that time. If compensation benefits have been paid during that time, you may deny benefits if it has been more than two years since the last compensation benefit has been paid. Note: You are still obligated to pay medical benefits regardless of whether the statute has run. Notice You may deny all workers compensation benefits if no notice of an accident has been given to a management level employee with 90 days of an accident. Note: Notice does not have to be written. Either oral notice or actual notice to a management level person is sufficient. Stress No benefits are owed if the claim is for psychological stress unless the stress is related to an actual physical injury that is related to a compensable workers compensation accident. Alcohol/Drugs No benefits are owed if the employee was intoxicated at the time of the accident. Medical benefits are owed, but not compensation benefits, if the employee tested positive for drugs. Note: You may still have to prove some element of causation. For instance, if the employee was a passenger in a vehicle, his drug use would have no relation to an automobile accident. However, if he fell, overturned an object, or even if he was lifting at the time, the drug use could be argued to be the cause of the injury. MEDICAL ISSUES Independent Medical Examinations You cannot use an independent medical examination in Alabama to question the proposed surgery or treatment of your designated treating physcian. Payment of Medical Bills by another Provider If medical bills have been paid by some other insurance carrier, you are not obligated to pay those bills under workers compensation. Unauthorized Medical Treatment You are not obligated to provide treatment for unauthorized medical services performed by an unauthorized medical doctor. Note: If your authorized doctor refers a patient to another doctor the latter may become an authorized physician. Misconduct/Horseplay You are not obligated to provide either medical or compensation benefits if the claimant s injury arose from horseplay or misconduct of that claimant. Intentional Injuries You are not obligated to provide either medical or compensation benefits if the claimant s injury arose from

14 the claimant s intent to injure himself. Claimant has Returned to Work at Pre-Injury Earnings You are not obligated to pay more than the medical impairment rating if the employee returns to work making as much or more money than pre-accident. Retaliatory Discharge Always discourage a store manager from discharging any employee who has been injured on the job without discussing the injury with an attorney in Corporate Legal. Average Weekly Wage Calculate the average weekly wage by averaging the employee s gross weekly earnings for a full 52 weeks (or such length of time as he/she has been an employee). Include in that figure the weekly cost to the employer (not the portion paid by the employee) of health, life and disability insurance premiums. Death Benefits If an employee dies without any dependents, you only owe to his estate $7,500 in compensation benefits. Temporary Total Disability Benefits Pay TTD only to such time as the doctor indicates the employee has reached maximum medical improvement (MMI). At that point you may either settle the case in a lump sum or begin making payments depending upon the permanent partial disability rating. Permanent Partial Disabilities No permanent partial disability payment should ever exceed $220 per week. If a doctor indicates that the claimant s injuries are to a scheduled member (foot, leg, hand, finger, toe, etc.) Use the calculation for that scheduled member only in computing the permanent partial disability. Never use the doctor s body as a whole rating. Settlements All Settlements must be court approved in Alabama. You may negotiate to close out future vocational rehabilitation and future medical benefits if additional money (above the calculated amount for the disability itself) is paid. If the settlement figure is based upon a medical impairment to the body as a whole (as opposed to a scheduled member), you should negotiate to pay some additional money to preclude the claimant from returning to court to make claim for additional compensation if he/she should lose her job within 300 weeks. AVERAGE WEEKLY WAGE The determination of the average weekly wage is the starting point for the calculation of any benefits due under the Workers' Compensation of Alabama. Law: (b) & (6) Where possible use a 52 week wage earning history of the employee. Add the total gross earnings during this 52 week wage and divide by 52. Remember that for accidents occurring after 8/1/ (6) says to include as fringe benefits the employer paid portion of health, life, and disability insurance premiums. Accidents prior to 8/1/92 might include the costs of other fringe benefits such as value of car provided by employer, retirement

15 benefits provided by employer, uniforms, etc. Example: Total Gross earnings during entire 52 week period prior to accident is $10,500. The employee receives health and life insurance that costs a total of $50 each week. The employee pays $10 of this and the employer kicks in $40. $40 X 52 = $2,080 + $10,500 = $12,580 / 52 = $ which would be the AWW Exceptions: 47. During that 52 week period, the employee lost more than 7 consecutive calendar days. Add the total gross wages during the 52 weeks and divide by the number of weeks remaining after deduction of the lost time. 2. The employee has not worked 52 weeks. The Judge will "do the right thing." Judge will first divide the gross earnings by the number of actual weeks worked and will use the resulting figure if the results are "just and fair" to both parties. If unfair: b. Use the earnings of a "similarly situated" employee; b. Judge has much discretion in this area: Charles Henderson, d/b/a Henderson Logging v. Fred Johnson, [AV , October 15, 1993], So. 2d (Ala. Civ. App. 1993) (Lawrence County, Judge Reich). This case deals with a dispute over how to calculate a plaintiff's average weekly wage. The plaintiff worked as a logger for the defendant and was injured after working only seven weeks. Both parties agreed that using his wages from this 7 week period would not be equitable. Both felt that this was not an accurate representation of what a logger makes. A logger's pay can be reduced drastically when things like the weather keep him from working. The plaintiff felt that his average weekly wage should be determined based upon his prior 39 week employment with another logging company, or in the alternative based upon the wages of another employee of the defendant. The court rejected both. The court held that when it is impracticable to apply formulas for determining average weekly wage it is "left to the sound judgment and judicial discretion of the trial court."

16 TEMPORARY TOTAL DISABILITY (a)(1) a. Generally 2/3 of the AWW; b. Subject to the Maximum and Minimum Tables: Weekly Compensation Calendar Year State's AWW Effective Date Maximum Minimum 1976 $ /1/77 $120 $ /1/ /1/ /1/ /1/ /1/ /1/ /1/ /1/ /1/ /1/ /1/ /1/ /1/ /1/ /1/ /1/ /1/ /1/ /1/ /1/ /1/ /1/ /1/ /1/ /1/ /1/ /1/ /1/ Note: Effective Date above refers to the date of the accident. Thus if your accident occurred on 3/1/94, the maximum would be $419 per month. Also remember that if the calculated average weekly wage is less than the minimum you use the actual AWW and not the minimum. For accident of 3/1/94, with an AWW of $85, that would be your TTD rate. With an AWW of $150, your calculated TTD rate should be $100, but since that is less than the $115 minimum, you use the $115 as the TTD rate. c. Can last indefinitely. Once was capped at 300 weeks, but no longer. TTD lasts for length of MMI. Note case law: Acustar, Inc. v. Staples, 598 So. 2d 943 (Ala. Civ. App. 1992). The following language is found regarding maximum medical improvement date: "The appellant correctly asserts that permanent partial disability is based on one's condition after maximum improvement has been reached; however, when maximum medical improvement is reached depends on the circumstances of each case, and prior to reaching

17 TEMPORARY PARTIAL DISABILITY that point, temporary total disability may be awarded during the recovery period. The trial court's choice to utilize the lower figure, i.e., based on partial disability rather than temporary total, during the recuperating period, is supported by the evidence of [the employee's' attempts to return to work and the medical testimony that she was only partially disabled, rather than totally disabled during this time. The assignment of the extent of disability is a discretionary function of the trial court and we will not disturb it when there is evidence to support that decision." Compensation for employee who is no longer totally disabled, but is able to return to work with some limitations (a)(2) a. Can't extend beyond 300 weeks!! b. Subject to the maximums in the table above, but the minimums do not apply. c. 2/3 of the difference in AWW and what he/she is able to earn in the partially disabled condition. Thus, if AWW was $300 and returns to work making $150: PERMANENT PARTIAL DISABILITY (a)(3) $300 - $150 = $150 X 2/3 = $100 [Note that the $115 minimum for a 1994 injury would not apply for TPD] If AWW is $1500 and returns to work making $600: $ $600 = $900 X 2/3 = $600 [Note: Maximum of $419 would apply if this accident occurred on 2/1/94] a. Scheduled Member Injuries (a)(3) i. Do not deduct the number of weeks of TTD paid; ii. Cap of $220 per week applies under ; iii. 2/3 of AWW X weeks in schedule found at (a)(3)a Examples: (1) Amputation of the ring finger of left hand with AWW of $900 per week: $900 X 2/3 = $600 [Exceeds $220 cap so use$220] $220 X 22 = $4,840 (2) 50% impairment, according to the doctor, to the right arm, with AWW of $1500: $1500 X 2/3 = $1,000 [Exceeds $220 cap so use $220] 222 weeks (per section 13 of schedule) X.50 = 111 weeks X $220 = $24,420 Remember: What if only 11 weeks have expired from date of MMI at the time the settlement is approved by the judge?

18 11 X $220 = $2, weeks commuted = X $220 = $20, $2,420 = $23,190.90[This is a savings of $1,229.10] (3) 10% impairment, according to the doctor, to the left leg, with AWW of $240: $240 X 2/3 = $160 [Doesn't exceed $220 cap so use $160] 200 weeks (per section 16 of schedule) X.10 = 20 Weeks X $160 = $3,200 Note: if 20 weeks have passed since MMI, would not discount the weeks and the settlement would be for $3,200 iv. Remember that lump sum settlement is used only if both parties agree!! b. Unscheduled Permanent Partial Injuries -- Or Injuries to the Body as a Whole (a)(3)g i. $220 Cap of also applies ii. 300 Week limitation for any unscheduled member injury iii. Number of Weeks of TTD paid is deducted from weeks of Scheduled Member Injury] of PPD owed [Unlike PPD calculation iv. Percentages used in calculation refer to difference in earning capacity...judge may use impairment rating of the doctor, vocational rating from vocational experts, or may simply pull a number from the air after hearing all of these v. Under 1992 amendments, use doctor's impairment rating if employee has returned to work making as much or more than pre-accident Example 1: Employee with AWW (including fringe benefits) of $1500 per week and date of accident of 10/1/92. Received TTD payments for 52 weeks when reached MMI and date of settlement is 10/1/94. Judge sees 10% rating from judge, 20% vocational rating from employer's expert and 100% rating from plaintiff's expert and rules 30% disability: TTD rate should start with $1500 X 2/3 = $1,000, but $400 cap for 10/1/92 injury means he was paid TTD at $400 per week for 52 weeks. 52 weeks between 10/1/93 and 10/1/94 (date of settlement) are uncommuted: $1500 X 2/3 = $1,000 X.30 = $300 [But again $220 cap for PPI applies] $220 X 52 = $11,440 ** 300 weeks total allowed - 52 weeks of TTD paid = uncommuted paid above = 196 weeks remaining Commuted value of 196 weeks = X $220 = $38, $11,440 (See ** above) = $50,026.40

19 Remember that both employer and employee must agree to commute and pay in lump sum. If either side objected, the lump sum of $11,440 would be paid and then $220 per week for 196 remaining weeks!! Example 2 Employee's date of accident is 8/1/88. Employer denied all benefits claiming there was no accident. Doctor says 5% to the body as a whole from back injury. Employer's vocational expert says 0% disability. Employee's expert says 100% disability. Judge awards 20%. AWW (including fringe benefits) is $900. Judge determines that MMI was reached on 8/1/90 and issues ruling on 8/1/94. a. TTD owed: $900 X 2/3 = $600 [But per tables above Maximum for this date would be $344] Date of Accident to MMI date = 104 weeks $344 X 104 = $35, b. PPD owed: $900 X 2/3 = $600 X.20 (PPD rating) = $ (weeks of TTD paid) = 196 PPD owed [Note: wouldn't commute these weeks at all since there are 208 weeks between date of MMI and court's ruling] $120 X 196 = $23,520 PPD + 35,776 TTD Award $59,296 Total Award by Court Example 3: Employee's Date of Accident is 9/1/92. AWW is $300. Received TTD until 1/1/94 and returned to work making $300 per week. Judge's ruling is on 2/1/94. Doctor says 10% impairment to the body. Plaintiff's vocational expert says 60% disability: Received TTD of $200 per week for 68 weeks between 9/1/92 and 12/31/93. Use Impairment rating of the doctor since employee has returned to work at same or greater pay ( (a)(3)i since accident was after 8/1/92, the effective date of this provision). $300 X 2/3 = $200 X.10 = $20 4 weeks uncommuted until 2/1/94: $20 X 4*** = $ weeks (TTD paid) = (uncommuted calculated at *** above) = weeks commuted = X $20 = $4, $80 (*** above) = $4, Total Settlement based upon 10% settlement. Note: Remember that the attorney (if employee represented by attorney) is entitled to a fee of 15% of the commuted value of the settlement, which is deducted from the amount due the employee. PERMANENT TOTAL DISABILITY (a)(4) a. The $220 cap does not apply. The only dollar limitation or requirement is from the tables of maximum/minimum benefits that would also apply to temporary total disability. b. The 300 week limitation does not apply. Payments are due for the extent of the permanent total disability which could be lifetime.

20 c. Total disability does not mean absolute helplessness or entire physical disability. Requires only proof of inability to obtain reasonable gainful employment. The court should consider age, educational level, and experience as they affect employability and earning capacity, in addition to the percentage of loss of earning capacity and impairment to the body. M & H Valve Company v. Burt, So. 2d (Ala. Civ. App. 1989) d. If court orders P & T, employer can move to set the award aside with evidence that employee no longer suffers from P & T disability (a)(4)b e. Court may order lump sum attorneys fees, but not lump sum payment of compensation award without approval of both parties. Example: DEATH BENEFITS Assume employee with AWW of $1200 per week and an accident date of 10/1/92. TTD benefits have been paid through the date of the court's order at $400 per week. Employee is 50 years old on date of order. Court finds permanent total disability. $1200 X 2/3 = $800 [P/T rate reduced to $400 by virtue of maximum tables above] Life expectancy (per Alabama life expectancy tables) is years or 1,319 weeks. Commuted value of 1,319 weeks is weeks X $400 = $271, Lump sum attorney's fee would be $271, X.15 = $40, Thus, if employer chooses to pay entire amount in a lump sum, employee would receive $230, and attorney would receive $40, If employer chooses to pay by the week, court could order payment of $40, to attorney and $400 - $60 (A/F) = $340 each week to employee. a. Dependents include wife (even common law wives) and dependent children as defined in (2)-(3). b. If deceased leaves one dependent, he/she receives 50% of the AWW. c. If deceased leaves two or more dependents, they receive 2/3 of AWW. d. Dependents receive benefits for 500 weeks or for the length of their dependency. Note: If wife remarries or if child reaches 18, they lose full dependency status. e. Maximum/Minimum provisions of the table above for TTD applies to death benefits as well. f. Their may be partial dependents entitled to receive benefits. [See case summary below] g. If employee dies without dependents as the result of accident occurring after 8/1/92 (effective date of new W/C act), the employee's estate receives a one-time payment of $7, (1) g. h. Partial Dependent Calculations [A Zoo!!] A Mobile trial court found it sufficient that parents and siblings were dependents even though the employee had been employed less than one month. The court relied upon testimony that the deceased: contributed to support of these partial dependents when he worked other jobs; purchased a refrigerator, washing machine, and a VCR. There appears to be a maximum and minimum in addition to the "proportion...of earnings regularly contributed" found in (2) says

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