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Claude Hundley and Rodney C. Lewis Lanier Ford Shaver & Payne PC Huntsville, Alabama Jeffrey W. McKinney McKinney Braswell & Hill LLC Huntsvil1e, Alabama
Table of Contents § 3.01 Introduction § 3.02 Counseling the Injured Worker
§ 3.03 Who is Eligible for Benefits
3-1 3-1 3-3 3-4 3-4 3-4 3-5 3-5 3-5 3-8 3-8 3-10 3-12 3-13 3-13 3-13 3-13 3-14 3-14 3-15 3-15 3-16
§ 3.04 Important Time Limits
[1 J  Notice to the Employer Statute of Limitation
§ 3.05 Scheduled and Unscheduled Injuries
[1 J   Scheduled Injuries Non-scheduled Injuries Scheduled v. Non-scheduled Injuries
§ 3.06 Occupational Diseases § 3.07 Compensability and Benefits § 3.08 Vocation Rehabilitation
§ 3.09 Claims Processing
 Ombudsman Program [a] Ombudsman [b] Benefit Review Conference [c] Attorney Fees [d] Disputes Between Insurance Companies Processing Your Claim Through the Circuit Court (a] Complaint [b] Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Topic 3 Table of Contents
§ 3.10 Penalties Recoverable Against the EmployerlInsurance Company
 10% Penalty in Delay in Payment [a] Old Act [b] 1992 Workers' Compensation Act Double Penalty for Failure to Secure Payments of Compensation [a] Old Act [b] 1992 Workers' Compensation Act Torts Double Penalty for Illegally Employed Minors
[3J [4 J
3-16 3-16 3-16 3-17 3-17 3-17 3-18 3-18 3-18 3-18 3-19 3-19 3-20 3-20 3-22 3-24 3-25 3-25 3-25 3-26 3-27 3-27 3-28 3-28 3-28 3-28 3-28 3-28 3-31 3-32 3-32 3-33 3-34 3-35 3-35 3-39
§ 3.11 Benefits
Temporary Total Disability Temporary Partial Disability Permanent Partial Disability raj Generally [b] Under the 1992 Workers' Compensation Act  Permanent Total Disability [5J Second Injuries  Calculations of Average Weekly Wage [a] Under the Old Act [b] Under the 1992 Workers' Compensation Act [7J Death Benefits raj Under the Old Act [b] Under the 1992 Workers' Compensation Act  Funeral Expenses raj Under the Old Act [b] Under the New Act [9J Medical/Vocational Benefits raj Under the Old Act [b] Under the 1992 Workers' Compensation Act  Refusal of Suitable Employment .. "."" [II] Workers' Compensation Benefits Not Exempt From Child Support  Third-Party Cases  
§ 3.12 Defenses
 "Accident"/"Arose Out of"/"In the Course of" [a] Under the Old Act [b] Under the 1992 Workers' Compensation Act
Topic 3 Table of Contents (con't)
    Excluded Employers and Employments Independent Contractors Exclusivity Dependency/No Dependents [a] Under the Old Act [b] Under the 1992 Workers' Compensation Act  Statute of Limitations [a] Under the Old Act [b] Under the 1992 Workers' Compensation Act  Notice  Other Defenses  Willful Misconduct  Second Injury Trust Fund [a] Under the Old Act [b] Under the 1992 Workers' Compensation Act
3-40 3-41 3-41 3-41 3-41 3-41 3-42 3-42 3-42 3-43 3-44 3-44 3-46 3-46 3-47
§ 3.3 Some Pitfalls and Tactics in Workers' Compensation
Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
[IJ       Beneficent Purpose Trial Court Findings Preferred Employees' Agreement With and Understanding of Settlement Unauthorized Physicians Surveillance Psychological Injuries Vocational Experts/Vocational Rehabilitation and Re-training/Job Placement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  Tort Cases  Maximum Medical Improvement  Impairment Rating Versus a Disability Rating [IIJ Other Problems
3-47 3-47 3-47 3-47 3-48 3-48 3-49 3-49 3-50 3-51 3-51 3-52 3-53 3-54 3-57
§ 3.14 How to Do a Worker's Compensation Settlement
§ 3.15 Procedure to Settle a Case
§ 3.16 Attorney Fees
. .. . ... .. . . .. . . .. . . . 3-65 [c] Concerns .. . ... ...... . ... ... .. . .... . . .. . .. . .. ...17 Torts in a Workers' Compensation Setting    3-59 Outrage.. . ... .. . . . .. 3-68 Forms IV . . ... " " " . . .. . .. . . . . .... ...Topic 3 Table of Contents (con't) Page § 3. . .. ... . .. . . 3-60 Fraud 3-63 Wrongful or Retaliatory Termination 3-64 [a] Burden of Proof 3-65 [b] Cases . .... .. ... . . . . . ... . . . . ..... .. .
In the late 1800's. Any practitioner who deals in workers' compensation cases should carefully read these Sections and the cases which interpret those statutes. with amendments. Since that date.Topic 3 Workers' Compensation § 3. The 1992 amendments provide for an ombudsman program (effective January 1. The Workers' Compensation Act is the employee's exclusive remedy against the employer.02 Counseling the Injured Worker When interviewing the injured worker. § 3. Contributory negligence is not an issue and the law requires that it be interpreted liberally in favor of the employee in its application.01 Introduction This is a general overview of the fundamentals of workers' compensation law in Alabama. employees could sue their employer for negligence. It is not intended to be all inclusive or "the last word" on detailed worker's compensation law. Alabama's first Employer Liability Act was passed. will continue to affect workers' compensation claims for the next several years. you should consider referring the worker to the Alabama Department of Industrial Relations. Prior to the enactment of the present statute and its amendments. Workers' Compensation Division in Montgomery. in some respects it is the same today as when originally passed. Prior to the adoption of the 1992 amendments to the workers' compensation laws by the legislature. If the worker does not have a serious injury and does not have permanent disability and only has a small grievance such as non-payment of medical expenses or a week or so of temporary total disability which has not been paid. Since both the old Act and the new Act. numerous changes have taken place with regard to the Act. 1993) to assist injured or disabled employees. persons claiming death benefits. Alabama 36130 (334-242-2868). employers and other persons in protecting their rights and obtaining information available under the 3-1 . both Acts are discussed herein. Modifications and social reform caused the creation of the Workers' Compensation Act of 1919. It acts as a substitute for negligence suits and as a judicially and legislatively formed contract. defenses of contributory negligence and the fellow servant rule frequently defeated employees' claims. The reader is directed to §§ 25-5-1 to 25-5-230 of the Code of Alabama (1975) for the full text of the law. first determine whether the worker is in need of an attorney. examiners in the Department oflndustrial Relations were eager to help workers with minor problems. However. However.
* In counseling the injured worker. Piedmont.09. Lowman v. there is a good basic work Hood. Determine if the employer has been guilty of fraudulent conduct or outrageous conduct. 3-2 . The worker may have been injured due to negligence of the manufacturer of equipment. you must find out the information necessary to draft a proper petition or complaint. Alabama Workers' Compensation (2d ed. First. Larson. Attorney fees in workers' compensation cases are limited and cannot exceed fifteen percent (15%) of the recovery for compensation (excluding medical and rehabilitation benefits). 1989). go to the Code of Alabama Title 25. 1992). see § 3. § 25-5-51. be sure to determine the date of his injury for statute of limitations purposes and whether the employee has given notice to the employer of his injury. Accordingly. See 3. Vol.. 547 So. 2d 90 (Ala. Ifhe has not given notice. determine whether the time limitations have expired. See § 3. you could gain a future client by helping the employee with her small claim. See Ala. you have a claim for retaliatory discharge. /990).07. A. Attorneys may also obtain information from the ombudsman program. Code § 25-5-11. 2d 1036 (Ala. it might be beneficial to everyone to refer the worker to the Department of Industrial Relations. Generally speaking in counseling with the employee. Hardy & Sadd. if the discharge was a result of the worker filing a claim for workers' compensation benefits. then you must determine whether the worker has any third party actions such as the obvious situation where the employee was injured in an automobile accident while working when a third party ran a red light. on a small claim. if an attorney is familiar with the employer and/or the workers' compensation carrier involved and a simple phone call might resolve the client's problem. 603 So.04. See § 3. Also. there are other sources to go for help. Rep. See also Ex parte Southern Energy Homes. Make certain that your injured employee did not falsify his employment application as not having an injury contributed to his present disability. if the pre-existing interfered with his ability to do his job before the present accident.worker's compensation law.16. If you cannot find the answer to counsel the injured employee in this chapter. 1986).11 [12J.09. Determine if the employee has been discharged and if so. Chapter 5.1 (1975. The Law of Workers ' Compensation (1988) is considered the authority when you cannot find an Alabama case covering your problem. You should also determine whether the worker has suffered any pre-existing injury and if so. The ombudsman program is explained in more detail in § 3. You must generally gather enough information to determine whether the case is compensable. On the other hand. After determining whether the injured worker has a compensable case and is in need of an attorney. Inc. See § 3. For a discussion of third party cases. If so.
husband.§ 3. Partial dependents are discussed in § 25-5-64. 234 Ala. an employer of a person whose employment at the time of the injury is casual and not in the usual course of the trade. Section 25-5-1 (7) defines an "accident" as "an unexpected or unforeseen event happening suddenly and violently. United Telephone and Telegraph v. father. 313. sister. Rep. rather than a characterization of the method of the act. or father-in-law who was wholly supported by the deceased worker at the time ofthe worker's death and for a reasonable period of time immediately prior thereto are considered his total dependents. An employer with less than five employees may elect to come under the act." It states that "injury" shall include physical injury caused either by carpal tunnel syndrome disorder or other cumulative trauma disorder. any municipality having a population of less than 2." Ex parte Harris. Code § 25-5-50 (1975. 2d 119 (1961) and Pecan Lumber Co. profession. or someone else is possibly liable under some other theory of the Jaw. brother." The Court in Ex parte Harris stated that it is the result of an act that is controlling. 531 So. App. An additional requirement of eligibility is that the employee suffer an accidental injury arising out of and in the course of his or her employment. ifeither disorder arises out of and in the course of the employment. 590 So. v. The court in Ex parte Maida Harris also stated that" if the job caused the injury.06 of this chapter. Ala.03 Who is Eligible for Benefits Employees who work for an employer who regularly employs five or more persons are eligible for benefits. " Harris. with or without human fault and producing at the time injury to the physical structure of the body or damage to an artificial member of the body by accident means. 2d 285 (Ala. 1988). Other family members such as the mother. or occupation of the employer. Civ. Ex parte Harris overrules a number of previous decisions including Gentry v. Remember. 3-3 . dependents are entitled to compensation. 1991). Section 25-5-50 also contains the exemptions as to employees/employers who are not covered by the act a domestic employee. but must notify the employees by posting a notice. and minor children under the age of eighteen years are presumed wholly dependent by § 25-5-61. notifying the employees in writing.25-5-51. Other places in the amendments refer to cumulative physical stress. state or Federal. 174 So. 2d (Ala. Culiver. t 986). §§ 25-5-1 (7). grandmother. Edwards. In death cases. The wife. if an employee is not covered by workers' compensation. held that "such a definition of "accident" is no longer valid. then the injury is an "accident" within the intent of the Act. 2d 530 (1937).000 according to the most recent federal decennial census. the employer. 568. 126 So. Vol. an employer of a farm laborer. Occupational diseases are covered in § 3. mother-in-law. 271 Ala. and by notifying the Department of Industrial Relations as required by § 25-5-50. Swan Chemicals Co.. § 25-5-62. business. grandfather. The 1992 amendments to the Alabama Code apparently follow Ex parte Harris as there are numerous places throughout the amendments that refer to the § 25-5-1 (9) definition of "injury. supra.
490 So. the ninety (90) day time limitation espoused in § 25-5-78 was expanded by the Alabama Court of Civil Appeals in Gattis v. For a good discussion of the five day notice and the ninety day notice. rehabilitation.2d 26(Ala. However. in cases involving claims for lost earning capacity under ~ 25-5-57 (a)(3)(i) other than those involving cumulative physical stress. see Alfa Life Ins. Generally.§ 3. 2d 1230 (Ala. App.Culverhouse 1999 Lexis 38 (Jan. 2d 991. Civ. rev'd. reh'g denied. should recognize the nature. deceit. 678 So.04 Important Time Limits  Notice to the Employer Section 25-5-78 requires that notice of an accident be given to the employer within five (5) days of the injury.App. written notice be given by the employee to the employer. App. then the claim or cause of action is barred. 490 So. 660 So. v. the court stated that in latent-injuries the statute of limitations does not begin to run until the injured worker. Code § 25-5-80 (Supp.668 So. 2d 1234 (Ala. Nabisco Biscuit Co. Ex Parte Slimp. rev'd. if no notice is given within ninety days without ajustifiable reason.). In accidental injuries. Vol. such as physical or mental incapacity. 1996). compensation shall be barred unless brought within two years of the termination of employment. fraud. 1995). Corp. v. in claims involving latent-injuries the statute of limitations has been expanded. It further requires that within ninety (90) days of the accidental injury. 2d. or other good reason.. and compensable character of his injury or disease. 1986). temporary or permanent. J993). 627 So. In American Cyanamid v. See Ala. 660 So. However. 590 So. 1991). seriousness.  Statute of Limitation The time allowed to file an action for workers' compensation benefits due to accidental injury is two years from the date of the accident or two years from the date of the last payment of compensation. 3-4 . See Ex parte Maida Harris. Compensation as used in this text does not include medical. failure to give notice within the five day period without a justifiable reason results in loss of medical and benefits until notice is given. App. or funeral benefits.App. 490 So. 2d 285 (Ala. International Paper v. 2d 1238 (Ala. 490 So. Another recent case on this issue is Dun & Bradstreet Corp. See Ala. Civ. 1992). The Gattis court stated that in claims dealing with cumulative-effect accidents. Murray. Our appellate courts have uniformly held that verbal notice is sufficient in lieu of the five day and the ninety day written notice. 1985). Civ. 2d 181 (Ala. 1984). Shepard.2d 437 (Ala.Civ. 1992). 15. as a reasonable person. The 1992 amendment to § 25-5-80 refers to cases involving personal injury due to cumulative physical stress being barred unless within two years after the date of the injury one of the parties shall file a verified complaint as provided by § 25-5-88. the ninety (90) day time limitation may not begin to run until after the date of last exposure. Also under the 1992 amendments. Code § 25-5-88 (1975. NTN-BowerCorp. 1999). 1995). Slimp. Rep. Civ. 1228 (Ala.. following termination of employment. "Notice" must be alleged in the complaint and proved upon trial of the case. 2d 994 (Ala. rev'd.
PO Box 10946. 1999). If the worker does not lose the member but has a partial loss of use of the member.05 Scheduled and Unscheduled Injuries  Scheduled Injuries Section 25-5-57 (3)(a) sets forth thirty-four scheduled injuries ranging from loss of any of the toes. the physician's report will usually only tell you the permanent impairment of the worker. § 3. OP-254. The typical non-scheduled injury is a back injury. the employer or its insurance carrier may deduct the number of weeks that it has paid the injured worker for temporary total disability.200. Most physicians do not take into consideration vocational factors such as the injured worker's education. other than the big toe which is scheduled for eleven weeks compensation. It is not required under a scheduled injury that the worker's earning capacity is decreased. 1999 Ala. 522 So. There is no time limit to enforce the medical provisions of the act. App. Dunlop Tire Corp. This permanent impairment is usually assessed by the treating physician and is taken by the physician from Guides to the Evaluation of Permanent Impairment. This book is available to attorneys from the American Medical Association. experience or lack of experience. From the 300 weeks. but is the difference between what the worker made at the time of the injury and what he is able to make in his partially disabled condition and is commonly referred to as "loss of earning capacity. to the loss of one ann and one leg which is scheduled for 400 weeks of compensation. claims for compensation are barred unless brought within two years after death and the death must take place within three years of the accident.  Non-scheduled Injuries Non-scheduled injuries are computed according to § 25-5-57(3)(g) which is entitled Compensation for Permanent Partial Disabilities Not Enumerated. Order Dept. This code Section states very simply that for the loss of one of the scheduled members that you simply take 66 2/3% of the average weekly wage and multiply it times the number of weeks for the scheduled member. he would be entitled to the percentage of disability to the member times the number of weeks available for the entire loss of the particular member. Morrow v.." Since the physician normally uses the AMA guide. if the worker had a 50% impairment to his leg. an employee who loses his little toe and whose average weekly wage is $300 would be entitled to $200 per week for eleven weeks for a total of $2. 2d 782 (Ala.In cases of death. Civ. For example. Chicago. Illinois 60610. This allows the injured worker 2/3 of the difference between the average weekly earnings at the time of the injury and the average weekly earnings he is able to earn in his partially disabled condition not to exceed 300 weeks. 1988)." Non-scheduled injuries are often referred to by the physician and attorneys as injuries to the "body as a whole. On unscheduled injuries the measure of damages is not the permanent impairment of the worker. For example. § 25-5-80. he would be entitled to 50% times 200 weeks (loss of leg) or 100 weeks. Lexis 140 (March 5. 3-5 . See Ex parte Tuscaloosa County.
The insurance company stopped temporary total disability when the physician certified that the worker had reached maximum medical improvement and ten weeks have passed before reaching the settlement for payment of compensation. The vocational expert gives the worker a sixty percent loss of earning capacity. His average weekly wage (AWW) including fringe benefits contracted for was $300 per week.00 Employee previously paid temporary total disability for 50 weeks at ($200 per week (2/3 x $300». of Industrial Relations.transferrable skills. age 58 with a third grade education that has worked in a lumber mill all of his adult working life having done manual labor.14 of this chapter. The injured worker had been paid fifty weeks of temporary total disability. Compute the benefits and settlement as follows: AWW (52 weeks preceding accident) Insurance premiums paid by employer Total average weekly wage (AWW). also in Hood Hardy & Saad) $300 AWW x 60% disability $180 3-6 . An agreement is reached for a lump sum settlement. The orthopedic surgeon gave the injured worker a ten percent permanent impairment rating to the body as a whole. Therefore. It is not uncommon that you have an injured worker advanced in years with little or no schooling and his experience consists of physical labor having a ten percent permanent impairment rating by the doctor due to a back injury and the vocational experts of both the plaintiff attorney and the insurance company coming up with a loss of earning capacity rating in excess of fifty percent. $248. it is extremely important that the attorney representing the injured worker engage the services of a vocational expert qualified to take into consideration all of the foregoing and come up with a loss of earning capacity percentage which reflects not only the permanent impairment but also the vocational loss as well.00 + 52. or the jobs available to the worker with his particular permanent impairment. See § 3. 300 -50 250 -10 240 weeks maximum previously paid remaining weeks accrued to be commuted at 6% (table available from Dept.00 $300. Accordingly. Assume that you have an injured worker. if your vocational expert comes up with a sixty percent disability and the physician a ten percent impairment then your client will receive six times the compensation using the vocational expert. age.
00 TOTAL 15. the trial court can determine disability to the body as a whole up to and including permanent total disability.14 TOTAL Where 150 weeks of temporary total paid: 10 weeks $ 1. App. In such a case.00 present value of 140 weeks = 129.610. 2d 644 (Ala.14 $26. Loggins v. Non-scheduled Injuries Ordinarily you are not concerned with loss of wages or earning capacity with a loss of a scheduled member or loss of use of a scheduled member. In the example set forth above of the 58 year old lumber mill worker. See Patrick v.200.18 $ 16.7098 x 120. However. the employee may reopen his or her case and introduce evidence showing the vocational disability he has suffered as a result of his on-the-job injury. his or her benefits are computed on the physical impairment alone. 395. Evidence of vocational disability shall not be considered. 1990). 103 So. 267 Ala. lnc. if the employee loses his employment within 300 weeks of the date of his injury. 2d 522 (Ala.00 $ 25.000. Civ.7512 x $120. Civ.410. Mallory Capacitor Co. Femco S. 1977).00 211. for reasons other than those defined in the code Section.. 2d 315 (1958) the Alabama Supreme Court has held that where you have the loss of use of a member coupled with injuries to other parts of the body or unusual circumstances. App.765. This without commutation would equal $20.565. 565 So.  Scheduled v. Grimes. assume that the physician gives him a 50% physical impairment of the right leg which would give him 100 weeks of compensation at $200 per week.18 The 1992 amendments to the workers' compensation act provide in § 25-5-57(3)(i) that if an injured worker on or after obtaining maximum medical improvement returns to work at a wage equal to or greater than the pre-injury wage and has a nonscheduled injury. beginning with Brunson Milling Co..x 2/3 $] 20 weekly compensation ]0 weeks accrued x $120 present value of 240 = (per table at 6% commutation) $1. If the vocational experts agree that this man.E. because of his lack of education and physical impairment. loss of earning capacity becomes very important. is precluded from doing physical labor and that because of his experience and education or lack of it he could do no other work then would be entitled to permanent total disability or $200 per week for the remainder of his lik If the vocational experts determine that the loss of use of the member would equate to a 3-7 . Although this has been the rule since the adoption of this statute.200. 344 So. v..
Article VI. 30 U. Occupational disease is defined by § 25-5-110 as a disease arising out of and in the course of employment including Occupational Pneumoconiosis and Occupational Exposures to Radiation which is due to hazards in excess of those ordinarily incident to employment in general and is peculiar to the occupation in which the employee is engaged. Occupational Pneumoconiosis and Occupational Exposure to Radiation are further defined in § 25-5-110(2)(3). § 3. apparently was abolished. Article VII. 1992). Article V. of the employer. process. if any. 801. Disease (including. If you have a coal miner case. Always compute both ways. there is attached a particular hazard of the exposure that distinguishes it from the usual run of occupations and is in excess of the hazards of the exposure attending employment in general. 3-8 . over a period oftime. Compensation for Occupational Diseases Generally. Amoco Chemical Co. temporary total disability paid is not deducted from the number of weeks paid. to the normal working conditions of the trade. 1997 W. App.L. Coal Miner Pneumoconiosis in Article 6. To be deemed "occupational" a disease must result from hazards recognized as peculiar to the normal working conditions of the employee's particular occupation. or employment.c. Under the 1992 amendment. occupation. then you would have to make your computations based a scheduled injury and make your computation based on the non-scheduled injury. if the worker had complications and a series of operations on his leg. Civ. 15291 (Ala. Ala. occupation. the statute of limitations to file an action was one year from the date of the last exposure. Code § 25-5-] 17 (Supp. beginning with § 25-5-170 and ending with § 25-5-180. Section 25-5-110(4) defines nature of employment with respect to subdivisions (2)(3) as meaning that. Before the amendment. Compensation for Occupational Pneumoconiosis Generally.S. it is two years. but without regard to negligence or fault. as to the industry in which the employee is engaged. process. Compensation for Coal Miner Pneumoconiosis. The 1992 amendments combine all of the occupational diseases except Coal Miner Pneumoconiosis into Article 4 beginning with § 25-5-] 10. with an unscheduled permanent partial disability you must deduct the number of weeks paid of temporary total from the 300 weeks maximum.permanent partial disability to the body as a whole. you may consider bringing your action under Article 4 of the Workers' Compensation Act or the Federal Coal Mine and Safety Act. or employment as a direct result of exposure. however. then the computations could result in a greater amount being paid as a scheduled injury than an unscheduled permanent partial. Remember that on a scheduled injury. In a case such as the foregoing example.. but not limited to loss hearing due to noise) is deemed an occupational disease only if caused by a hazard recognized as peculiar to a particular trade. that could have kept him out of work for 150 weeks. occupational diseases were contained in four distinct articles as follows: Article IV. Herchenhahn v.06 Occupational Diseases Prior to the adoption of the 1992 amendments to the Workers' Compensation Act. "Peculiar to the occupation" means that the condition of the employment must result in a hazard which distinguishes it from the general run of occupations. Compensation for Occupational Exposure to Radiation.
11. and death benefits. or other prosthetic devices which function as part of the body. The 1992 amendments extended the time for bringing an action from one to two years from the date of the injury. temporary partial disability. Inc. § 25-5-1 16(a). These benefits together with the benefits such as medical are more fully discussed in § 3. In § 3.1997). hearing aids. if any. Except for an occupational disease. 449 So. permanent partial disability. Section 25-5-1 (7) of the Alabama Code defines "accident" as an unexpected or unforeseen event. an employee must suffer a personal injury or death caused by an accident arising out of and in the course of his employment. in addition. any employer who furnished workers' compensation coverage during this period. An injury is redefined in § 25-5-1 (9) by the 1992 amendment as follows: Injury and Personal Injury shall mean only injury by accident arising out of and in the course of the employment and shall not include a disease in any form. If compensation is payable for Pneumoconiosis or Radiation. with or without human fault. and producing at the time injury to the physical structure of the body or damage to an artificial member of the body by accidental means. Civ. and breakage or damage to eyeglasses. Injury shall include physical injury caused either by carpal tunnel syndrome disorder or by other cumulative trauma disorder. dentures. we found out who is eligible for benefits. 2d ]254 (Ala. 1984). if any. Couch. § 25-5-117(b) and (c). when injury to them is 3-9 . The employer who is liable is not entitled to contribution from any other employer of the employee except one who furnished workers' compensation for the employee during the employment of the last exposure. is the employer in whose employment the employee was last exposed to the hazards of the disease. to the hazards of the disease and. Alatex. v. the only employer liable. is the employer in whose employment the employee was last exposed in each of at least twelve months. § 25-5-1 16(b). the only employer liable. within a period of five years prior to the date of the injury. happening suddenly and violently. except for an occupational disease or where it results naturally and unavoidably from the accident.03.07 Compensability and Benefits The forms of compensation for injuries fall into five separate categories: temporary total disability. For an occupational disease other than Pneumoconiosis or Radiation. App. If either disorder arises out of and in the course of the employment. § 3. The date of injury is defined as the date of last exposure to the hazard of the disease except for Pneumoconiosis and Radiation and where it means the date of the last exposure to the hazards of the disease in the employment of the employer in whose employment the employee was last exposed to the hazards of the disease in each of at least twel ve months within a period of five years prior to the date of the injury. § 25-5-117(a). permanent total disability.
Moesch v. App. The Alabama courts have construed this Section to mean "[Ilf a condition is aggravated by an accident occurring in the course of employment. Civ. v. Ex parte Louisville and Nashville Railroad Co. Obviously. the employer shall be liable only for the disability that would have resulted from the accident had the earlier injury or infirmity not existed. Hughes v. 514 So. It is well settled that an employer takes an employee as he is. "[R]egardless of the existence of a pre-existing condition or disease. and was apparently able to do his work. 1985) (employee injured while picking up a Christmas ham after working hours). 1987) (employee killed in parking lot). 2d 1102. 659 So. 2d 1264 (Ala." The language of this Section is made more ambiguous than may first appear.2d 306 (Ala. App. v. Decatur General Hosp.incidental to an on-the-job injury to the body. Brithing Cafeteria.. Jerrell. 2d. Civ. App. then for all practical purposes § 25-5-58 is for naught except in isolated cases. 1104 (Ala. 2d 637 (Ala. Robinson Foundry. v. Injury does not include a mental disorder or mental injury that has neither been produced nor been proximately caused by some physical injury to the body. This amendment radifies case law such as Ex parte Harris. Tullis. Stebbins EngineeringandManuj'acturingCompanyv. V. Drummond Co. Rogers. 1986). see also Blue Bell v. App. 1104 (Ala. 143 So. Barnett v. 790 (Ala. 505 So. 2d 1271 (Ala. Civ. Blue Bell. Wilson.. Section 25-5-58 states: "If the degree or duration of disability resulting from an accident is increased or prolonged because of a pre-existing injury or infirmity. 2d 556 (Ala. 500 So. it is obvious when the employee is injured in the line and scope of his employment. Civ. v. Civ. 498 So. App. Inc. In Rogers. the Court went on to state that. 1991) which held in effect that instead of showing a violent and unusual event. 2d 1102. Civ. 479 So. 479 So. Nichols. v. the condition is still compensable even though the accident may not have caused the same injury in a normal person. App. unforeseen and caused by the job. 462. See American Auto Ins. 2d. 3 . Sun Papers v. Dunlop Tire Corp. 289 (1922) (employee killed while trying to catch a train after work hours)." Supra. 500 So. Medley. Civ. 621 SO. 2d 813 ( 1932) (employee slipped on icy sidewalk in front of employer's premises on way to work). App. 1986) (employee on day off having a key made for his employer). 208 Ala. Goldkist v. Rogers.94 So. In most cases. Allen. 2d 564 (Ala. Civ. International Paper Co. It is a result of an act that is controlling rather than a characterization of method of the act. if the employee was able to perform his duties prior to the subject injury. 1995). 2d 935 (Ala. App. 216. 2d 285 (Ala. if an employee with a pre-existing condition is injured on the job. Civ. Civ. Baldwin City Electric.10 . App. 1986). Civ. no pre-existing condition is present for compensation purposes. 1987). 411 So. 590 So. 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. 1993). Section 25-5-58 (together with the compensation code in general) is to be liberally construed in favor of the employee and does not apply if any previous injury has not demonstrated itself as disabling or has not prevented the employee from performing his job in a normal manner. International Paper Co. 825 (Ala. 1985). Nix. App. 2d 848 (Ala. Civ. 1987). 2d 1230(Ala. Hinote. 547 So. v. 510 So. App. Georgia-Pacific Corp. it must be shown that the result was unexpected. Tinsely. 225 Ala. 519 So. 1986) (employee fell backward while eating lunch). 2d. There are many areas now considered to be within the line and scope of employment which were previously not. 1989).
1987). 544 So. at the employer's expense. Penney Co. 2d 529 (Ala. 1987) where it was held an employee was in the line or scope of his employment when he was killed in the parking lot. § 3. In 1. 2d 1063 (Ala. the employee is unable in the opinion of the treating physician to return to his or her former employment and if both a vocational rehabilitation specialist and a treating physician express their opinions in writing that in the judgment of each of them vocational rehabilitation is reasonably calculated to restore the employee to gainful employment and is in the best interest of the employee. 519 So. Section 25-5-77(d) of the Alabama Code states that the employee loses his compensation for any week in which he or she refuses the employer's request to submit to vocational rehabilitation (without the consent of the court) or a vocational rehabilitation assessment. App. so elects the employee must submit to vocational facility or institution recommended by a vocational medical and surgical treatment. Civ. Civ. If the rehabilitation takes place away from the employee's customary residence.. Oliver v. at a rehabilitation specialist. 2d 332 (Ala. C. The employee must be suitable for rehabilitation. The cost of the vocational rehabilitation specialist and the treating physician are the obligation of the employer. An injury suffered going to and from work is normally not compensable. Martin. Faulkner Wood. u. App. Pigg. Civ. 1987). An employee may also request vocational rehabilitation if. 716 (Ala. App. v. 2d. Pinkerton's. Smallwood. See also. 1988) (holding worker injured going to pick up a paycheck was within the course of his employment). 531 So. Pinkerton's.08 Vocation Rehabilitation Section 25-5-77 concerns expenses of rehabilitation. App. Belcher v.. 519 So. App. U. 2d 529 (Ala. 451 So. App. medicine. Belcher v. ci-. 2d 935 (Ala. eiv. In affirming an award of permanent total 3 .P.. 267 Ala. the expense of necessary board. 514 So. 475 (1958) (ironworker who got a "catch" in his back while changing clothes in preparation for work in a room furnished by employer). App. There are exceptions such as in Hughes v. The 1992 amendments codify these cases in § 25-5-1 (9). and medical examinations. App. 2d55 (Ala. 519 So. App. 1989) an employee seeking benefits for job stress causing emotional trauma was held not eligible because no job related "accident" had taken place causing physical injury. Armstrong v. Metalcraft. S. 1984). v. Lewis & Associates Construction cs. 2d. Civ. 496 So. Stidhham v. 516 So. vocational Section 25-5-77(c) provides that if the employer rehabilitation. Psychological injuries are normally not compensable unless coupled with some type of physical injury. Decatur General Hosp.S. 1986).. 2d 675 (Ala. 1984). eiv. lodging. Allen v. and travel is also been born by the employer. 2d 533 (Ala. 1981) (employee killed in auto accident on way to work with company business effects in auto). Dixie v. 634. 453 So.App. Magouirk v. Steel Corp. 1987). Civ. 1987). 2d. Inc. Diversified Products. 104 So. Emotional and mental stress arising from overwork and pressure by management has been held not to be compensable.II . ci-. 169 (Ala.
2d at 41 L "Gainful employment" means employment similar in remuneration to that earned prior to the injury.09 Claims Processing Claims are usually processed by the employer completing an employer's first report of injury form which has been furnished by the Department of Industrial Relations. The Court of Civil Appeal affirmed. 1985). 477 So. the worker has two routes to take.2nd at 412." Beaver Valley. The trial court ordered vocational rehabilitation consisting of the employer paying the expenses of the employee returning to college for undergraduate and masters degrees in Computer Science plus living expenses at UAB.." Beaver Valley. Although the statute states that the rehabilitation must be reasonably calculated to restore the employee to reasonable employment. the court must determine if the worker is a proper candidate for vocational rehabilitation. The worker after January 1. App.disability. and aptitude. if the worker is a proper candidate. 477 So. 1993. 1981) that when an employee is not suitable for vocational rehabilitation because of his age and education. persons claiming death benefits. the statute does not define gainful employment. 2d 408 (Ala. "First. S. § 3. Walton and Co. Section 37 of the 1992 amendments goes further and states that the Ombudsman shall be a merit system employee of the Department of Industrial Relations and demonstrate familiarity with the workers' compensation law. In Beaver Valley a twenty-seven year old employee was injured while doing manual labor. age. 2d 699 (Ala.12 . If the worker seeks an attorney. the Court of Civil Appeals stated in 1. The Ombudsman cannot be an advocate for any person. The employer appealed and the Alabama Supreme Court reversed. holds that gainful employment must be suitable for the employee.  Ombudsman Program [a] Ombudsman Section 25-5-1 (22) defines Ombudsman as an individual who assists injured or disabled employees. and other persons in protecting their rights and obtaining information available under the workers' compensation law. v. A representative of the insurance company or the employer (if the employer is self-insured) files the report with the Department of Industrial Relations. his failure to undergo rehabilitation does not stop his compensation. Ex parte Beaver Valley Corp. If the injured worker and the representative of the employer do not agree on benefits then. education. employers. The employee had a college degree in Business Administration and had taken other courses and was doing manual labor because he had been unable to find employment commensurate with his education. 477 So. The Supreme Court held that the trial court must make two determinations before awarding vocational rehabilitation. 396 So. Secondly. can call the Department ofIndustrial Relations (toll free) and go through the Ombudsman program or the injured worker could seek an attorney. but may provide appropriate information 3 . the court must determine the type of vocational rehabilitation which is most appropriate to restore the worker to gainful employment. Reeves. The gainful employment sought to be restored must be suitable and the court defined "suitable employment" as "that which is compatible with the employee's pre-injury occupation. Civ. the attorney can either proceed through the Ombudsman program or through the Circuit Court.
an employee. [b] Benefit Review Conference Section 37(e) allows the Ombudsman to conduct a benefit review conference between the employer and the employee when both parties agree thereto. [c] Attorney Fees Parties mayor may not be represented by attorneys in the Ombudsman program. and other pertinent information are contained in the file at the time of the conference. the employer. Section 38 of the 1992 amendments states that the purpose of the benefit review conference is to mediate and resolve disputed issues in an informal and nonadversarial manner. and the Ombudsman. 1992). but does not allow the Ombudsman to take testimony. Code § 25-5-1 (37)(Supp. Under § 37(e)(3) the Ombudsman is to insure that all documents and information regarding wages. or a representative of an insurance carrier. medical. Ala. At the end of sixty days. the party has sixty days after the agreement is signed or in the alternative. and (2) inform all parties of their rights and responsibilities.13 . or other good cause. This is to resolve a dispute between an employer and an employee by the Ombudsman. the date of court approval. to petition the Circuit Court to relieve the parties of the effect of the agreement because of a finding of fraud. The Ombudsman may approve attorney fees without the necessity of approval by the Circuit Court. Section 37(f) of the amendments states that the Ombudsman in conducting a benefit review conference should: (I) mediate disputes and assist with the claim.regarding the workers' compensation laws and rules and regulations promulgated thereunder and assist a claimant. any party could back out before signing the agreement. Also. Section 37(e)(6) states that the Ombudsman may not make a formal record and § 37(e)(7) allows the Ombudsman to issue a statement with regard to the award of attorney's fees in accordance with the amount as provided by § 25-5-90. the employee must be advised in writing of his right to be represented by counsel and his right to have the claim reviewed by a court of competent jurisdiction any time within sixty days after the date of the settlement if there is one. unless one of the parties desires to have the agreement approved by the Circuit Court to further insure the validity of the agreement. Section 37(e)(5) allows questions to be propounded by the Ombudsman. Since the proceedings are not mandatory. newly discovered evidence. up to fifteen percent of the recovery. or other person. Once signed. through the benefit review conference. that the Ombudsman is to reduce the agreement or settlement to writing to be signed by all three. Section 39 of the 1992 amendments provides that if. the agreement is binding upon both parties. an employer. This must be done within sixty days from the date that the agreement is signed. Section 37(e)(4) allows re-scheduling of the conference. if not reviewed by a court of competent jurisdiction. the settlement becomes final and irrevocable. Section 37(e)(2) provides that if the employee is not represented by an attorney. employer. 3 . all or part of the disputed matters are agreed upon by the employee.
• circumstances relating to the employment at the time of injury. etc. and • a verified complaint. • such other facts as may be necessary to enable the Court to determine what. if any. §§ 13-8. to the Department of Industrial Relations however.[d] Disputes Between Insurance Companies Where two or more insurance companies disagree as to who is liable for compensation for one or more compensable injuries. Murray. See also Hood. There is a sample complaint form in the Forms Section of this chapter. The Ombudsman makes his report on the resolution of disputes. Rep. 1986) that fringe benefits which were not gratuitously provided to the employee constituted "allowances of any character" and 3 .. 1986). Section 25-5-88 requires: • name and residence of the Plaintiff. • full description of the injury. 490 So. the report is not admissible as evidence. you should deduct periods where the employee is absent for seven consecutive days. Vol. Hardy & Saad. its nature and extent. Ala. The Supreme Court held in International Paper Co. In determining the average weekly wage. • the amount of the average weekly earnings for the fifty-two weeks next preceding the accident. Code § 25-5-57(b) (1975.14 . compensation. • name and residence of the Defendant. • the employee is entitled to under the Act. 2d 1238 (Ala. the Ombudsman may issue an Interlocutory Order directing each insurance carrier to pay a proportionate share of the benefits due pending a final decision on liability. Alabama Workers' Compensation. On final determination of liability. • the knowledge of the employer of the injury or notice to him thereof. 13-19 (§ 13-19 is a petition filed by the employer). the carrier determined not to be liable is entitled to reimbursement from the carrier that is determined to be liable.  Processing Your Claim Through the Circuit Court [a] Complaint Section 25-5-88 of the Code of Alabama (1975) sets out the requirements for either the employee or the employer to file a Complaint. v.
reh 's denied. Section 2S-5-81 (f) states that methods of discovery should be as set out in the Alabama Rules of Civil Procedure and as set forth in the act and subject to the limitations of the act. App. 1984). see Gattis v. Blue Bell. Civ. 1993) [b] Discovery Section 2S-5-81 of the Code of Alabama deals with the procedure of a workers' compensation action in Circuit Court including discovery. 490 So. In addition to notice being required in the Complaint. 414 So. life and disability insurance premiums. There is a very good discussion of the five day notice requirement and the ninety day notice requirement in International Paper v. (2) made to the employee in lieu of wages. App.. 490 So. 1986). the wording relied upon in International Paper Co. Civ. v. § 3. Civ. rev'd. 2d 1264 (Ala. 2d 1228 (Ala. 1982). It has long been the rule in Alabama that actual notice is the equivalent of statutory notice. under § 25-5-S7(b). 1985)." The 1992 amendments redefine wages in § 2S-5-1 (6) as consisting of earnings subject to federal income taxation and reportable on W-2 forms. App. and (3) specified as part of the wage contract. Fringe benefits are defined as only the employer's portion of health. § 25-S-78 requires notice as a condition to recovery. 2d 1230 (Ala. App. Murray.. 490 So. 2nd 437 (Ala. Hudson Metals. Murray. 1985). NTN-Bower Corp. Fringe benefits are not included in the wages if the employer continues to pay for the fringes while compensation is being paid. rev'd. App. 2d 1238 (Ala. For an expansion of the ninety day notice requirement. Sample forms of each of the foregoing are included in the Forms Section of this chapter. Inc. The deposition of the opposite party is not included in the two deposition limitation. "Therefore. Suit v. Civ. Another inexpensive way to prove your case is to use certified copies of medical records as provided by § 25-S-81 and Rule 4(h). the term 'earnings' is comprised of three elements: (1) allowances of any character. Civ. An inexpensive way for the Plaintiffs attorney to commence discovery is by interrogatories pursuant to Rule 33 of the Alabama Rules of Civil Procedure. 2d 1234 (Ala. 1986) remains in § 2S-S-57(b). 490 So. Interrogatories are limited to twenty five questions with a sub-part treated as a question.15 . 1984). a motion to produce pursuant to Rule 34.10 Penalties Recoverable Against the Employer/ Insurance Company  10% Penalty in Delay in Payment 3 .were included in the computation of the employee's average weekly wage. This Section limits each side to two depositions without leave of the court plus the right to depose any physician whose records are being offered by the opposite party. v. 627 So. 2d 1238 (Ala. 479 So. Wages also include contributions made by the employee to a tax qualified program or to a § 12S cafeteria program and fringe benefits as defined. Inc. However. Nichols. 490 So. and a request for admissions pursuant to Rule 36. 2d liS (Ala.
and a mere delay in payment of benefits does not create a separate tort. the first installment due the employee after the expiration of the twenty-one (21) days. 2d 90 (Ala. 2d 840 (Ala. it is not necessary for the employee to prove any element of the statute beyond the statutorily proscribed delay in payments in order to claim and recover the penalty. 2d 840 (Ala. 383 So. 1986) (emphasis added).16 . 2d 31 (Ala. Moman. 1987). the penalty is not levied if the denial is for good cause. App. An employer has "good cause" when there is a good faith dispute as to the employer's liability for the claim. 1989). 1980). If any installment of compensation payable is not paid without good cause within thirty (30) days after it becomes due. 521 So. Read News Agency. Lowman. and. There is also no provision in the Section for assessing the penalty on medical bills. 2d 522 (Ala. v. Compensation shall begin with the fourth day after disability. [b] 1992 Workers' Compensation Act The amendments to Alabama Code § 25-5-59 (1975). but in addition to. Rep. such installment. 2d at 94. Ala. Dial. Crown Textile Co. in the event the disability from the injury exists for a period as much of twenty-one (21) days. Piedmont Executive Shirt Manufacturing Co. The first of these is contained in 25-5-59. The Section does not apply in death cases. compensation for the first three days after the injury shall be added to and payable with. Turnipseed v. App." Frequently. nor in any case unless the employer has actual knowledge of the injury or is notified thereof within the period specified in § 25-5-78. Civ.[a] Old Act The old Act contains several statutory penalties recoverable against the employer and/or its insurance carrier. v. Lowman v. The operative words with regard to the penalty are "without good cause. App. 1987). 383 So. the penalty is requested in cases that are contested by the employer but most often. Inc. except as provided by § 25-5-77. there shall be added to such unpaid installment an amount equal to ten (10%) percent thereof. McCafferty..). 547 So. cert denied. 507 So. Civ. wherein it is stated: * In cases of temporary total or temporary partial disability. Civ. no compensation shall be allowed for the first three days after disability. Code § 25-5-59 (1975.  Double Penalty for Failure to Secure Payments of Compensation [a] Old Act Another penalty which exists in the statute is contained in § 25-5-8(e): Any employer required to secure the payment of compensation under this Section who fails to secure compensation shall be guilty of a misdemeanor 3 . 547 So. increased the penalty for overdue compensation to "an amount equal to 15%" of the unpaid installment. which shall be paid at the same time as. However. Vol.
If an employer fails or refuses to provide either compensation insurance or an approved self-insurance plan for its employees. This Section provides for penalties only if the minor is illegally employed. § 3. then under certain circumstances. any employer required to secure the payment of compensation under the Section who fails to secure such compensation shall be liable for two times the amount of compensation which would have otherwise been payable for injury or death to an employee.17 . Ifinjured. The director (ofIndustrial Relations) is authorized to apply to any court of competent jurisdiction for an injunction or restraint threatened or continued violation of any provisions relating to the requirements of insurance or self-insurance.00. While this is not in the nature of a "penalty. The most commonly cited and used penalty is the ten percent penalty for failure to pay benefits in a timely fashion.00 nor more than $1. minors are allowed to be employed as long as other labor laws are complied with. then the employer can be liable for double the compensation ordinarily allowed under the Act. In addition thereto.000." Of course. the employer or insurer may be fined up to $500. (explanation and emphasis supplied). Under the new law. upon conviction thereof. If the employer or insurer does not pay the additional ten percent. the minor may pursue a claim the same as an adult.  Torts Section 25-5-11 (b) also provides for actions against insurance carriers for willful conduct. [b] 1992 Worker's Compensation Act The amendments to the Act also include new penalties for failure to pay medical benefits. shall be subject to a fine of not less than $25. medical bills must be paid within twenty-five working days from the receipt of the claims in the form specified by the Act. Other penalties are seldom incurred in ordinary practice. This will be discussed later in the chapter in more detai1. or an amount equal to ten percent of the unpaid balance must be paid.11 Benefits The benefits which are allowable to an employee are primarily set out in the Sections of the 3 .  Double Penalty for Illegally Employed Minors Section 25-5-34 also calls for a double compensation penalty against employers who employ minors "in violation of or contrary to the law regulating the employment or any part thereof." it does allow a separate cause of action or tort relief rather than solely workers' compensation benefits.and. The meaning of this paragraph is obvious.
but. permanent total disability." The Act further states that the compensation shall be paid during disability but not beyond 300 weeks. To obtain tort damages. 2d 1162 (Ala. Traffanstedt 1998 Ala. again. death benefits. indicate that there is no longer a 300 week cap for these payments and that temporary total disability payments can continue for as long as the disability continues. permanent partial disability. then he shall receive the full amount of such average weekly earnings per week.t8 . Compensation for disability is set out in 25-5-57. temporary partial disability. This is referred to as maximum medical improvement. even for the life of the employee. compensation will be continued under the provisions of § 25-5-57(a)(4) which governs permanent total disability. vocational and medical payments. Damages under tort causes of action (discussed later in this chapter) allow the employee to recover general tort damages including compensatory and punitive damages.Act itself. The amendments to the Act. 1990). Payments are. Lexis 793 (Dec. The absence of permanent injury at maximum medical improvement terminates compensation benefits. 1998). Civ. 11. 3. Prior to the tort reform acts and the amendments to the Workers' Compensation Act in the mid-1980's. subject to the maximum and minimum authorized in § 25-5-68 and set on an annual basis by the Director of the Department of Industrial Relations. App." The employee's compensation during this period is 66-2/3% of the average weekly earnings he received at the time of the injury. These are benefits for temporary total disability. (These figures can be obtained by calling the Department of Industrial Relations as they are increased yearly). and recent interpretive case law. App. if at the time of the injury employee received average weekly earnings of less than the minimum stated in § 25-5-68.  Temporary Partial Disability Section 25-5-57(a)(2) sets out the compensation payable to employees for temporary partial disability which is "66-2/3% of the difference between the average weekly earnings of the workman at the time of the injury and the average weekly earnings he is able to earn as partially disabled condition. See Ex parte DCH Regional Medical Ctr. * The Act further states that at such time as any injury or disability becomes permanent. 57 t So. There are several types of benefits available under the Workers' Compensation Act. Workers' Compensation Division. the employee must establish a case with clear and convincing proof. not to exceed 300 weeks. GUBMA Contractors v. *  Temporary Total Disability Section 25-5-57(a)( t) provides for temporary total disability for that period of time when the employee cannot return to work and has not reached "maximum medical improvement. subject to a maximum and minimum weekly compensation as stated in 25-5-68. Civ. temporary total disability payments were paid during the period of disability.
App. the trial court used the $368 average weekly wage as set by the Department of Industrial Relations for making the calculations concerning the plaintiffs award.20) weeks or $6. to the body as a whole for loss of ability to earn). then he would be entitled to 170 weeks times $200 per week for a total of $34. 170weeks would commute to t 55.478 weeks. Under § 25-5-83. during the number of weeks as set out in the schedule. App. Stringfellow. This is for commutation to a lump sum payment." § 25-5-57(a)(3) sets out the number of weeks at which a scheduled member or part of the body has been valued. If paid on a "cash basis. In that case.800.000 on a paid out basis. Civ. commutation to a lump sum must be agreed upon by the parties and approved by the Court. the $220 maximum weekly benefit mandated by ~ 25-5-68(b) applies to a permanent partial disability resulting from an injury to a "scheduled member. The Court of Civil Appeals stated that ~ 25-5-68(b) "limits compensation payable for permanent partial disability to $220 per week" and that "clearly. 2d 1142 (Ala. denied. 2d 1136 (Ala. He would be entitled to $200 per week times 34 (I 70 weeks times ." the employer would be entitled to take a 6% discount from the number of weeks as set out in § 25-5-83.However.19 ." The court held that the trial court had miscalculated and should have used the $220 figure as the starting point for its calculations as to benefits.  Permanent Partial Disability [a] Generally Permanent Partial Disability is the most commonly encountered benefit in litigation." commonly called "camp rate. 1979). 2d 1] 33 (Ala." If John Doe had lost his entire left hand. v. 607 So. 373 So. 500 So. suppose John Doe had a 20% loss of the use of his left hand. See Jamestown Corp. (a)(3) 12 states that an employee shall be paid at the rate of 66-2/3% of his average weekly earnings for 170 weeks for the loss of a hand. EXAMPLE: John Doe makes $300 per week. Compensation under (a)(3) is based upon the extent of disability to the scheduled member (or in the case of non-scheduled members. Sixty-six and two-thirds of $300 per week equals $200 per week which would be his "workers' compensation rate. cert. the Legislature intended to subject all of § 25-5-57(a). 2d 249 (Ala. App." Accordingly. For "scheduled injuries. See TG&Yv. v.). Civ. to the limitation of § 25-5-68. 1992) which construes the provision concerning $220 maximum. Mabrey. see USX Corp. If the employee has something less than the total loss of his hand. For non-scheduled injuries there is no minimum. Using the same pay schedule. The Court of Civil Appeals ruled that the trial court was in error with regard to its calculations as to scheduled injuries under ~ 25-5-57(a)(3)a. That figure is for the total loss of the hand. leaving a lump sum benefit owed to John Doe for total loss of his hand of $3] . 373 So. t 986). For instance. If this 3 . Under this example.029. then the percentage loss of use of that hand would be applied to the number of compensable weeks. including the scheduled member injuries delineated in (a)(3)a. The compensation for scheduled injuries is 66-2/3% of the average weekly earnings subject to the maximum and minimum. Civ.56. by the plain language of § 25-5-57(a)(3)f. Ward.
t 134 (Ala. under § 25-5-68. 3 . Keep in mind with regard to these provisions that disability does not always equal impairment. Under scheduled injuries. Workers' compensation benefits are paid on disability. conversely. Only future benefits can be commuted. Civ. you should apply the $220 maximum only after all calculations have been performed to determine the weekly benefits.666. Frequently. Department of Industrial Relations. 2d 1133." are set out in § 25-5-57(a)(3).£. App. loss of earning capacity is not directly concerned in determining compensation. 1991).24. credit is given to the employer for each week of TTD payments paid. or even total. credit is given to the employer for the TTD paid. All other permanent partial injuries which are not scheduled or "not enumerated." In formulating calculations. the "maximum compensation payable for permanent partial disability shall be no more than the lesser of $220 per week or 100% of such average weekly wage. See TG&Yv. Hooper Sewer Service v. 565 So. Benefits under (a)(3)g are paid strictly on loss of the ability of the employee to earn and not on an impairment rating and it is error if the court fails to specifically find a loss of earning capacity in awarding benefits to the employee under non-scheduled injuries. a person with a small impairment rating could have a very substantial. Patrick v. see § 25-5-57(a)(3) and cases cited thereunder. App. 1980). Femco s.. This credit is taken from the 300 weeks figure used. If after all calculations have been performed.20 . At the time of trial or settlement. not impairment. which are subject to a 300 week maximum.amount is commuted. Compensation under this Section has a cap of 300 weeks during which the employee is paid at 66-2/3% of the difference between his average weekly earnings at the time of his injury and the average weekly earnings he is able to earn in his partially disabled condition. if the case is settled on a lump sum basis. but the minimum does not. which does not equal or equate to the actual disability of the patient or employee. a person with a large impairment rating could have no disability and. Remember that under non-scheduled or body as a whole claims (such as back claims). he would be entitled to $200 per week times 33. 587 So. This is a very necessary and useful tool for the workers' compensation practitioner. And. The table of present values used to commute the number of weeks at the discount rate can be obtained from the State of Alabama. Inc. subject to the maximum (no minimum). Civ. under non-scheduled or "body as a whole" claims. Additionally.. doctors will rate patients as having a particular impairment to the body. However. Under certain circumstances. 2d 340 (Ala. With regard to § 25-5-57(a)(3)g disabilities. the weekly benefit is still in excess of $220 per week then that maximum is used. Workers' Compensation Division. Civ. 2d 644 (Ala. the employer is not entitled to any credit for temporary total disability (TTD) payments made. For the authority for the above calculations. App. 500 So. accrued TTD benefits. the maximum camp rate applies. cannot be discounted but must be paid in full. Stringfellow.3312 weeks or $6. 1986). and under scheduled injuries. disability. Denney. the employer is entitled to the 6% discount.
the injury should probably remain a scheduled injury and not a "body as a whole" injury. it has been recently held that "physical impairment" is an issue to be resolved by the trial judge and that a trial judge is not limited to the employee's medical impairment assigned by a physician. at a wage equal to or greater than his wage at the time of the accident." However. 1. App. cert. Lankford v. S. Keep your client informed and obtain authorization from your client with full benefit of the facts in this regard. 1979). 244.21 . v. v.L.. [b] Under the 1992 Workers' Compensation Act Section 25-5-57(a)(2)i of the new Act provides that if an employee returns to work. B. 1981). 531 So. Hayes Int'l Corp. Johnson. civ. App. Also.. 2d 1052 (Ala. 47 Ala. if the employee has lost his or her employment under circumstances other than any of the following within a period of time not to exceed 300 weeks from the date of injury. App. this is presumptive of no loss of earning capacity. a classical pianist. therefore. Morever. Reeves. 731874 (Ala. v.. Republic Steel Corp. 2d 918 (Ala. 1996 W. Inc. International Paper. 2d 699 (Ala. Try the calculations both ways and weigh other facts before deciding which method to pursue. Winn Dixie of Montgomery. 563 So. ci-. this is rebuttable by the employee. Martin. App. Wilde v. be mindful that the employee's post-injury earnings are not conclusive of his ability to earn. would be minimal. eiv. Nobles. Therefore. 2d 988 (Ala. 1996). For example. There are several factors to consider in these situations. who lost the same hand may claim a 100% disability. post-accident. 370 So. Frequently scheduled injuries can affect the body as a whole. Goodrich v. App. However. however. 253 So. Civ. 571 So. a lawyer with a loss of one hand has a substantial impairment and a scheduled injury. BAMSI. 454 So.Frequently. but claim a non-scheduled benefit. Inc. App. U nder the provisions of this portion of the Act. Kimbrell. 2d 37 (1971). However. It does not always hold true that it is better to transform a scheduled injury to a non-scheduled injury. Be careful in handling cases in this regard in determining which interpretation of the injury is most beneficial to your client. the court "shall not consider any evidence of vocational disability. 587 So. 370 So. If the employee's post-injury wages are higher than pre-injury. See Hooper.). 1988). Even if he makes more money post-injury than before the injury the employee may have a loss of capacity to earn. 1984). 2d 294 (Ala. an employee may petition the court 3 . App. The employee is not limited to a scheduled injury where the injury extends to other parts of the body to produce a greater or longer incapacity.2d 1174 (Ala. 2d 297 (Ala. Civ. 396 So. a non-scheduled injury. Civ. denied. App. Fullerv. Keep these factors in mind in making your determinations. F. 1990). it is frequently advantageous to convert a non-scheduled injury to a scheduled injury. 1990). Walton v. 2d at 341. Taco Bell Corp. The loss of his hand affects his entire body and therefore he would most probably be entitled to a non-scheduled claim. most lawyers could continue to practice law with only one hand and their disability. Civ. an employee will suffer a scheduled injury. the amendment further states: "notwithstanding the foregoing. the worker's permanent partial disability shall equal his physical impairment. depending on his loss of earning capacity and alternative employment opportunities. Also. therefore making what appears to be a simple scheduled injury.
. for sabotage. without good cause connected with such work. If the employee loses his or her job but not as a result of any of the above. within two years from the time of loss of job (up to 300 week period). and the employee receives an exact impairment rating. • the loss of employment is for actual or threatened misconduct committed in connection with his or her work after previous warning to the employee." The exceptions include: • the loss of employment is due to a labor dispute still establishment in which he or she is or was last employed. physician-imposed restrictions as well as the following: all available reasonable accommodations that would enable the employee his or her condition following the accident or on said occupational disease perform jobs that he or she in the condition otherwise would be unable perform. • the loss of employment is for a dishonest or criminal act committed in connection with his or her work. if the case is tried. bond or surety necessary for the performance of a job is lost to him or her because of cause. The court may then look into higher sums of money to the employee. permit. The court also must consider. Therefore. under this provision. or • the loss of employment is because of license. or settled.within two years thereof for reconsideration of his or her permanent partial disability rating.22 . and shall treat an employee able to perform some accommodation though he or she could perform without the accommodation . that the employee's loss of employment was due to one of the conditions stated above. the employee may petition the court to reevaluate the vocational disability or loss of earning capacity. he or she has over seven years to as to loss of earning capacity. from a defense standpoint. In active progress in the • the loss of employment is voluntary. in to to as Therefore. certificate. award or settlement equal to his or her petition the court for a re-determination vocational disability and award much permanent and total disability benefits. or in act endangering the safety of others.. by clear and convincing evidence.. it is highly recommended that a sum in addition to that which equals the exact impairment rating be paid to the employee through any settlement (or after a judgment) to account for potential loss of earning capacity and to prevent the employee from reopening the matter within seven plus years after the employer and carrier considered the matter 3 . upon re-evaluation. including up to The burden of proof is on the employer to prove.
However. Even though the employer may petition the court to alter or amend an award of permanent and total disability to the employee which is being paid on a periodic fashion. Lump sum payments of permanent and total disability cannot be made under the code Section without the consent of the employer. The employer must prove that the employee no longer suffers a permanent and total disability. Frequently. The benefits can then be adjusted accordingly. has no disability or a partial disability. read Ex parte Alabama Guaranty Association. at any time. This sum should be discounted by 6% under the Commutation Table which can be obtained from the Department oflndustrial Relations. If the employee was making less than the minimum at the time of his injury then he would receive his full earnings. [MS. if necessary. 1995). permanent and total benefits are paid in a lump sum... and shall treat an employee able to perform some accommodation though he or she could perform without the accommodation . Workers' Compensation Division. The Alabama Supreme Court has stated that this 3 . the employer may. one should obtain the latest Mortality Table showing the life expectancy of the employee considering his age at the time of the injury. If permanent and total benefits are paid on a weekly or periodic basis. Compensation under this Section is paid during such period of permanent and total disability up to lifetime benefits. In determining this. amend or revise the compensation. the employee does not have the right under the Act to petition the court to have an award of permanent partial disability enhanced into an award for permanent and total disability. consideration should be taken for this provision and all settlement negotiations handled with an eye to keeping options to keep a file open. 1931285. The number of years obtained from those tables should then be multiplied by 52 to obtain the total number of weeks. the employee and the court.1995] So. From an employee's standpoint.. the weekly life expectancy would not be commuted to present value. for the complete protection of the employee. June 2. if the permanent.closed. Benefits under this disability are paid at the rate of 66-2/3% of the average weekly earnings received at the time of the injury "subject to a maximum and minimum weekly compensation" as set out in § 25-5-68. For a good case that discusses both petitioning the Court to set aside a prior determination of permanent and total disability pursuant to § 25-5-57(a)(4)b and the use of surveillance videotapes.2nd (Ala.23 . all available reasonable accommodations that would enable the employee his or her condition following the accident or on said occupational disease perform jobs that he or she in the condition otherwise would be unable perform. but instead. in to to as  Permanent Total Disability Secti on 25-5 -57(a)(4) deal s with permanen t and total di sabili ty. total benefits are payable periodically for life. ask the court to alter. to ascertain the "present value" of the employee's benefits.
Adkins v.. "then the earnings for the remainder of such 52 weeks shall be divided by the number of weeks remaining after the time so lost has been deducted. v. Walton & Co. but employers wiIl be able to find jobs for them. Inc. Civ. 396 So. physical and vocational rehabilitation must be reasonable and reasonably expected to benefit the employee before it can be used to prevent a permanent and total award. 2d 1079 (Ala. 388 So. 472 So. The job for which the employee can be retrained for must be "gainful. Also. whether or not proximately related to the on-the-job injury. Elbert Greeson Hosiery Mills. App. Napier 724 So. Inc. App. if the injured employee has less than 52 weeks on the job prior to the date of the injury. Gosa. App.seeming imbalance in rights of the parties is part of the quid pro quo of the Workers' Compensation Act and is constitutional. App." 3 . App. v. Civ. S. Employees frequently will argue that the new job is not "gainful" and therefore does not prevent the employee from recei ving permanent and total benefits. or death following injury. the case law seems to hold that such medical.24 . in order to prevent a permanent and total award. 2d 1148 (Ala. or obtain vocational testimony which will indicate that the employee can be employed at another job. the employee must be incapacitated totally and permanently from working "at and being re-trained for gainful employment. There are three bases for determining average weekly wage. 1996).." Very frequently. Gold Kist. persons will claim to be permanently and totally disabled. v. §* 25-5-57(a)(4)e through 25-5-57(a)(5). v.  Second Injuries For situations involving second injuries resulting in disability. Civ. 1980). J. v. 2d 1049 (Ala. Civ. Section 25-5-57(a)(4)(d) indicates that an employee who refuses to undergo physical or vocational rehabilitation shall "not be deemed permanently and totally disabled. 565 So. 1998). Bratton. Ivey. under permanent and total claims." However. 2d 699 (Ala." This basis should be used if the employee was employed less than one year prior to his accident "provided that results just and fair to both parties will be thereby obtained. Civ. There is case law which indicates that the employee cannot be compelled to take any job. Inc. 1990). 2d 22 (Ala. Smith v. 2d 1006 (Ala. see Walmart Stores Inc." See Mayfield Trucking Co.  Calculations of Average Weekly Wage [a] Under the Old Act The formula for determining the average weekly wage is set out in § 25-5-57(b). 571 So. • The first basis is "the earnings of the injured employee in the employment in which he was working at the time of injury during the period of 52 weeks immediately preceding the date of injury divided by 52. 1990). no matter the type.. 1981). 2d 633 (Ala. 678 So. Den-Tal-Eze Manufacturing Co. O'Neal Steel. 1985) (dealing with medical treatment)." • Under the second basis. Reeves.
The rationale is that a defendant "takes the plaintiff like he finds him. or other plan providing for sick pay by the amount of compensation paid." Section 25-5-57(d) also indicates that other allowances made to the employee (in lieu of wages) are used to determine his average weekly wage.• Under the third basis. administrative agency. 2d 1238 (Ala. Code § 25-5-58 (1975. 2d 599 (Ala. but benefits due) for: Benefits paid pursuant to a disability plan." See Speegle v. This is particularly true if the employee was able to work gainfully at the time of the injury with the pre-existing condition. by a person in the same grade. 1986). and Fringe Benefits as defined herein. 1985). 469 So. the parties will look to the "average weekly amount which during the 52 weeks prior to the injury was being earned by a person in the same grade. App. Most often. the number ofitems includable in the average weekly wage computation have been limited by the new Act. and if there is no such person so employed. Vol. 2d 777 (Ala. (I) 3 . Civ. Murray. 545 So. this Section very rarely comes into play. employed in the same class of employment and in the same district. by the same employer. the employer is entitled to a set off in calculating the amount of workers' compensation due (not the calculation of average weekly wage. voluntary contributions to a § 125 Cafeteria Program. and only if. Rep. Further. As a practical matter. 490 So. See International Paper v. [b] Under the 1992 Workers' Compensation Act The amendments to the Act at § 25-5-1 (6) states that "wages or weekly wages" is: to mean 'average weekly earnings. if because of the shortness of the time of employment or otherwise. Four-E Corp. the employer is only liable for the disability that would have resulted had the pre-existing condition not existed. If the employee has a pre-existing condition which increases or prolongs the injury.25 . retirement plan. 'Fringe benefits' shall mean only the employer's portion of health. In other words. if an employee has a pre-existing condition and his injury aggravates the condition. 1986). the employer continues the benefits during the period of time for which compensation is paid. Therefore.' based on those earnings subject to federal income taxation and reportable on the Federal W -2 Tax Form which shall include voluntary contributions made by the employee to a tax-qualified retirement program. Dobbs. (2) The employee shall forfeit to the employer all compensation paid for any period to which it attributed to any award of back pay by court.. employed at the same work. the courts will award the entire disability regardless of what pre-existed the workers' compensation injury. if and only if the employer provided the benefits or pay for the plan or plans providing the benefits deducted. benefits other than pay can be used to increase the average weekly wage. life. Average weekly earnings shall not include fringe benefits if. 1989) Lewis v. computation of the average weekly wage becomes difficult. and disability insurance premiums. See Ala.
bore to the total income of the dependent during the same time. App. and for. ~ 25-5-57(c)( I)-(3). 1986).26 . [b] Under the 1992 Workers' Compensation Act Under 25-5-60 of the new Act. 66-2/3% of the average weekly earnings of the deceased are paid to the dependents. Section 25-5-61 describes persons who are presumed wholly dependent upon the decedent at the time of the death.500 to the deceased worker's estate. a reasonable time immediately prior to the injury. provided. cert.arbitration. Ward.  Death Benefits [a] Under the Old Act Death benefits are set out in 25-5-60. denied. the employer must pay a one time lump sum payment of $7. Social Security payments shall not be included herein. 373 So. The death benefit is paid subject to the minimums and maximums during dependency." Ala. If more than one dependent is left. If the deceased employee leaves only one dependent. The purpose of this Section. the employer shall be at a set off in weeks against compensation owed under this Article.). that dependent is entitled to 50% of the average weekly earnings of the deceased. 373 So. if the deceased leaves no dependents. courts in Alabama frequently approve lump sum benefits in death cases. 1979). Partial dependents under the Act are entitled to receive "only that proportion of the benefits provided for total dependents which the average amount of the earnings regularly contributed by the deceased employee to such partial dependent. Rep. 2d 1136 (Ala. Vol. or settlement. minor children under the age of eighteen and children over the age of eighteen who are physically or mentally incapacitated from earning. however. Under 25-5-60(g) of the new Act. but not exceeding 500 weeks. Although there is case law suggesting that death benefits to a widow cannot be paid in a lump sum. compensation is payable in death cases (whether or not death results proximately from the accident within three years). v. These persons are the wife or husband (absent special circumstances). (3) If the employer continues a salary of an injured employee during the benefit period or pay similar compensation during the benefit period. * *  Funeral Expenses 3 . at. then within sixty days of his death. 2d 1142 (Ala. Civ.Cafeteria Plan for a Disability or Sick Pay Program shall not be considered as being provided by the employer. Code 25-5-60(1)(d) (1975. * * Periodic compensation for death benefits to any dependent ceases upon death or marriage of such dependent and the other dependents receive that benefit. voluntary contributions to a 125 . see Jamestown Corp.
May 19. Workers' Compensation Division. Exceptions to this general rule arc also discussed in these cases. 3 . That portion of the Act also states that if the employee refuses to accept rehabilitation at the employer's request (and expense). $1. v. and reported in newspapers. 541 So. this situation arises because the employee is dissatisfied with the medical physician provided by the employer and/or carrier. 7\'SOfI. App. Bear Brothers. One problem area which arises frequently in workers' compensation cases involves medical payments and procedures. If the expenses are unauthorized. Walley. This is reportedly some twenty percent higher than any other state in the South.000. App. 1988). 2d 1385 (Ala. Civ. 355 So. Simmons. unreasonable. Cole. indicates that over sixty percent of every dollar spent in Alabama by workers' compensation carriers or employers on workers' compensation claims is spent on medical costs. 2d 560 (Ala. 539 So. 1981). See Champion Int'l Corp. 1989). v. 2d 305 (Ala. unnecessary. Civ. 2d 1133 (Ala.000. if an injury is "work-related" most insurance plans will not pay for medical treatment received by the insured/injured employee. Furthermore. particularly Bear Brothers and Amoco and Combustion Engineering v. this situation seldom arises because most employees can not afford to seek medical treatment that will not be covered by his or her insurance. § 25-5-77 describes what expenses are payable and how they are payable. 497 So. claimants will seek medical treatment from a medical physician who is not authorized by the employer or carrier as required by the statute. Perhaps this explains why most employers and carriers try to control and manipulate the medical care in an effort to reduce medical cost. App. necessary. In some instances. Civ. This [b] Under the New Act Section 25-5-67 of the New Act (effective exceeding $3. or Industrial Relations. Most often. App. 2d 184 (Ala. A recent study done by the State of Alabama Department. which is discussed later. related and authorized medical expenses incurred by the employee. not all medical expenses must be borne by the employer. 2d 1062 (Ala. the employer does not have to pay for them. However. 1987).[a] Under the Old Act Section 25-5-67 provides for burial expenses for the employee not exceeding is paid in addition to medical and hospital expenses provided for by the Act. However. he will lose compensation for each week of such refusal. not  MedicalN ocational Benefits [a] Under the Old Act Medical and vocational expenses are provided for in the Act. are payable. these benefits are not cut off if refusal is reasonable. Grantham. 1978). 1986): United States v. Flame Refractories v. Therefore. A claimant may lose his benefits entirely if he refuses to undergo reasonable medical care which is reasonably anticipated to benefit the employee. Civ. and not related. 514 So. Civ. See Amoco v. Transco Energy Co. employers and carriers alike are very concerned about medical costs. However. App.27 . 398 So. Secti on 25-5-77 requires the employer to pay the actual cost of reasonable. 1992) states that burial expenses.
The Court of Civil Appeals stated: If it is established by legal evidence that an employee has suffered a physical injury or trauma in the line and scope of his employment and he develops a neurosis as a result of such injury or trauma which causes or contributes to an occupational or physical disability. and (4) where other circumstances exist which would justi fy the selection of alternative care by the employee.Remember. Numbers I. which dealt with a contested $14. (2) where the employer had consented to the selection by the employee. 1986). 3 and 4 can be "catch all" Sections. Civ. These exceptions were addressed in United States v. With reference to the medical award. 355 So. v. such disability is compensable.437 (Ala. the employee may recover Workers' compensation benefits from his employer even though the employee has contracted for medical care from the source other than the one provided by the employer.000 bill for psychological and psychiatric services provided to the employee. necessary psychiatric treatment.Civ. 2d at 186. 2d 1133 (Ala. Golden. Civ. fn. 1987). 486 So. . 1978). One case on this issue is Transco Energy Co. An employee may avail himself for medical services if the employer has expressly conveyed to the employee the impression that the employee is authorized to go to a physician of the employee's own choosing or if the employer with full knowledge has failed to object thereto over a substantial period of time. 2d at 1138. Tyson. it is the employer/carrier who controls which doctor will treat an injured employee. Among such instances are: ( I) Necessary medical care. The court acknowledged that the employer is not liable for medical treatment obtained by the plai ntiff/employee without justification or notice to the employer and pI aced the burden of proof with regard to notice and authorization on the employee attempting to obtain payment for those expenses." There are recognized exceptions employees can avail themselves of in an attempt to compel the employer/carrier to pay for unauthorized medical bills. an order that the case was in compliance 3 . 497 So. 2. 2d J 84 (Ala.. Bear Brothers.App. . 497 So. In Transco the employer appealed the trial court award of the psychiatric bill stating that the bill was not authorized by the employer or the carrier. the case was reversed because "there was no evidence that the psychological care which was provided by the doctor to the employee was ever expressly authorized by the employer or its Workers' compensation carrier. Bear Brothers.28 rule governing with the Code . In appropriate instances. App. Under the "any evidence" appeals of workers' compensation cases. v. (3) where notice of and request for alternate care would be futile. 2d 435. 355 So. an employer must pay the actual cost of reasonable. See also Kimberly-Clark Corp. App.
Frequently. If the charges are unreasonable. the employee is liable. be authorized by the courts. App.2d 1339 (Ala. 514 So. without authorization from the employer. Amoco Fabrics Co. 2d 1385 (Ala.. Under the Act. 2d 955 (Ala. In Grantham. the carrier and/or employers will only pay a portion of the medical bills incurred by the employee and expect the medical service provider to accept the lessened payment in full compensation of their medical services. medical providers pursue the employee for these deficiencies which seems to leave the employer and carrier open to claims of outrage. for all treatment. related and authorized. Marion Homes of Bear Creek v. Commonly. fraud and other claims including those for attorney's fees for the failure to pay." The concern arises over medical expenses which are deemed unreasonable or excessive by employers and/or carriers. Grantham attempted to assert a Bear Brothers exception in order to have his unauthorized medical bills paid for by his employer. If the expenses are reasonable. at 1341. The medical community stirs against such notions and is taking steps in an attempt to ensure that it is paid.Civ. the employer may not dictate to the employee that he may not have the medical treatment recommended by his authorized treating physician. * The Act provides that the employer and carrier for the employer have the responsihility for paying these expenses and if the carrier refuses to pay a certain portion. Although this was not the issue in dispute in this case. The and that the treatment is reasonable and necessary. If the treatments arc unnecessary. scenario where an authorized physician refers to another physician for medical treatment. 441 So. Brown reaffirmed the practice where authorized physicians refer patients. unrel ated or unauthorized.requirements would be sufficient to withstand appeal. Another matter of great interest in Alabama involves medical expenses. without authorization from the employer. Delaney. in full. the employer could be held liable for the deficiency." Id. to other physicians for medical treatment." The Act further says in 25-5-77 that" [t 1he total Iiability of the employer shall be limited to such charges as prevailed for similar treatment in the community where the injured employee resides. or the consent of." See Beatrice Foods Co. Another case on this issue is Grantham v. Civ." He further argued that there were "other circumstances" which should allow him to obtain payment of the medical bills by the employer. He argued that the employer "neglected or refused to provide the necessary medical care" and that the "notice of and request for alternative care would have been futile. medical expenses are paid by the employer at the "actual cost of reasonably necessary medical and surgical treatment. the employer. 638 So. v. necessary. 1983) supports the patients. 3 . 19R7). the employee sought medical advice without notice to. "as a general rule. case holds that if the initial physician is authorized referrals to otherwise unauthorized physicians will A nother case that defines the right an employer has to control or manipulate medical treatment is Citv of Auburn v. The Supreme Court held that Grantham had not fit within any of the exceptions and affirmed the trial court's ruling in favor of the employer.29 . Brown. 1993).App. The members of the Bar appear to be split on whether the employee has any liability for these expenses. it is probable that only the employer and workers' compensation carrier for the employer are Iiable. then it is doubtful if any court would award the benefits since the Act requires all medical expenses to be "reasonable. the Court nonetheless held that.
Civ. the employer is only responsible to pay fees "not to exceed the prevailing rate or maximum schedule of fees as established" in the Act. The Act provides that the prevailing rate shall be negotiated between the Department ofIndustrial Relations and individual hospitals and updated on a twelve month basis. App. Under the new Act. • may include in lump sum settlements payments. It further provides that the maximum medical fees shall be 7. see § 25-5-1(15)(16)-(21). the medical provider's only recourse under the new Act is against the employer or carrier for authorized mcdicals. v. See Ala. Civ. * * *  Refusal of Suitable Employment 3 . App. 25-5-77(g) specifically provides that the injured employee "shall not be liable for payment of any authorized and compensable medical expenses associated with the workers' compensation claim. S." Most employers and/or carriers will reimburse employees for travel expenses at a rate of $. 1983). the employer now has to pay mileage costs "to and from medical and rehabilitation providers at the same rate as provided by law for official state travel.30 . Of course. Further. 2d 699 (Ala. Additionally. subrogable in third-party actions. There is also an Ombudsman Program which allows for non-binding mediation and review of medical services in case of dispute. 431 So. Under 25-5-77(t). Reeves. or the case is found to be not compensable. See 3. 396 So. 2d 1299 (Ala.09[ 11 of this chapter for a discussion of the Ombudsman Program. under the Workers' Compensation [b] Under the 1992 Workers' Compensation Act Under various provisions of the new Act. Vol. the employee would have the liability for the bills. Rep. Section 25-5-77 has been amended greatly under the new Act. medical payments are not "compensation" Act. medical and vocational employer on behalf of the employee are: • under some circumstances. Walton & Co.Gray. benefits expended by the * 25-5-11 (a)." Therefore.25 per mile. 1981). the new Act allows the employer to contest the amount of medical or hospital bills without exposing the employee to liability for the unpaid portion.5% above Blue Cross PMD subject to an additional increase of2% pending the approval of the Governor. Code ~ 25-5-1 (I) ( 1975. if the medical bills are unauthorized. The Ombudsman provisions are very sketchy as to how they will be implemented. and * along with indemnity payments and rehabilitation • those payable have also been changed and subjected to a schedule under the new Act. 25-5-56. 1. 1986). By definition.
Code 25-5-57(3)(e). The court further stated that the Workers' Compensation Act anticipates that the benefits of an employee are used for support of himself and his dependents and acknowledged that a death claim under the Workers' Compensation Act is brought on behalf of dependent children and the spouse to replace the support they would have received from the employee had he lived. There shall be no right to waive this exemption. Ex parte McCall. workers' compensation benefits are termed "income" and should be factored into a child support award. 567 So. 1992). 2d 1166 (Ala. intent and purpose of inflicting injury. *  Workers' Compensation Benefits Not Exempt From Child Support The Alabama Supreme Court has recently stated that workers' compensation benefits are not exempt from income withholding orders or garnishment for child support arrearages. App. or their dependents. v. Under Alabama's Rules of Judicial Administration. Glover." • "the willful intentional removal from a machine of a safety guard or safety device 3 . and he is guilty of 'willful' conduct. 1989). with knowledge of the danger or peril to another consciously pursues a course of conduct with a design. But see. 596 So. Thermal Components Inc.31 . The Supreme Court has ruled that child support payments under a court order were not a "debt" within the meaning of the Act. Section 25-5-86(b) of the Workers' Compensation Act states: Claims for compensation or awards.)  Third-Party Cases Injured employees. 2d 4 (Ala. 2d 148 (Ala.) (Workers' Compensation benefits cannot be seized or garnished to pay criminal fines. Golden 716 So. \998). who refuses suitable employment offered or obtained for him by the employer is not entitled to compensation during the period of time of such refusal. 2d 1039 (Ala. Civ. 669 So. 1995. and where a person. It was also noted that Social Security benefits and Veteran's Administration benefits could be used to satisfy child support payments and that achild support payment was not dischargeable in bankruptcy. saying: "By basic morality and the laws of the State. a parent is bound to contribute to the support of his minor children.Under the benefits portion of the Act. an injured employee. which also allows for co-employee lawsuits provided the co-employee is guilty of "willful" conduct." Pace v. may sue third-parties who caused their injuries or deaths. or judgments or agreements to paid compensation owned by an injured employee or his dependents shall not be assignablc and shall be exempt from seizure or sale or garnishment for the payment of any debt or liability. "Willful conduct" is defined in 25-5-11 (c)(l) as: * * • "a purpose or intent or design to injure another. Ex parte Beshears. unless the court feels that the refusal is justifiable. This authority is set out in 25-5-1 I. See Ala.
Bunklev Air Conditioning. a growing numberof cases are finding that the co-employees should have known that injury was substantially certain to follow from the actions. 697997 (Ala. If the third party damages are not sufficient to cover the entire workers' compensation liability. the attorney for the employee or his dependents may charge an attorney's fee to the employer or workers' compensation carrier for protecting the subrogation interest in the third-party suit. Generally. However. 3 . 1996). or will be based upon proof that co-employee had "an intent to inflict injury". However. Under § 25-5-11. if not impossible. . However. however. or aj udgment is awarded before the employer pays its benefits. L. Bunklev v.provided by the manufacturer of the machine with knowledge that injury and death would likely or probably result from such removal. Code ~ 25-5-11 (e). in a circumstance where the thi I'd party either pays monies through settlement to the inj ured employee or his fami ly. the employer will have already paid some. Very few cases have been. Co-employee lawsuits were once prevalent. In such subrogation circumstances. of its liability before third party damages are obtained. but all but disappeared for several years following tort reform in Alabama. the employer and workers' compensation carrier are entitled to a credit up to the amount of their liability under the Workers' Compensation Act for any damages recovered against a third party by the injured employee. or II • intoxication proximately of another employee and that employee's causes injury or death to the employee. An employer is generally not entitled to subrogate against uninsured motorist benefits obtained by Plaintiff. If so. See Ala. less a reasonable attorney's fee to the employee's attorney. removal of such guard or device shall not be willful conduct unless removal did. in the last year. these co-employee lawsuits have become common place again. or (2) that a reasonable man in the position of the defendant would have known that a particular result was substantially certain to follow from his actions. It is difficult. under the "reasonable man" position. App. to ever prove willful conduct in any situation not involving intoxication. the employer and carrier are entitled to reimbursement of their monies paid (excluding medical benefits which are not subrogable). provided. in fact. Civ. 1996 W. The two ways that a plaintiff can impose liability on a co-employee in these situations are by showing either (I) an intent to intlict injury. . increase the danger of use of the machine and was not done for the purpose of repai r of the machine or was not part of an improvement or modi fication of the machi ne which rendered the safety device unnecessary or ineffective. the employer and its carrier are entitled to a credit for unpaid workers' compensation benefits (not mcdicals) up to the limit of their liability. Section 25-5-11 also allows for subrogation or reimbursement of benefits paid by the employer or workers' compensation carrier obtained by the employee or his dependents in a civil action against a third-party. or conduct wrongfully and • willful intentional violation of a specific written safety rule after written notice to the violating employee of the violation. the employer and carrier's liability only resumes when that credit has been met. if not all.32 .
589 So. Gill. 1991). at a place where he may reasonably be.12 Defenses There are numerous defenses to workers' compensation claims set out in the statutes and under common law. 1985). 360. his personal representative. place and circumstances of the accident. lnc.For cases involving co-employees and interpretation of the term willfulness by the Alabama Supreme Court. Custom Caterers. whether that accident "arose out of" and "in the course of" the employment. 1991). 279 Ala. Under the case law of Alabama.. Civ. Cosby. Some of these matters discussed in thi s Section may be more in the nature of proof of the prima facie case of the employee. 585 So. 2d 383 (1966). 2d 173 (Ala.  "Accident"/"Arose Out of"/"In the Course of' [a] Under the Old Act Section 25-5-3 I states: When personal injury or death is caused to an employee by an accident arising out and in the course of his employment. Kennedy v. Reeves." They arc: (1) [t]he customary nature of the activities. shall receive compensation by way of damages therefore from the employer. 1991). (2) the employer's "whether an encouragement or 3 . for the exclusive benefit of the surviving spouse and next-of-kin. § 3. 2d 831 (Ala. he.) Some initial factors to consider in a workers' compensation claim are whether there was an "accident" and.33 . 578 So. as defined in ~ 25-5-51. if so. but are important to keep in mind from the defense standpoint. "In the course refers to the time. see Harris v. period of plaintiffs fulfilling the duties of his employment" 475 So. See Anderson v. which injury the actual or lawful imputed negligence of the employees are natural and proximate cause. in the employment. and Moore v. provided. "An injury arises out of" employment when the injury occurs. 185 So. Kennedy sets out several criteria considered by the appellate courts to determine activity is within the course of employment. 2d 1242 (Ala. that the injury or death was not caused by the willful misconduct of the employee or was not due to misconduct on his part. Merritt v. and while he is reasonably of his employment or engaged in doing something incidental to it. both of these tests must be complied with in order for the claim to be compensable. Note that the terms arc not synonymous. Id. 2d 872 (Ala. Cochran. (Emphasis added. App. or in the case of death.
and in the course of. (3) the activity to which the employer managed or directed the [activity]. Civ. v. Inc. Still claimants have to deal with questions of this nature. Under 25-5-31. v. 2d 375 (1955)." Whether an accident arose out of. The second part of the two-part test to determine the compensability of an accident deals with the "arising out of" test. "Arising out of" has been defined as that condition where the employment is the source and cause of the accident.subsidation of the activities. and in the course of. Alabama Textile Products Corp. See ~ 25-5-1 (8)(9) which defines "accident. What is required in each case is an evaluation of the significance of each factor found to be present in relation to the enterprise as a whole. In Hughes. employment. it must arise out of a risk which is incidental to the employment or is connected with a duty a workman has to perform under his contract of service or be a hazard that was peculiar to the employment. Alabama Pipe Co. 2d 790 (Ala. 253 Ala. 1981). or in the course of. 227. Kennedy.46 So. the employee was employed by Decatur General Hospital. (4) the presence of substantial pressure or actual compulsion upon the employee to attend and participate.. Further. the law was that employees going to and from work were not "employees" within the meaning of the Alabama Workers' Compensation statute. 2d 204 (1955). United States Steel Corp. 2d 935 (1987). The provisions of the workers' compensation laws are liberally construed in favor of the employee and against the employer. is the foregoing enumeration meant to be exclusive of other factors which might appear in a given case. [Njor. Massev v. However. 514 So. * Usually it is apparent whether an action arose out or.. Wo. 179. 475 So. 263 Ala. the courts term this as trying to effect the "beneficent purposes" of the Act.34 .. A reason for this liberal construction has been given as an effort to "effectuate the purposes behind the Act and to eliminate procedural technical ities. employment depends on the facts and circumstances of each particular case. 2d 404 (1950). In order to satisfy this requisite condition.. 610. 264 Ala. Gerald.tj(ml. much as the decision as to the closeness of the connection between the employment and the [activity] ultimately rest. She was struck and killed by an automobile while walking to her car in a parking lot after completing her shift at work. the injury must be naturally and proximately related to an accident in the employment. The Alabama Supreme Court swung the pendulum in the other direction in Hughes v. 2d at 874-75. an employee retains the burden of proof that his injury was proximately caused by an accident which arose out of. The trial court granted summary judgment for the employer indicating that the deceased was not 3 . App. 82 So. Frequently." "arising out of" and "in the course of his employment. 411 So. the rational mind must be able to trace the result and injury to a proximate cause set in motion by the employment and not otherwise. (5) the fact that the employer expects or receives a benefit from the employee's participation in the activity . For many years. Decatur General Hospital. 86 So. v. indeed." Sun Papers. rest breaks and going to and from employment. employment. Grantham. Upon such an evaluation. Frequent problem periods arc lunch breaks.
space and opportunity before and after while he is at or near his place of employment. 143 So. However. 1987).2d 109 (Ala. App.. Kennedy. 410 So. 1991) added an additional factor that "any evidence" must reviewed by the trial court with a "reasonable view. Moon. The Court indicated that the public street where the decedent had been killed was a "necessary route between the two premises" and therefore. but on other grounds. and in the course of. 2d at 937 (citing Barnett v. The practitioner is reminded that the standard of review on workers' compensation cases is strongly weighted in favor of the trial court. was suddenly and violently. App. 225 Ala. 3 . 225 Ala. her employment. Another factor to be considered from a defensive standpoint is whether the employee injured in an "accident. 1972). Vol. 503 So. Inc. the court recognized that there was an exception to this general rule set out in Barnett: "[Elmployment is not limited by the actual time when the workman reaches the scene of the labor and begins it nor when he ceased. at 813. her employment the court stated the general rule that "an employee injured while on the way home or to work or to a place not required by duty is not covered by the Workers' Compensation Act." Hughes. or in the course of. Inc. The requirements for an "accident" are liberally construed in favor of the employee as are all Sections of the Act. Robinson Foundry Co. therefore.2d 91 (Ala. v. Code ~ 25-5-1 (8) (1975. See Ala. Britling Cafeteria Companv. at 463. The trial court will be upheld upon review.2d 863 (Ala. There are obvious! y problems with provi ng or disproving exposure cases since there is not one episode which can be traced as a basis of the injury.35 . Injuries have been found to have been "caused by an accident" when injuries occurred as a cumu I ati ve result of months of exposure. Rep. With regard to the issue of whether this accident arose out of. 813 (1932). appellate courts do not rule upon the sufficiency or weight of the evidence and the trial judge's opinions and findings are given great latitude. The Supreme Court affirmed. Civ." Barnett. 1986).acting within the line and scope of her employment at the time of her accident. Hughes left no dependents." Since the appellate review is by certiorari. Ex parte Eastwood Foods.. "if there is any legal evidence to support the trial court's findings. Inc. the accident arose out of. 575 So. The Hughes Court put great emphasis on "where" the action occurred as opposed to the employee's actual activity at the time of the accident. 462. 514 So. They decided this was a compensable claim. • causing at the time physical injury to the body or damage to an artificial member of the body. 143 So. but includes a reasonable time. v." Tidwell Industries. Civ." Traditionally "caused by accident" has been defined as: • an unexpected • occurring or unforeseen event. the Workers' Compensation Act did not allow a claim. However.
2d 285 (1991)." Id. App. 368 So.The Alabama Supreme Court has overruled the pre-existing law concerning the definition of an "accident. 2d I (Ala. in the performance of the duties of the job. then the "by accident" portion of the Code was satisfied.. Alabama. it inserted a "but for" test in workers' compensation cases whereby if the plaintiffs job "served as the reason for her injury. that there was no requirement The Court indicated that the former definition of "accident. a gradual or continuous situation such as the continuing use of one's back gradually creating a disability was not "an accident. dangers or risk on the job precipitated or contributed to the injury. Under these cases. in the alternative. [J]fthe job caused the injury." The Court found that "an employee is not required. at 5. She claimed an injury to her hand. In Newman Brothers the court stated that causation had two parts. indicating Central Bell Telephone. Edwards. but the result thereof. 354 So." The trial court held that an accident under ~ 25-5-1 (8) does not include an injury "resulting from a gradual disintegration or deterioration. 1977). 2d at 5. Hornsby. an occupational disease. and that the event must take place suddenly and violently in order for there to be a compensable complaint) was invalid. at 4. it therefore follows that the injury was indeed an accident." Kane. The trial court made no decision concerning occupational disease and that issue was not before the appellate court. The Court of Civil Appeals affirmed the trial court. 1988).36 . Civ. Civ. This Court has now redefined "accident" as a characterization not of the method of the injury. that an accident related to the event causing the injury. 2d 1142 (Ala. an employee is exposed to a danger or risk materially in excess of that to which people not so employed are exposed and an injury occurs. Thus. there were cases existing which stated that if the job caused the injury." That case is Ex parte Harris." The trial court also found there was improper notice of her injury. 1979)." However. The medical test of causation must then be determined. 2d 620 (Ala. Id." Formerly. It further said that if. i. 354 So.. not the result. (988) (dealing with a back injury) and Elmore County v. 2d 3 (Ala. 590 So. There is a new case which restates (or perhaps rewrites) the defi nition of" accident. McDowell. cert. gradual deterioration of a condition was not generally an "accident" within the meaning of the Workers' Compensation Act. 531 So. The former law was set out in such cases as Buchanan Lumber v. The Alabama Supreme Court found.e. such injury may be legally determined to have arisen from the job and be termed an accident. App. that the conditions. 368 So. 533 So. then the injury is an accident within the intent of the Act. under the Act. to prove the existence of some violent and unusual event that resulted in his or her injury . Civ. She filed suit alleging a workers' compensation injury or.). 2d 1138 (Ala. that it had earlier so held in Kane v. South that the injury be a result of a "sudden and violent" accident and that "the requirement that there must be shown a violent and unusual event which causes the injury [has been 1 replaced by the principle that there was an accident if the result was unexpected and unforeseen and it was caused by the job. Harris was an employee at Avondale Mills in Sylacauga." i. The trial court found that Harris had not met her burden of proof in that she had not sustained a compensable "accident. Newman Brothers v. 3 . legal and medical.e. App.. denied.
effective August I. under the More importantly. 1992. the new enactments contained in 25-5-Sllcd to a new standard for review for workers' compensation claims on appeal. except for an occupational disease or where it results naturally and unavoidable from the accident. then it may be compensable under the Workers' Compensation Act regardless of the effectual cause. or by other cumulative trauma disorder if either disorder arises out of. Ex parte Harris is an important case as it indicates that if the employee's injury is a result of activity on the job. and in the course of.The Court lists several cases which it claims support the proposition that this definition has been the law in Alabama. the new Act provides that. but less than beyond a reasonable doubt. [b] Under the 1992 Workers' Compensation Act Section 25-5-1 (9) of the amendments to the new Act stales that: "[ijnjury and personal injury shall mean only injury by accident arising out of. were produced in the mind of the trier of fact. Therefore. For the purposes of this amendatory Act. 'clear and convincing' shall mean evidence that. (With regard to injuries caused by cumulative trauma. the employee's employment. Injuries shall include physical injury caused either by carpal tunnel syndrome disorder. the employment. and shall not include a disease in any form. Those situations all seem to invol ve occupational disease rather than an on-the-job accident. a review of each of those cases indicates that they are continuous exposure cases such as inhalation of paint fumes. . the employment. First. Injury does not include a mental disorder or mental injury that has neither been produced nor proximately caused by some physical injury to the body. when weighted against evidence in opposition. stress-type injuries.) * intent as evidenced Section 25-5-S1 (c) of the amendments to the Act. However. is much higher than under the old Act.. and in the course of.37 . daily contact with caustic solutions and allergies. see the legislative by the Code Commissioner's notes under the amendments to 25-5-1. and in the course of. slates: The decision of the court shall be based upon a preponderance of the evidence as contained in the record of the hearing. a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. "in reviewing the * 3 . except in cases involving injuries which have resulted from gradual deterioration or cumulative physical stress disorders which shall be deemed compensable only upon a finding of clear and convincing proof that those injuries arose out of. Proof by clear and convincing evidence requires a level proof greater than a preponderance of the evidence or the substantial weight of the evidence. the burden of proof on the plaintiff in cumulative new Act.
38 ." * * "Employee" is defined in 25-5-1 (6) as "every person not excluded by § 25-5-50." In Bamsi.. We will view the facts in the light most favorable to the findings of the trial court. including aliens and also including minors who are legally permitted to work under the laws of this state . 652 So. The Court also noted that in reviewing the standard of proof under (e)( I) review by the Court of Civil Appeals should be without a presumption of correctness. Bamsi. "[I]n reviewing pure findings of fact... "Employer" is further defined in 25-5-1 (4) as not including an employer who "regularly employs a number less than three in any business. " If the employer is insured for workers' compensation. the Court was quick to point out that they would not re-weigh however. in the service of another of any contract of hire.Civ.. express or implied. Code (1975). some farm laborers and other employments specified in the Act and the cases cited thereunder. the evidence. an employer must "regularly employ" five (5) employees in anyone business. The former Act only required three employees to come within the terms of the Act... Second. the Court defined a new standard for review applicable to review of workers' compensation claims. the new Act provides in § 25-5-81 (e)(2) that. Code 25-5-50 (Supp. oral or written." This is a clear break from the "any legal evidence" standard." § 25-5-81 (e)( I) Ala. * "Employer" is defined in 25-5-1 (4) as "every person not excluded by § 25-5-50 who employs another to perform a service for hire and pays wages directly to such person . some Circuit Court judges and attorneys would question this statement. a new standard of review was created as follows: ".  Excluded Employers and Employments Under the 1992 Workers' Compensation Act Under the amendments to the Act. " Section 25-5-50 deals with certain employments which are not covered by the Act.. as last amended. review of the Court of Civil Appeals shall of correctness.. such as domestic workers. Ala. In Whitsett v. § 25-5-81 (e)( I).be without a presumption standard of proof set forth herein and other legal issues. then the term "employer" includes his insurer.2d 287 (Ala. The trial court's judgment will not be reversed unless it is clear that the trial court's findings are manifestly contrary to the evidence as contained in the record as a whole or unless it is clear that fair minded persons in the exercise of impartial judgment would adopt a contrary conclusion. 1992). 1994). In the end. before an employer comes within the terms of the Act. the finding of the Circuit Court shall not be reversed if that finding is supported by su bstantial evidence. The Court noted the "substantial evidence" requirement found in § 25-5-81 (e)(2). *  Independent Contractors 3 . except for the purpose of § 25-5-11 lawsuits.App.
). Faxon Sand & Gravel Co. C. Under the workers' compensation laws of Alabama. 1981). Canter.000 25-5-67). The element of control is the essential distinguishing factor. G. 2d 909 (1973). Halstead Contractor.406 So. if the deceased employee leaves no dependents. HI~fJ. to determine whether a master-servant situation exists to make one an employee for purposes of the Act. 361 So. The courts look to the reservation of the right of control. Section 25-5-31 states that the cause of action for workers' compensation for "personal injury or death" lies with the employee. etc. an employer/employee relationship must exist in order for the exclusivity provisions to apply.. 1978).spouse. 1981). then there is no cause of action for workers' compensation benefits. Of course. T. v. However. App.282 So.  Dependency/No Dependents [a] Under the Old Act Another defense which occasionally arises in workers' compensation is the death of the employee who leaves no dependents -. his personal representative for the exclusive benefit of the surviving spouse and next-of-kin. See C. The exclusivity remedy only applies in situations where the employee is suing his employer for injury in the course of his employment. 1977). HURlies v. not the actual exercise of such control. The practitioner will find that questions of employee versus independent on the facts of each particular case. 2d 60 (Ala. C. and Associates.39 . ''The test to be used in determining the relationship is whether the employer had a reserved right of control over the means and agencies by which the work was done or the result produced. not necessarily its exercise. Sections 25-5-52 and 25-5-53 state that the rights and remedies of employees under this Act are their exclusive remedy (with the exception set out earlier in this chapter regarding tort claims. 2d 412 (Ala. Jr. Lowery. the practitioner will find many cases where there is a very thin line between who is an employee and who is an independent contractor. (*  Statute of Limitations 3 . Civ. Decatur General. [b] Under the 1992 Workers' Compensation Act The new Act allows a one time payment of $7. exclusivity of the Workers' Compensation Act is a defense which should he carefully looked into by the practitioner.500 for a compensable death of an employee if the employee leaves no dependents (~25-5-60) and the funeral expenses have been increased from $1. 514 So. 396 So." Dennis v. Inc. F. "or in a case of death. children or otherwise. particularly when filing any tort claims or co-employee lawsuits. Kilgore v. App. dependents or next-of-kin.000 to $3. Holliday v." This requires that there be a surviving spouse. App. 2d 935 (Ala. 2d 13 (Ala. Civ. contractor will turn  Exclusivity As discussed earlier in this chapter.Independent contractors are not employees. 86. 51 Ala.
(979). Civ. In cases involving claims for lost earning capacity under ~ 25-5-57(a)(3)i. when the death results proximately from the accident within three years. as defined in 25-5-1. The statute of limitations is set out in 25-5-80 as two years from the date of the accident. In case of death. he may claim medical benefits.40 . Civ.. The payment of medical claims by the employer is not a payment of compensation and does not toll the statute. 2d 737 (Ala. 390 So. Milstead Pulp Wood Co.. 2d 782 (Ala. Head v. however. Zigler. 366 So. Co. all claims for compensation shall be forever barred unless within two years after death. the parties shall have agreed upon the compensation under this article or unless less than two years after the death of one of the parties shall file a verified complaint as provided in ~ 25-5-88. the statute of limitations may be tolled when the employer performs certain acts which would lead the employee to bel ieve that compensability under the statute is admitted or where fraud has been perpetrated on the employee or.. or unless within two years after the * 3 .[a] Under the Old Act Another defense is the statute of limitations. where wages have becn paid in lieu of compensation and those payments recognized the employee's claim. following termination of employment as outlined therein. a claim for compensation. denied.). 2d 628 (Ala. the parties shall agree upon the compensation payable under this article. * [b] Under the 1992 Workers' Compensation Act Section 25-5-80 of the new Act states with regard to cumulative physical stress that: [c]ompensation in this article shall be forever barred unless within two years after the date of the injury one of the parties shall file a verified complaint as provided in ~ 25-5-88. R. Under certain circumstances. cert. App." It is important to remember that only the payment of compensation (weekly benefits or other benefits in lieu of wages) as defined in ~ 25-5-1 (I) will toll the statute of limitations. or if injury or disability resulting therefrom. 1977). For further discussion on this. 274 Ala. Triangle Constr. 1988). said Iimitations shall not take effect until the expiration of two years from the time of making the last payment. ISO So. or where "payments of compensations have been made in any case. compensation under this article and article 4 shall be forever barred unless brought within two years of the termination. 1980). other than those involving cumulative physical stress. 2d 389 (1963). 519. 353 So. Section 25-5-117[aJ states: In case of the contraction of an occupational disease as defined in this article. unless within two years after the date of the injury as hereinafter defined. 390 So. and even if an employee has let the statute of limitations run on his benefits claim. 2d 635 (Ala. shall be forever barred. 2d 800 (Ala. App. see Dorsey v. See Ex parte Tuscaloosa Countv 522 So. in other circumstances. Blackmon v. United States Pipe & Foundry Co. There is no statute of limitations on medical benefits. L. Cunningham v.
and the employee. 559 So. App. 1989). 1995]. App.. See Gattis v. [997 W. This appears to be very concrete and clear. may not know when to interpretation. notice is open 627 So.1995). give. 2d 183 (Ala. 490 So.App. oral notification of an injury is sufficient. notice by the employee is not required if the employer has actual notice of the injury. However. fraud or deceit. but no compensation shall be payable unless such written notice is given within ninety (90) days after the occurrence of the accident or. Whi Ie the notice requirement is mandatory. 1984). the ability to have gainful employment or the 3 .Civ. 2d.97 So. 21 0 Ala. 218675 (Ala.App. the employee. Inc. problems arise. Further. 134. _. particularly under the If there is no accident such as a violent sudden the "accident" arose and therefore. Murrav. very broaden and liberal definition of "accident. 559 So. 1990). However. Notice provisions of the statute appear to be very strict. himself.. [MS.. NTN-Bower Corp. orequal good reason. March 31.2d 437 (Ala. denied. under the liberal construction and interpretation of the case law. if he fails to give such notice. such as the lack of loss of ability to earn in a non-scheduled injury case. other than minority. shall not be entitled to physicians or medical fees nor any compensation which may have accrued under the terms of this Article and Article II of this chapter. 2d_. 2d 1230 (Ala. where death results within ninety (90) days after the death. _ So. for a recent case where the statute of limitations was expanded to accommodate claims involving latent-injuries.  Other Defenses Other important defenses lie in the facts of the cases themselves. notice may take many forms including oral notice. General Motors Corp. * shall have filed a verified claim as See American Cyanamid v. Civ. 2d 185 (Ala. 140 (1923). (Ala. _So. Civ. to the employer written notice of the accident.date of the injury." event. within 5 days after the occurrence of an accident. For an important case on notice See International Paper Co. unless it can be shown that the party required to give such notice have been prevented by doing so by reasonable of physical or mental incapacity. Union Camp. 1997) Section 25-5-78 states: Every injured employee or his representative shall.Civ.L. cert. 1993).41 . Steele v. Shepard. AV9300068I . v. Bonner v.  Notice Another important matter which is a defense and a part of the prima facie case of the plaintiff is notice of an injury. Ex parte Harper. or cause to be given. one of the parties provided in 25-5-88.
acquisition of new employment in permanent and total cases where the employee is being paid on a periodic basis. Other defenses involve a pre-existing condition as the proximate cause of the injury rather than the claimed accident. However, keep in mind that aggravation of a pre-existing condition in many cases would result in the court's ruling that the employee is entitled to benefits regardless of the pre-existing condition. Additionally, the defense should always plead along with any affirmative defenses available, credit for any payments made to, or on behalf of, the employee in order to take credit for them at trial.
 Willful Misconduct
The employer has no liability to the employee for willful misconduct of the employee which causes his own injury. Also, there is no compensation for injuries "caused by the act of the third person or fellow employee intended to injure the employee because of reasons personal to him and not directly against him as an employee or because of his employment." With regard to misconduct, the Act states in several places that willful misconduct of the employee results in no compensation. Section 25-5-31 states that the employee "shall receive compensation by way of damages therefore from the employer; provided, that the injury or death was not caused by the willful misconduct of the employee or was not due to the misconduct on his part, as defined in ~ 25-5-51." Section 25-5-51 states that compensation shall be paid: [w] ithout regard to any question of negligence; except, that no compensation shall be allowed for an injury or death caused by the willful misconduct of the employee or by the employee's intention to bring about the injury or death of himself or of another, or due to his own intoxication or his willful failure or willful refusal to use safety appliances provided by the employer. If the employer defends on the ground that the injury arose in any, or all, of the above stated ways, the burden of proof shall be on the employer to establish such defense.
If intoxication is a defense, then the intoxication must proximately cause the accident. Ross Ellard Con st. Co., 686 So. 2d 1190 (Ala. eiv. App. 1996). Langford v. Red Wing Carriers. Inc., 344 So. 2d 515 (Ala. Civ. App.), cert. denied, 344 So. 2d 522 (Ala. 1977).
In cases where the employer claims willful misconduct, the burden of proof lies upon the employer. Ala. Code ~~ 25-5-51,25-5-36 (1975, Rep. Vol. 1986). In those circumstances where the employer claims willful misconduct as a proximate cause of the injury, the employer may demand ajury to determine the issues involved in this defense. lfthe employer does not demand ajury upon appearing and filing the answer, the employee, may demand ajury trial by filing ajury demand within five days after the appearance of the employer. When a jury is demanded: the court must submit the issues of fact as to willful misconduct set up by the employer to the jury, for a special finding on the fact subject to usual powers 3 - 42
of the court over verdicts rendered contrary to the evidence or law, but the judge must determine all other questions involved in the controversy without
* 25-5-81 (a)(2).
It is not a defense in a workers' compensation case that the employee was negligent or that the injury was caused by the negligence of a fellow employee or that the employee had assumed the risk in his employment. See 25-5-32.
Under the 1992 Workers' Compensation Act
There arc several employee misconduct defenses set out in the amendments to the Act. The first is found at § 25-5-8(g)(2) which states:
In the event the court determines and makes a finding that a worker has filed a fraudulent claim for workers' compensation benefits under thi s amendatory Act, § 25-5-11.1 shall not apply to the employer. In addition to the denial of workers' compensation benefits under this amendatory Act, the employer, upon such a finding that a worker has filed a fraudulent claim for workers' compensation benefits under this amendatory Act, may terminate the worker. Additionally, drug testing and penalties for fraud in the application placed in the Act as defenses to claims for compensation. Section 25-5-5 I states as follows: "no compensation shall be allowed for an injury or death caused by the willful misconduct of the employee, by the employee's intention to bring about the injury or death of himself or herself or of another, his or her willful failure or willful refusal to use safety appliances provided by the employer or by an accident due to the injured employee heing intoxicated from the use of alcohol or being impaired by illegal drugs." A positive drug test conducted and evaluated pursuant to the DOT regulations shall be "a conclusion or presumption of impairment resulting from the use of illegal drugs." However, just as it is with intoxication, the employer must prove that the illegal drug use proximately caused the accident. Ross v. Ellard Construction Co., Inc., 686 So.2d 1190 (Ala.Civ.App, 1996). Further, no compensation shall be allowed if the employee refuses to submit to, or cooperate with, a blood or urine test after being warned in writing by the employer that refusal forfeits the right to benefits under the Article. Section 25-5-51 also states that "no compensation shall be allowed if, at the time of, or in the course of, entering into employment, or at the time of receiving notice of the removal of conditions for employment have been
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from a conditional offer of employment, the employee knowingly and falsely misrepresents in writing his or her physical or mental condition and the condition is aggravated or re-injured in an accident arising of, and in the course of, his or her employment." The burden of proof is on the employer to establish this defense. Please keep in mind, however, that with regard to, at least the fraud in the application portion of this Section, the denial of benefits appears to only apply to compensation and not medical benefits. With regard to fraud, the Section says "no compensation" and does not say "no benefits." Therefore, medical benefits are still allowable even if the employee is guilty of fraud in the application. Care should be taken to avoid violation of this chapter by employers and care should be taken by the employee's attorney to ensure that, should a fraud in the application of defense be made, that medical benefits arc not cut off. The Americans With Disabilities Act (ADA) also may greatly curtail the effectiveness of the fraud in the application defense. Always be aware of the ADA and its regulations with regard to inquiries into an employee's health and disabilities prior to employment.
 Second Injury Trust Fund
[a] Under the Old Act
The Second Injury Trust Fund is set out in ~~ 25-5-70 to 25-5-75. Section 25-5-74 sets out how the funds are triggered for the purposes of making a claim. The Second Injury Trust Fund applies only where the employee has a first injury and is employed by a second (and independent) employer, who has knowledge of the disability and injury at the time of employment, and then the employee suffers a second injury on the job with his new employer. The new employer may make claim upon the Fund. If the Fund is determined to be liable, the second employer would pay only that portion of the disability occurring during that employment. The purpose of the fund is to encourage employers to hire previously disabled or injured employees and so that the second employer will not bear the entire burden of a new and debilitating, perhaps permanent and total injury to an employee. This is similar to the purpose of ~ 25-5-58 regarding the effect of pre-existing injury and the limited liability of employers pre-existing injuries. (However, aggravation to pre-existing injuries frequently will defeat the language of 25-5-58).
A second injury with the same employer does not trigger the Second Injury Trust Fund.
[b] Under the 1992 Worker's Compensation Act
The second injury trust fund has been repealed by the amendments to the Act.
3.13 Some Pitfalls and Tactics in Workers' Compensation Litigation
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The Workers' Compensation it is set out in a statutory scheme. interpreting it.
Act at first blush appears to be straightforward and simple since However, there are many nuances to the Act and many cases
 Beneficent Purpose
Again, the practitioner is reminded that workers' compensation cases tend to favor the employee by statutory interpretation. The courts will always try to effect the heneficent purposes of the Act, i.e. benefit the employee. For that reason, employees generally recover in litigated cases.
 Trial Court Findings Preferred
It is also important to remember that over ninety percent of all workers' compensation cases are affirmed on appeal. It is undetermined as of yet what effect the new standard of review set out in Whitselt v. Bamsi, 652 So.2d 287 (Ala.Civ.App. 1994), will have on this percentage. The facts are still reviewed in the light most favorable to the findings of the trial court, however, substantial evidence must be found in the record to support the trial judge's findings instead of the "any legal evidence" standard.
 Employee's Agreement With and Understanding of Settlement
In order to obtain court approval of a settlement, the employee must agree to and understand the settlement (as must the employer). Counsel for the employee must fully explain the settlement and its ramifications to the employee prior to settlement and answer all questions fully. An employee who settles a case without agreeing to or understanding the settlement may file an action to set aside the matter resulting in additional expense, legal fees and problems for the parties and the attorneys. Additionally, a disgruntled employee or client could take action or make a complaint against the attorney involved if he feels that he was misled and that the settlement was not in his best interest.
Make sure your client agrees to and completely understands settlement petition and goes before the court!
the settlement before he signs the
 Unauthorized Physicians
As discussed earlier, a frequent problem involves medical treatment. Employers and carriers have "favored" doctors and employees and their attorneys have "favored" doctors. This lends itself to a constant battle over which doctors will provide treatment to claimants. Both sides should work to effectuate the beneficent purposes of the Act and the treatment chosen should be fair and just to both parties. Fair and reasonable use of physicians will reduce costs for everyone involved. Frequently, however, employees use unauthorized physicians, sometimes driven to them by recalcitrant employers and other times simply because the employee chooses that physician. Under the straight language of the statute, unauthorized physicians should not be paid for by the employer. However. the employee, almost without exception, wants this medical treatment at the employer's expense. The employer resists and "bad blood" results in unnecessary litigation.
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Civ. 638 So. Delaney. v.  Psychological Injuries Psychological injuries are another matter which cause great concern to the practitioner. Family Dollar Stores ofAlabama.There is a secondary problem in using unauthorized physicians when an authorized physician refers a patient. 3 . 1993).. 2d 104 (Ala. 689 So. A psychological injury or neurosis which is related to a physical injury is compensable in Alabama. prove and defend. See Federal MORal Corp. App. Many of the tort cases that come out of the workers' compensation setting deal with medical expenses and related problems. Civ. The law provides that a referral by an authorized physician for a reasonable. without authorization. physical injury. However.  Surveillance Frequently. necessary and related treatment to an unauthorized physician will most probably be "deemed authorized" and the employer will be forced to pay. psychiatric or stress related claims. wants these doctors' bills paid as well. 1997). 441 So.46 . 494 So. Also. 2d 443 (Ala. of course. by their very nature. employers and carriers pI ace injured employees under surveillance or observation to check on their daily habits and to ensure that the employee is being truthful in his claims. the employee has little. an award may be made for mental disability even though the medical testimony is inconclusive. 1983). However. 2d 194 (Ala. The expense to the parties and the lack of control of medical expense grows and grows in situations like these. but may have a great psychological injury. but the employer and carrier should be careful to use surveillance only in cases where it is necessary and make sure that they do not invade the privacy of the employee or other persons in conducting this surveillance. if an employer can "catch" an employee behaving in a manner which is contrary to his claims. See also the discussion at ~ 3. Obviously. 1986).App. 1986). Civ. Goolsby v.11 [a]. Surveillance is a useful tool for employers. Inc. Counsel for employees should al so impress upon their clients the necessity for being truthful so that surveillance will not "surprise" the employee or employee's counsel. The practitioner should take steps to make sure that his client's interests are best protected on the medical care question. Frequently. it will assist the employer in his defense of the case and reduce the employee's chances of receiving benefits.2d 1339 (Ala. 2d 955 (Ala. Marion Homes ofBear Creek v. Campbell. Tyson. The employee. See a/so City ofAuburn v. if any. App. 497 So. App. Civ. This is an area of concern for all workers' compensation practitioners because there appears to be a substantial increase in the number of psychological. psychological or psychiatric problems are difficult to describe. See Transco Energy v. the attorney should avoid unreasonable positions as to the selection of doctors and unnecessary trips to numerous physicians. Brown. to other physicians for consultations.
education. Counsel for employers should also hire a competent psychiatrist and psychologist to counterclaims which could be feigned. Vocational rehabilitation in a meaningful manner is also beneficial to the employee in that it may increase his income and improve his outlook on life along with getting him back into the mainstream of society. Frequently litigated cases become a "battle of the vocational experts. particularly in evaluating the case for the presence of the injury and the extent of its disabling nature. testing of his intellectual abilities. Vocational rehabilitation and retraining for other jobs is an important tool for employers in order to get employees back to work in a gainful employment and become a meaningful and participating member of society. obviously any of this competent evidence before a judge would be sufficient to support a judgment for either party. Over ninety percent of all workers' compensation decisions are affirmed on appeal therefore the trial court's decision wi II be the decision of the appellate courts in the great majority of cases. Vocational expert testimony is essential for parties in more and more workers' compensation cases. Rehabilitation from the psychological injury can often be much more difficult than from an anatomical injury because of the frailty of the human psyche. If the employee's counsel feels that his client's mental abilities have been debilitated or decreased as a result of the accident or on-the-job injury. Under the "reasonable view of any legal evidence" standard. he should refer the employee to a competent psychologist or psychiatrist for evaluation and diagnosis and should take all necessary steps to show the disabling effect of this injury. spatial capacities and other intellectual abilities along with an assessment of his physical restrictions and requirements. obtaining vocational rehabilitation for the employee and obtaining vocational experts for rendering opinions concerning the disability in the employee. All of these factors need to be examined by the employee's counsel in order to maximize the client's benefit and to protect the client's interest fully. 3 . trainability or the existence of transferrable skills to other occupations. Factors in which vocational expert testimony become relevant and important are the age of the employee. education and restrictions in order to minimize the ex posure of the casco Th is vocational testi mony may rcqui re testing of the psychological status of the plaintiff. the employee's experts will testify that the employee's disability is permanent and total or very substantial and the employer's vocational expert will testify that the employee has no vocational disability or that it is very minor. This is particularly true in cases of serious injury with severe limitations or restrictions on the activities of the employee as a resultofthc injury. nebulous or groundless. psychological injuries will always cause special problems for the litigator.47 .Because of their nebulous and difficult-to-prove nature. doubtful.  Vocational Experts/V ocational Rehabilitation and Re-training/Job Placement Pitfalls are encountered with regard to workers' compensation litigation in reemployment of the injured employee. Employers may need vocational experts to attempt to find actual jobs which are gainful that the employee could handle in light of his age. Competent psychological or psychiatric help should be obtained for employees when it is in their best interest and to avoid expense to employers in cases of serious psychological injury." As a rule.
While employers are required to pay the reasonable and necessary medical expenses of an employee related to the accident. "gainful employment in that Section means employment similar in renumeration to that earned prior to the injury and the gainful employment sought to be restored must be 'suitable. they are not required to provide vocational retraining to improve the employee's station in life. 477 So. 2d 699 (Ala. App." In Beaver Yallev the appellate court opined that the employer had no duty to pay for a college education for a previously non-degreed employee. standard workers' compensation insurance policies in Alabama do not cover torts such as fraud. age. the employee must no longer he capable of gainful employment.12 and 3. According to Beaver Valley.' that is.The employee and his attorney should keep in mind that if reasonable rehabilitation is offered. if an employee has not reached MMT and the claim is otherwise compensable. Reeves. Priola. See §§ 3. the employer is responsible for temporary total disability payments during the period of disability (without the former 300 week cap). Usually. Civ. Cases in which the employee sues the employer and the carrier and makes claims for different torts such as retaliatory discharge against the employer and outrage against the carrier can create potential conflicts of interest for defense counsel. Therefore.  Maximum Medical Improvement Sometimes there is a problem concerning the term "maximum medical improvement" (MMI). Bartlett v. Because of the allowance by the appellate courts of new tort theories. See further discussion of this point at * 3. S. In addition to creating problems for the practitioner. Lex is 134 (March 5. eTW Mach. Tool. 1981). Frequently. There may he coverage for an employer under a general comprehensive liability policy. 1. 1985) stated that the phrase "restore to gainful employment" means that because of the injury. the employee should cooperate in order to compl y with the Workers' Compensation Act and to avoid the possibility that a refusal would result in termination of benefits.18 for discussions of tort claims in the worker's compensation setting. it is obviously to the benefit of the employer and the carrier to assist the employee in reaching MMI as 3 . Walton & Co. 1999 Ala. App. hut the addition of these torts causes tremendous confusion and conflict. compatible with the employee's pre-injury occupation. 1997). employees cannot be rated for a disability until they have reached MMI. but it is used in every workers' compensation case in Alabama not involving a death claim. The court in Beaver Valley Corp. 2d 408 (Ala. v. outrage or retaliatory discharge since these are "willful" or intentional torts by allegation. 396 So. Generally speaking. this is adifficult date to ascertain. Civ. This term is not set out in the Code. education and aptitude.  Tort Cases Tort cases in a workers' compensation setting are another special problem for the litigator. v. these cases are rapidly evol ving. insurance coverage problems generally arise for tort cases in workers' compensation matters. Generally.08 of this chapter.48 .
"impairment" is a strictly medical term. disability is a permanent injury to the body for which the person should. Lexis 793 (Dec. 1998). Many times the two physicians will render different opinions which can be used to interpolate a figure for settlement purposes. 3 . In an IME the employee is reviewed by an independent physician for the purposes of a "second opinion" from the treating physician to determine whether the employee has reached maximum medical improvement and. Traffanstedt 1998 Ala.  Impairment Rating Versus a Disability Rating The practitioner should keep in mind that with regard to a disability of an employee. be compensated. Medical evaluation is performed to obtain a permanent physical impairment. An important assistance in these matters for employers and their attorneys is the independent medical examination (IME). Frequently. if so. disability is physical physical functions normally. vocational rehabilitation. The evaluation rating of 'permanent disability' medical responsibility and function. 11. A patient is 'permanently disabled' if 'under a permanent disability' when his actual or presumed ability to engage in gainful activity is reduced or absent because of 'impairment' and no fundamental or marked change in the future can be expected. then employees are rated for a disability by vocational experts or by judicial determination. Permanent physical impairment is any anatomical or functional abnormality or loss after maximum medical rehabilitation has been achieved in which abnormality or loss the physician considers stable or non-progressive at the time the evaluation is made.49 . physical rehabilitation and the like. impairment is an administrative. GUBMA Contractors v. Physical impairment is a purely medical condition.soon as possible through medical assistance. The problems of MMI and the disability to be given by the treating physician occur in nearly every case. The Manual For Orthopaedic Surgeons in Evaluating Permanent Physical Impairment notes the distinction and difference between the terms "permanent disability" and "physical impairment": • Permanent disability is not a purely medical condition. Disability is a vocational or legal term. a second opinion by IME will assist the parties in settling a case. It is impossible to evaluate a matter for settlement purposes while the employee is still under the care of a doctor and not at maximum medical improvement. From the standpoint of the employee. Medically. the extent of disability. Civ. it is also important to reach maximum medical improvement from a personal standpoint and to assist the plaintiffs attorney in evaluating the case. or should not. not a • • • and inability to perform • Legally. App.
February 15. Chicago. but medical payments and rehabilitation benefits can now be settled between the parties by lump sum. of the American Medical Association. Under that Section. (See 25-5-56 of the amendments. at a minimum. Such court approval must be with the agreement of all parties. OP-298." The petition should set out. The AMA publication may be obtained by writing: Order Dept. Monroe. The petition to settle should set out sufficient findings of fact and conclusions of law and an order approving the settlement should be able to stand alone as a judgment sufficient to withstand appeal as set out in § 25-5-88. Wisconsin 53566. any settlement for amounts less than the benefits stipul ated under the Workers' Compensation Act must be approved by a circuit judge who must determine that it is in the best interests of the employee to accept the lesser sum and approve such settlement: otherwise it is invalid. concluding litigation after a doctor has rated an employee. Illinois 60611. Settlement is governed by § 25-5-56.14 How to Do A Workers' Compensation Settlement Under the 1992 Workers' Compensation Act Keep in mind with regard to any settlement of a workers' compensation case that under the amendments to the Act. § 3. American Medical Association.) * All workers' compensation settlements should be court approved. 1958. at 1-2). American Academy of Orthopaedic Surgeons (quoting A Guide to the Evaluation of Permanent Impairment of the Extremities and Back. The Guide to the Evaluation of Permanent Impairment (American Medical Association. Michigan Ave. 4444 N. a workers' compensation case. The Manual for Orthopaedic Surgeons can be obtained by writing to the American Academy of Orthopaedic Surgeons. Jour. the following information: names of the parties.. not only compensation.  Other Problems Other special problems involving the Workers' Compensation Act are scheduled injuries affecting the body as a whole. PO Box 821. While court approval is not required in 100% of the circumstances. All practitioners of workers' compensation matters should have these works in their library.50 .Manual for Orthopaedic Surgeons and Evaluating Permanent Physical Impairment. independent contractor versus employee status. Additionally. it is a very good practice. These are all matters to be carefully thought out by the practitioner in prosecuting or defending. that they are subject 3 . they provide insight into doctors' thoughts on impairment and disability of patients. and the danger of permanent and total awards. That Section states that a determination by the circuit court "shall contain a statement of law and facts and conclusions as determined by said judge. 1977) and the Manual for Orthopaedic Surgeon in Evaluating Permanent Physical Impairment (American Academy of Orthopaedic Surgeons) are very important tools for the workers' compensation practitioner in preparing for evaluating a workers' compensation injury.
if necessary. the judge signs the order and the employee and his or her attorney sign thejudgment/order as "satisfied" to protect the employer and carrier from further claims. As discussed earlier. Obviously. plus all relevant personal. in the case of a lump sum award. After a hearing is held before the circuit judge where the merits of the case are discussed and the employee is questioned by the judge. previously paid to the employee prior to the date of settlement. The employee's signature should be notarized. date of the accident place ofthe accident. § 3. wages for the last several years. The order should also state that the settlement is in the best interests of the employee. injury sustained. or representative of a dead employee can file suit against a third-party who tortiously caused that person's injury or death. keep in mind that under the new Act.to the Act. negotiation should be conducted in an open-handed manner with the best interests of your client and fairness to the opposing party in mind. if any. proper average weekly wage. 3 . it is best to set out the wages of the employee and the calculations used to formulate the settlement so as to allow the judge an opportunity to determine the propriety of the settlement. under certain circumstances. including medicals. medical Prior to evaluating. of third-party liability cases wherein the injured employee. name of treating physicians with attached medical documentation and an agreement and statement of understanding by the parties that they are aware of their actions. payments and vocational benefits are subrogable in third-party actions. With this information a determination can be made as to the exact nature of the injury sustained by the employee and the extent of his or her vocational loss.15 Procedure to Settle a Case Under the 1992 Workers' Compensation Act Additionally. The type jobs the employee has worked in the past along with the duties and physical and mental requirements of those jobs is also vital. age of the employee. any disability or alleged disability. recitation of any henefits and how the benefits were calculated. The order must be signed and dated by the judge. employee's average weekly wage. The order should either restate these facts or incorporate by reference the settlement petition and adopt its facts. taking into consideration any defenses or other variables. educational. litigating and settling a workers' compensation case obtain all background information concerning the employee including wages at the time of the accident. Factors to consider in addition to the above arc the existence. medical and vocational information. amount of money to be paid.51 . and proper workers' compensation rate. A lump sum award also allows the employer to take a six percent discount from the payments to reduce the award to present value. Consideration must then be given to any subrogation interest of the employer or carrier. Calculations should then be made as to the ranges of value of the case.
90S/per month = 10. but.OOper month. In claims involving serious injuries.Counsel should inquire about the age.00 x ($2. If the employee receives a lump sum award from his employer/workers' compensation carrier. A workers' compensation settlement can have a very profound effect upon a claimant's Social Security Disability claim.90S/month) Stated another way. the employee's workers' compensation benefits would exceed the SO% threshold.3 weeks x $443/week $1 . 146. such as workers' compensation benefits. Additionally.00 net after excluding expenses. § 424 a)(a) (/988). Annuity payments or structured settlements are becoming more and more frequent in workers' compensation cases. the Social Security Administration would be free to use the State Workers' Compensation maximum (Alabama's max is now $443/week) to calculate what the employee is receiving per month from both Social Security and Workers' Compensation. the employee's $SOOa month Social Security Disability check would he offset for a period of J Y2 months ($20. education. the employee's attorney must determine whether or not the injured employee intends to file for Social Security Disability benefits.S months). EXAMPLE: Assume a claimant is entitled to Social Security benefits of $SOO. A Social Security Disability Claimant by law can receive no more than SO% of his average current earnings per month from sources such as Social Security Disability and Workers' Compensation.000. The attorney should also review whether it would be in the best interests of the parties to terminate the matter on a periodic payment basis or a lump sum basis. so that total payments received per month do not exceed SO% of the employees average monthly earnings.] of how workers' Offset can he avoided. Secretary ofHHS. 7S0 F. Frequently. Supp. as well as 3 . The Social Security Administration will reduce a claimant's Social Security Disability benefits by the amount of monthly payments he/she receives from other sources.600.000.000 $1 . In the above example.00 x . (4. The reduction of Social Security Disability benefits is commonly referred to as "offset".SO = $1. and he would not be entitled to recei ve any monthly benefits from Social Security. thus the SO% threshold is $1. a well insured and soundly structured settlement can take care of living expenses in the future for employees who are seriously disabled and relieve the employee of any necessity of investing funds himself or caring for funds that the employee might not have the education or means to care for otherwise.00). these work to the benefit of both parties in that the employer can settle a potentially dangerous case for less money than on a "cash basis" or in a protracted periodic payment basis and the employee can receive much more money over a long period of time than he could in a cash settlement. PROBLEM: ° = [See Rodlin v. The Workers' Compensation claim is settled for $20. for a good discussion compensation benefits can affect a claimant's Social Security benefits.52 .00 a month.600.000.c. The claimants average current earnings are $2. it requires the attorney representing the employee to become familiar with the monthly amount the employee will receive in Social Disability benefits. employment history and personal conditions of the employee. In these the employee receives cash "up-front" in the settlement and then receives an annuity contract from the employer or its workers' compensation carrier guaranteeing payments of certain funds in the future. (42 US.
(See Forms page 65. Failure to recognize an offset situation and failure to properly address this situation in the settlement of a workers' compensation claim could open the door for a claim for malpractice. and a copy can be sent to the Department of Industrial Relations. If the case was previously litigated prior to settlement. Closing medicals is also an excellent economical tool for employers and carriers since it ends potentially very expensive lifetime medical treatment and administrative costs and cures problems of what treatment is necessary and related. the Circuit Clerk's office requires the filing of an original of all documents and a copy so that the Clerk's office may retain a copy for its files. this is an excellent way for the employee to obtain additional monies for his injury which can help him deal with day-to-day expenses. 3 .53 . for a good illustration of how to draft a workers' compensation agreement and petition so that offset is avoided. However.the 80% threshold the Social Security Administration will use for determining offset. The particular settlement form should then be prepared and reviewed by all parties attaching relevant medical information such as medical records. the costs are generally prepaid and are handled by agreement of the parties during the settlement. Other jurisdictions are less formal and merely require a conference with the judge at the convenience of all involved to review all pertinent matters and obtain approval. doctors' reports or doctors' depositions to the settlement petition and order so that the judge might review them in determining the bona fides of the settlement and whether it is in the best interest of the employee. the attorney representing the injured employee should make every effort to eliminate and/or reduce the offset of Social Security Disability benefits which can occur in the settlement of a claim for workers' compensation benefits. can he "closed" and settled. The settlement agreement and petition should be drafted in a manner to reflect the proration of the benefits over the employee's life expectancy.) settlement Regardless of the method chosen. Once the settlement has been signed by all parties and the judge. Workers' Compensation Division for statistical information and for verification required by the Department of Industrial Relations. The attorney can structure the workers' compensation settlement in a way that the employee will not receive a lump sum settlement but rather in periodic payments which do not create an offset situation. A question which comes up frequently in Alabama is whether the medical benefits and the entitlement of the employee to them. In a case which has not heen litigated prior to settlement. Frequently. a filing fee is required with the settlement papers. Some courts require an advance appointment with the judge and an early filing of a complaint so that the matter can be docketed and set for a settlement day. a method which is equally effective is to prorate a lump sum award over the employee's life expectancy so that the weekly benefits received by the employee do not create an offset against his/her Social Security Disability benefits. particularly if his injury is relatively minor and is not going to be a permanent prohlem. Each judicial circuit in Alabama differs as to the manner in which settlements are heard. It is good practice to provide a copy of all relevant settlement papers to each client and the workers' compensation carrier so that all parties will have the same documentation in their possession for any future reference or questions. provision (5). Some jurisdictions allow the closing of future medicals provided it is in the best interest of the employee and that there is appropriate and efficient consideration.
e. App. Remember that closing medicals is a contract wherein the injured employee relinquishes a right granted by statute. § 3. However. or if the employee receives periodic payments. App. result in future problems for the practitioner. is not recommended and would be detrimental to the employee and employee's counsel. Closing the future medicals in a situation where the employee is poor. Civ.However. v. 2d 560 (Ala. v. Hinkle. 2d 903 (Ala. 2d 160 (Ala. Williams. 459 So. Failure to disclose these could. See Combustion Ell gineering. Ramada Inn South. agreement and consent of the employee must be obtained and all ramifications discussed. 1989). Attorneys fees are covered in 25-5-90. App. i. See Drummond Co. App. 541 So. Civ. 1984). Civ. 1987). medical expenses are not subject to an attorney fee and there is nothing in the workers' compensation statutes providing for the assessment of attorney fee for obtaining medical expenses on behalf of the employee. v. The fee must be approved by the circuit judge who also approves the employment of the attorney by the plaintiff. See Ex parte St. the fees should be deducted from either the lump sum compensation award to the employee. 2d 1090 (Ala. Be sure the exchange is for appropriate consideration. the attorneys fees can be paid in a lump sum fashion "up-front. Lolley. Top Line Retreads ofDecatur. the Supreme Court recognized the difficulty in ascertaining the "back end" of a lifetime benefit and allowed the attorney fees to be paid in a lump sum "up-front. again. 528 So. 1988). Watkins. these lump sum awards of attorney fees were ordered from the "back end" of compensation benefits set by the Supreme Court in Ashland Chemical Co. 2d 130 (Ala. App. App. has no health insurance. There are several new cases concerning attorney fees in lawsuits filed by employees seeking medical benefits which have been denied hy the employer and/or carrier. Civ. Any award of attorney fees in a lump sum must be reduced to present value." The judge has the discretion to direct the manner of payment of attorney fees. the total periodic payout to the employee must be reduced to present value for the computation of the attorney fee. 2d 885 (Ala. * Formerly. 2d 1007 (Ala. v. Regardless of the manner of payment to the employee. 550 So. In all of these cases. there is a case holding that a lump sum attorney fee award not reduced to present value may not be a violation of the fifteen percent cap. Walley. full disclosure. 484 So. or has a serious injury. Counsel for employees are advised to be very careful in closing future medical benefits for their client and if a decision is made in this regard. Because medical payments are specifically excluded from the definition of compensation by the Act (~ 25-5-1 (I).. Regis Corp. 1988). 535 So.16 Attorney Fees Attorney fees in Alabama for workers' compensation cases are set by the statute at no more than fifteen percent (15%) of the compensation awarded or paid. 1983). Day v. App. fair to all parties. some jurisdictions will not allow the closing of future medicals. or insurance which will cover the injury. Inc. Civ. 527 So. However. 1985). However." However. 2d 130 I (Ala. 435 So. See Lawler Mohiie Homes v. v.54 . Moore. See Russell Coal Co. Civ. the claims for attorney fees have been rejected. The employer pays no portion of the attorney fee and any question regarding attorney fees is between the employee and his attorney. Inc. the Alabama Supreme Court is coming closer to awarding attorney 3 . 1989). in a pro rata fashion from each periodic payment. Civ.
we would look to the acts of the employer to determine whether the employer was justified in refusing the payment of the requested medical and surgical expenses or whether its refusal to pay was done in bad faith . frequently the employee's attorney is paid directly by the employer or carrier in a lump sum. However. whether the employer willfully and contumaciously refused to provide the expenses for the medical care necessarily and directly related to the on-the-job injury. It is only a matter of time before a case is so decided. the plaintiff attempted Co WE. While attorney fees are the liability of the employee and not the employer under Alabama law.i. probably would be inclined to assess attorney fees against the employer for those bad acts. The Supreme Court decided that if it were to allow such an award of attorney fees.e. then we would be inclined to exercise our equitable powers and. regardless of our view as to the statute's wisdom or fairness. nor was there a contract in that case that provided for such fees." It then affirmed the trial court's denial of the motion to tax attorney fees indicating that this was a legislative matter but noted that "[tjhe legislature has not seen fit to broaden the act in this area. thus. there was no finding of bad faith and therefore no attorney fees were awarded. for attempting to collect medical and surgical expenses. In the exercise of our equitable powers. Even though the trial court. which should be liberally construed in favor of the employee. utilizing our policy-making function. The Supreme Court held that "it is well settled that attorney fees are recoverable only where authorized by statute. Bowman Transportation. If the actions of the employer evinced bad faith. The Court of Civil Appeals stated that the plain language of the Workers' Compensation Act allowed "no provision for the assessment of attorney's fees for the obtaining of medical and surgical expenses. it must do so by: "invoking the equitable jurisdiction of the Court so as to effectuate the beneficent purpose of the Act. ill did not attempt to tax attorney fees directly under the Workers' Ex parte Cowgill. We must give effect to the plain language of the statute as enacted by the legislature. or in certain equitable proceedings when the interest of justice so require. as in the case when the opposing party has acted in bad faith. when provided in a contract." This is the so-called "American Rule" of awarding attorney fees. 587 So. Under the Workers' Compensation Act there is no provision for attorney fees under this circumstance. 587 So. While this money comes directly from the 3 . the Alabama Supreme Court will allow attorney fees for the coI1ection of medical expenses in workers' compensation matters.55 . to tax attorney fees against his employer. ill." Compensation Act but rather through the use of the inherent equity powers retained by the trial court to grant attorney fees and thus effectuate the beneficent purpose of the Act. it is probable that given the right set of circumstances. the Court of Civil Appeals and the Supreme Court sympathized with the employee and his plight. Inc. 2d 1002 (1991).fees in these situations. 2d at 1003 (emphasis added)." In Ex parte Co wE.
App. While the attorney is obviously entitled to charge his client for representation and is entitled to charge the employer a fee for "protecting its interest" on the subrogation matter. but are separate torts which. Civ. When an attorney is representing the employee in a lawsuit against a third-party and has also either settled the workers' compensation case or is negotiating the settlement. Be very careful as to the total amount of money recovered and the total fee taken to determine that it is fair and equitable to both the client and the lawyer. 523 So. 1980). and others). As discussed earlier. either with or without a civil action in the same proportion that the amount of the reduction in the employer's liability to pay compensation bears to the total recovery had from such third-party. INA v. The courts have reasoned that fraud and outrage are actions not barred by the exclusivity provisions of the Act (§ 25-5-53. See Lowman v. there are certain tort actions which have been carved out either in the statute or in case law. Humphrey. grievances or lawsuits. 547 So. although rising out of the employment. See Sokoll v. 2d 90 (Ala. Beware of combining these fees in a manner that could render the attorney fees in excess of the agreed upon percentage. Piedmont Executive Shirt Manj. the employer that part of the attorney's fees incurred in the settlement with the third-party [by the employee]. Phillips. 1988). These torts are fraud.17 Torts in a Workers' Compensation Setting Even though the Workers' Compensation Act is an exclusi ve remedy for employees against their employers for injuries which arose out of. This can happen if one takes a fee from the several different funds independently without regard to the maximum recovery. 2d 447 (Ala. These have involved jury verdicts of between 3 . Lutt and Smith. But. outrage and retaliatory discharge or termination. This could result in bad feelings. and wrongful termination are being filed against both employers and workers' compensation carriers. the employer does not have to pay a pro rata share of expenses. it is deducted from the employee's share of the settlement. and in the course of their employment. Claims for outrage. However. § 3. the attorney must be careful not to overcharge or take a double fee.56 . There have been several cases recently in Alabama regarding "outrageous" conduct by the carrier in handling the medical portion of the claim. the employee's attorney is entitled to reimbursement of expenses from the employee in addition to the fifteen percent. 2d 845 (Ala. in third-party liability cases as authorized (and its workers' compensation carrier) is liable for: A large attorney fee paid in an by ~ 25-5-11. fraud. 380 So. 1989)..employer. in a workers' compensation settlement. the attorney for the plaintiff/employee must be very careful to review the attorney fees charged. are not job-related or associated with the job-related injury. up-front fashion can be problematic in negotiating a settlement.
000 jury verdict on the tort of outrage. Shewbart. the employee had no right to sue his employer or compensation carrier for any tort claims. Under our decisions. 2d 158 (Ala. The Court may be setting the stage to determine that bad faith actions are allowable in workers' compensation cases. CNA. 569 So. Obviously. 569 So. The Garvin Court stated: "The tort of outrageous conduct or intentional infliction of emotional distress involves 'extreme and outrageous conduct' by one who 'intentionally or recklessly causes severe emotional distress to another' . [citations omitted].$750. v. the cloak of immunity is removed.  Outrage Outrage claims in the handling of workers' compensation claims are becoming more common. However." 442 So. 567 So. So. In Garvin v. Until fairly recently.000. The Court further stated: When the employer's or carrier's conduct crosses the Iine between mere failure to pay and intent to cause severe emotional stress. Co. the burden on the plaintiff to make out a case of outrageous conduct is heavy. 576 So. Employees were limited to claims under the Workers' Compensation Act due to the exclusivity provisions of that Act (§§ 25-5-52 However. 442. then. McDonald. conduct and has caused him severe emotional distress in handling his medical expense The Alabama Supreme Court held that the evidence was sufficient to support a $750.000. Shewbart. . 1990)). 2d at 83. see the dissent of Chief Justice Hornsby in Farley vs. situation. the appellate courts of Alabama and the Alabama legislature have changed that and more workers' Alabama and 53). The employee in Mclronald alleged that the insurance carrier had engaged in outrageous claim. the Supreme Court stated that the employee's bad faith claims against her employer and the employer's workers' compensation carrier were barred by the Workers' Compensation Act and its exclusivity provisions. The Alabama Supreme Court addressed outrage claims in workers' compensation matters in Continental Casualty Ins. plaintiffs can bring outrage claims. 2d 80 (1983). The language the court used looks like that used in the definition of "bad faith" rather than outrage. Plaintiff must show that the conduct is so outrageous in character and so extreme a degree so as to be regarded as atrocious and utterly intolerable in a civil ized society. . 2d 712 (1990). Shewhart. 2d 712 (Ala.000 and wrongful termination suits resulting in judgments over $300.57 . but that the tort of outrage was not barred. the handling of a workers' compensation claim from day one through its conclusion is very important and will become a much more fertile area of litigation in the future for lawyers and a much more expensive and troubling area for employers and insurance carriers.. 2d 1208 (1990) and Wooley v. While no bad faith causes of action have been allowed to date in workers' compensation cases against the carrier. 1991) and Wooley vs.000 and $ t . Bad faith actions have only been allowed in first part 3 .
This language seems to allow a jury to delve into the insurance carrier's/employer's reasons for not paying to determine if the reasons are "good" or "permissible.. Woo/e. 2d 888 (Ala. This appears to leave the statute of limitations in the hands of the plaintiff who could extend the statute by re-submitting a claim to the defendant for denial. a continuous tort occurs when there is exposure on a continuous basis to harmful substances or conditions. also included an outrage claim and a "continuous tort" statute of limitation claim. Plaintiff appealed the summary judgment on bad faith and the directed verdict on outrage." The Court said that "in short. and to be regarded as utterly intolerable in a civilized society. on occasions when [the carrier] did assert its legal right it did not do so in a permissible way.y. In Farley vs. 2d at 1220 (emphasis added). involved a claim for bad faith and outrage. 2d 158 (Ala. Summary judgment was granted as to all claims except for outrage which went to trial. 576 So.58 . While not a workers' compensation case. or there is contamination of a well or stream.insurance actions by persons against their insurance carrier for bad faith refusal to pay insurance benefits with no just or reasonable basis on which to do so. particularly. the carrier obtained a directed verdict on the remaining issue of outrage. The reasoning of Hillis could be extended to outrage situations under the authority of McDonald. wantonness." Continental Casualty Ins. Of particular interest in this opinion are the dissents of Justice Jones and. i." According to the court." Effectively the statute does not begin to run until the defendant's last alleged tortious act directed at the plaintiff. 3 . there is a simple sustained method pursued in executing one general scheme. the tort "is a continuous tort. negligence." Frequently juries do not agree with the reasoning of insurance companies for reasons completely unrelated to the facts or the law. and the jury could have found that. 1991) the workers' compensation insurer settled the workers' compensation claim after the filing of a suit for benefits. 596 So.e. At trial. The Supreme Court also noted that while the statute of limitations for outrage was two years. "so outrageous in character and so extreme a degree as to go beyond all possible bounds of decency. The Court stated that outrage required that the defendant's conduct "must be extreme and outrageous and utterly atrocious in a civilized society" and that the insurer in McDonald "did not insist on its legal rights in a permissible way. outrageous and utterly atrocious conduct" to an examination of whether an insurance company or employer has a "legal right" to do something. the carrier moved for summary judgment on the tort claims. After the workers' compensation portion of the case was settled. bad faith and outrage. 1992). CNA. This appears to take outrage from being "extreme. Rentokil." The Court also reaffirmed that Alabama has not allowed a bad faith claim against the employer or its carrier in workers' compensation matters. it was a work-related exposure case and defined how a tort is "continuous. 567 So. Hillis v. The Supreme Court ruled in favor of the defendant/carrier and swung back toward the original definition of outrage. [the carrier] had no legal right to delay payments for no good reason. Chief Justice Hornsby wherein he states that he feels that bad faith causes of action should be allowed against workers' comp earners.
The Court." ** According to the court the tort of outrage "does not recognize recovery for mere insults. petty oppressions or other trivialities. Adjusters. 52 and 53. 1989)). threats. The question is whether it is "substantial evidence" or "clear and convincing proof" If the latter is required to support a verdict. giving the plaintiff "the run around. 2d 880 (Ala. this is a good case for carriers. 1991). again. the plaintiff must put on clear and convincing proof of outrage. 547 So. tortious interference with the physician/patient relationship. Tittle involved an action against two insurance adjusters and a rehab consultant for negligence. [the plaintiff] must meet a higher burden or make a stronger showing than that required by the 'substantial evidence rule' as it applies to issues in regard to tort claims generally." The following types of conduct have not been declared outrageous: unsympathetic attitude.." 3 . Again. Piedmont Executive Shirt Manuj. [she] must present evidence that. The trial court granted summary judgment for the insurance company on all counts and granted partial summary judgment for the other defendants on all counts except outrage. 2d at 881 (citing Lowman v. In outrage cases. The court reiterated its earlier position that while the plaintiff must put on "substantial evidence" of outrage in order to get to the jury.The Farlev court reiterated the fact that bad faith claims against workers' compensation carriers are barred by the exclusivity provisions of the Alabama Workers' Compensation Act. However. fraud. Custard Ins. the plaintiff has a "heavy burden. Co." non-timely payment of medical bills. 590 So. Another case wherein the Alabama Supreme Court addressed the outrage issue and other tort claims combined with workers' compensation matters was Tittle v. (Citations omitted)." Tittle. invasion of privacy and outrage. and questioned whether the plaintiff had met her burden of submitting substantial evidence so as to allow her claim to go to the jury. indignities. The court found that "there is clearly a threshold beyond which an insurance company's recalcitrance must go before it crosses into outrageous conduct" Therefore. The court discussed outrage in detail. Chief Justice Hornsby indicated that he would have allowed the bad faith claim to be decided by the jury. stated that the exclusivity provisions of the Workers' Compensation Act do not prohibit an action for intentional tortious conduct such as fraud or outrage and stated "the act should not be an impervious barrier. again. in order for the jury verdict to be sustainable on appeal. insulating a wrongdoer from the payment of just and fair damages for intentional tortious acts only very tenuously related to work place accidents. in 25-5-1 1. There appears to be some discrepancy in these cases as to the plaintiffs burden of proof in order to get past a motion for directed verdict. it appears likely that the latter is the requisite burden. it was noted that the burden upon the plaintiff is very heavy and "in order to ensure against borderline or frivolous claims. annoyances. 2d 90 (Ala. if accepted and believed by the jury would qualify as clear and con vi ncing proof of the claim. wantonness.59 . and referral of plaintiff to various doctors. In order for her claim to go to the jury. 590 So.
60 . at 881. we deem it appropriate to address the standard of proof to be applied in determining whether a claim is due to be presented to ajury. . Piedmont Executive Shirt Manu! Co. In order to insure against borderline or frivolous claims. 1997). The court indicated that "in carving out this exception for allowing intentional tort claims . 2d 1208 (1990)." then the employee's injuries sustained by the fraud were not protected by the exclusivity provisions of the Act. in view of the exclusivity 3 . but reversed the summary judgment on the fraud count.!d. The Court found that "at most" the plaintiff complained of "insults. In allowing the fraud action the court said that the exclusivity provision of the Workers' Compensation Acts did not apply nor did they "afford protection for injuries not caused by [a] job-related accident.L.e. or other trivialities.. we believe. and thus created an independent cause of action. convincing (Note: Is there a "bright line" between "substantial proof" or is it difficult to ascertain the distinction") evidence" and "clear and It was determined that the plaintiff had not presented clear and convincing evidence that the carrier had acted in such a fashion. 2d 90 (1989)." Id. However. The Alabama Supreme Court has continued to limit an employee's right to submit a claim of tort of outrage arising out of a worker's compensation case. the Court did allow an employee to assert a claim of outrage when he was caused to endure great pain due to lack of medical treatment. v.  Fraud The Supreme Court has approved fraud actions against employers and/or carriers in workers' compensation cases.. annoyances. In Lowman the employee was hospitalized as result of an on-the-job injury. The Supreme Court in Lowman stated. McDonald. 547 So. conspiracy to defraud and outrage. She filed a workers' compensation claim with her health insurance carrier and received temporary total disability benefits for some time. 1997 W. 567 So. we are constrained. 112719 (Ala. however." none of which entitled her to recover. that the standard of proof to be applied in determining fraud in a workers' compensation situation would be a higher standard then ordinarily required.. The court said: "We recognize that intentional tortious conduct (i. Continental Casualty Ins. threats. Co. She claimed that her employer defrauded her by compelling her to file her claim for medical benefits with her health insurance carrier rather than the employer's workers' compensation carrier. In Lowman v. in accommodation to the exclusivity provisions to rule out all questionable claims. petty oppressions.. at 881. Since it was not an "accident." The court stated the fraud perpetrated at the hospital was an act that was not an "accident" within the meaning of the Workers' Compensation Act. the Supreme Court reversed the trial court's summary judgment in favor of the employer on allegations of fraud. The Supreme Court agreed that there was no outrage. indignities. intentional fraud) committed beyond the bounds of the employer's proper role is actionable. Ex Parte Crawford & Co.
Regional Medical Ctr. 1992). This statute states: "No employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover workers' compensation benefits under this chapter or solely because the employee has filed a written notice of violation of a safety rule pursuant to subdivision (c)(4) of § 25-5-11. App. or an employer's insured. Lexis 200 (July 31. 1998 Ala.2d 1034 (Ala. 2d 1163 (Ala. Civ. The Court in Lozier Corp. Vol. 1993). 1997). Ala. t-«. This Section of the Workers' Compensation Act was enacted to offset the harsh effects of the employment-at-will doctrine. 1987). See Code 1975 ~ 12-21-12. Therefore.  Wrongful or Retaliatory Termination The legislature of Alabama has also given employees a remedy outside the exclusive provisions of the Workers' Compensation Act in the Retaliatory Termination Statute (§ 25-5-11. Liherty Mutual Ins.1 (1975. Lexis 134 (March 5." Punitive damages arc recoverable in a claim for Retaliatory Discharge. Civ. 507 So. the Supreme Court stated that damages can be awarded under the Section in accordance with the "general law of torts. 1986) (emphasis added). 624 So. Co. App. in order to present a claim to the jury. would qualify as clear and convincing proof of fraud. a fellow employee.2d 560 (Ala. v.clause. must make a stronger showing then that required by the 'substantial evidence rule' as it applies to the establishment of jury issues in regard to tort claims generally.1 of the Alabama Code).. 673 So. 2d 395 (Ala. Morgan v." Ala. Though the decision is difficult to understand the bottom line is very clear: an employer and a workers' compensation carrier can be liable in fraud for their handling of a workers' compensation claim. Co. 2d 925 (Ala. This Section of the Code has been upheld on appeal even though it omits any specific reference to damages for violation of its provisions.61 . we hold that in regard to a fraud claim against an employer. Code ~ 25-5-11. 1993). Ex Parte Usery. Bartlett v. stated that the punitive damages award of $ I00. Franklin Ferguson Manf. CTW Machine Tool. 610 So. the plaintiff must present evident that.. Other cases discussing a claim of fraud arising out of a worker's compensation case include Clark v. that the 3 .000 to the employee due to retaliatory employer acted with a wrongful discharge was not excessive because there was evidence intent when it fired her from her job.. 624 So. Co. 1995) and Upchurch v. 1998). Rep. Gray. Universal Underwriters Ins.. if accepted and believed by the jury. that a plaintiff. in order to go to the jury on a claim. Northwest Ala. In Carraway v.
The burden then shifts to the employer to come forward with evidence that the employee was terminated for a legitimate reason. Benefits were granted. 1992).. The court stated: "Whi Ie we cannot accept Twilley's argument that hi s burden of proof 'should be determined in accordance with the general law of tort utilizing proximate cause analysis to fashion a simple "but for" lest for the jury to determine the "sole" cause of the plaintiffs determination. In Twilley the employee injured his back and filed a claim for workers' compensation benefits. 'we do not believe that the legislature intended that an employer is entitled to a directed verdict if the employer presents any evidence that the termination was not because of the employee instituting or maintain an action to recover workers' compensation benefits.62 . Woodham Plumbing Co. whereupon the employee would have to prove that the reason was but a pretext for an otherwise impermissable termination.[a] Burden of Proof In an action for retaliatory discharge. the employee may establish a prima facie case by proving that he was terminated because he sought to recover workers' compensation benefits. which would be an impermissable reason. Twilley counterclaimed alleging that he had been "constructively terminated" for having filed the workers' compensation claim. 2d at 1368. The trial judge set aside the verdict." 536 So. Cases were cited from several jurisdictions or similar language in support of their decision. The court decided that the word "solely" in the statute had a wider definition than one would think upon initial reading. The employer had rules requiring a medical release that did not contain any restrictions and Twilley did not meet this criteria. [b] Cases Twilley v. The case also demonstrates that an employer can be exposed to a judgment well in 3 . Upon agreement by the parties. which gave a broader meaning to the word" solely" The case is important because of the interpretation given the word "solely" and because the case holds that the employee is entitled to ajury trial with regard to the issues concerning wrongful termination. Daubert Coated Product. the claims relating to workers' compensation benefits were dismissed. further interprets this statute. he had been "constructively terminated. and the only claim heard by the trial court was Twilley's claim of retaliatory termination. 536 So. but later the workers' compensation carrier filed suit seeking a declaration that the employee was not entitled to any further benefits." The jury answered a special interrogatory that the employee was not terminated "solely" because he sought to recover the workers' compensation benefits and yet returned a verdict for the employee. He claimed that these rules did not allow him to come back to work and though he was ready.. but the Alabama Supreme Court reversed. The court reasoned that a liberal construction of the Workers' Compensation Act should be applied to workers' compensation cases to effectuate the Act's beneficent purposes. willing and able to return to work. 599 So.2d 1120 (Ala. 2d 1364 (1988). Inc. See Culbreth v.
1991). (He was injured in October 1984 and allowed to return to work in April 1987).. Femco Southeast. 1991) stands for the proposition that plaintiffs need only have a claim. supra. 3 . The court found that the second lawsuit was "without substantial justification" and was merely an effort to require payment of medical bills for which the Court held the defendant not liable in the previous lawsuit." Another case along the lines of wrongful termination is Patrick v. 588 So. Birmingham Coca Cola Bottling Co. in order to be entitled to a cause of action for wrongful termination under ~ 25-5-11. but the employer argued that the employee was merely trying to retry an earlier workers' compensation case decided in the employee's favor.. plaintiff claimed that he was laid off because he claimed workers' compensation benefits. Bruno's. However. though not make a claim for workers' compensation benefits. In this case." Twilley. Diversified Products Corp. Inc. 1991). 2d 1299 (Ala. Additionally. During a hearing. There was documentary evidence in the file indicating Bruno's did not want to re-hire the plaintiff because of his poor job performance and because of numerous disputes plaintiff had with his supervisors about attitude and performance..excess of any workers' compensation judgment. The employer sought an award for attorney fees under the Al abama Litigation Accountabi lity Act and the trial court entered judgment in favor of the employer and against the plaintiffs attorney for $11 . In Hayden the plaintiff filed suit as a result of being terminated because he had been on leave of absence for more than one year as a result of his workers' compensation injury. The employer also counterclaimed against the employee alleging fraud. There are several other cases also interpreting wrongful termination. 575 So. the employer claimed that another person who was more versatile than the plaintiff was hired to replace the plaintiff. 590 So. 2d 1100 (Ala.63 .. 1991). lnc. it awarded no damages on the counterclaim. but it would also effectively discourage employees from ever filing a claim in the first place.550. misrepresentation and suppression of facts. not only on the plaintiffs claim but also on its counterclaim. 2d 874 (Ala. The Alabama Supreme Court also said that the word "termination" was broad enough to include a " constructive termination. McClain v. * In Meek v." The Court found such an interpretation unreasonable and not supported by the law. 578 So.1 would not only encourage some employers to terminate injured employees who file claims for workers' compensation benefits.1 and that he does not have to actually file suit for his benefits in order to be covered by wrongful termination Section of the Act. The employer contended that Patrick was laid off due to a decrease in business and because of problems with the quantity of work put out by the plaintiff. The jury returned a verdict in favor of the employer. The Alabama Supreme Court found that the trial court had made an "appropriate utilization of the Alabama Litigation Accountability Act. Another case which interpreted the wrongful termination statute is Hayden v. the plaintiff admitted that the only damages he sought in the second action were compensation for medical expenses. 2d 259 (Ala. The court held that a literal interpretation of the word "action" in the Act would have a "chilling effect" on the employee's exercise of a statutory right and when "viewed pragmatically. a literal interpretation of 25-5-11. the plaintiff filed a lawsuit against his employer alleging wrongful discharge.
Beverly Enterprises. Recent decisions interpreting retaliatory discharge include Dow . 1995). 1996). 2d 724 (Ala. Civ. Watwood v. Haygood v. App. Piggly Wi. That collective bargaining agreement stated that "no leave of absence for injury shall be more than one year and that the employee will be terminated after being on leave for one year unless mutually agreed upon between the company and the union otherwise. such as the Plaintiff Hayden. They also found that there was absolutely no evidence that reasons given by Bruno's for termination of plaintiff were a pre-text for an otherwise impermissible termination.L. Cohh v. Civ. 1997). Avondale Mills Inc. Inc. Dunlop Tire Corp. _So. The Supreme Court stated that it refused to assume that the termination was retaliatory. App. 1997 W. Montgomery Coca-Cola. v..L..L. 2d_ MS 2951223 (Ala. [c] Concerns 3 . 680 So. 695 So. App. These recent defenses include: I) The employee has not been "terminated". v. policy. Motion Indus. I996W. 2d. there was a union contract between Bruno's and the United Food and Commercial Worker's Union as the bargaining unit for the employees. App. App. _So. 686 So.1.. 675 So. 2) The employee refuses alternate placement with his employer. App. WesFam Rest . 657 So. Gargis. App. White Consolidated Industries Inc. lnc. The federal judge entered summary judgment for Bruno's. 2d 304 (Ala. Ciy.. 630288 (Ala. 1996). but has been placed on the employer'S inactive employee list eligible for reactivation. Ciy. v. 5) The employee is physically unable to return to his pre-injury job without accommodations. Wehster. 680 So. Manpower Temporary Services. Hale. 1996). Decatur Country Cluh." Plaintiff also filed a grievance with a labor arbitrator who ruled in favor of Bruno's. 292094 (Ala. Ciy. Civ. 663 So.. Ward v. 2d 914 (Ala. 1996). 1996). v. Kent Corp.. whi Ie maintai ni ng a claim for retaliatory discharge. 678 So. Russell Corp. Inc. Several defenses also have been recently created which are tantamount to an affirmative defense for an employer to assert following an employee's establishment of a prima facie case. 1996). Weldon. 1996). 2d 297 (Ala. 1996 W. App. 1997). Chalus v. 364 (Ala.64 . 1996).£.United Tech. 2d 1312 (Ala. 339490 (Ala. 680 So. App. 3-7 -97). civ. Ciy. particularly Section 225-5-11. 716909 (Ala. App. Consolidated Stores. Barlow v. 2d 44 (Ala. Ciy. 2d_. 3) The employee was terminated pursuant to a neutrally applied no-fault absentee Smith v. Lambert v.'gly. Civ. filed an application for Social Security benefits attesting that he is not able to work. MS 1950836 (Ala. App. Beaulieu v: Kilgore. Golson v. Civ. 2d 278 (Ala. 1996). The union filed suit in federal court to set aside the arbitrator's decision arguing that the termination of Hayden violated Alabama workers' compensation laws.. v. 1997). 2d 288 (Ala.L.. Ciy. Pate. 4) The employee.It is also important to note that at all times pertinent to the lawsuit. 1996). 1996 W. App.
. See Ex parte Aratex Servs.2d 367 (Ala. Inc. 622 So. as well as a claim for retaliatory discharge should pay close attention not to release the retaliatory discharge claim while in the process of settling the workers' compensation claim. 3 . 1993)..65 .Attorneys representing the employee in a claim for workers' compensation benefits.
...----------... s-a ...---------- Topic 3 FORMS Workers' Compensation ---_ . r t..._--- . • .' .
(PLACE). 5. the Plaintiff had average weekly earnings of .. For the 52 weeks immediately preceding said accident. ). and suffered sudden and immediate pain in and upper back. all resulting in temporary total disability. COMPLAINT FOR WORKERS' COMPENSATION BENEFITS Comes now the Plaintiff in the above styled cause. the Plaintiff suffered cervical Myosotis. is of legal age and is a resident and citizen ~ County. (NAME). O. when she picked her left shoulder about the (DATE OF ACCIDENT). on the __ day of The Plaintiff. temporary partial disability and permanent partial disability. 19__ . On or her employment. O.. (NAME). is still having pain in her neck. As a proximate result of said accident. Defendant. . ).Forms . _~ 2. Its principal office is located at (P. _ ). In addition. was doing business in County. ~ __ COUNTY. Complaint for of (TOWN). the Plaintiff was employed by Defendant worker and under the superintendency at of 3. ADDRESS). CIVrr. and continues to suffer from muscle contractions and muscle spasms. Alabama. has headaches. ADDRESS). ACTION (NAME OF DEFENDANT)(Employer). post traumatic. The Defendant. making her total average weekly earnings equal _ 3 . ). the Defendant had contracted with Plaintiff to pay her group family health insurance coverage which weekly allowance is an additional . ALABAMA vs. shoulders and arms. On or about the (DATE OF ACCIDENT). residing at (P. and makes the following Workers' Compensation Benefits: I.IN THE CIRCUIT COURT OF Plaintiff. continues to experience a temporary partial disability which is expected to persist for an unknown period of time and which is expected to be followed by a permanent partial disability of her person. NO. and while working within the line and scope of the Plaintiff received injuries arising out of and in the course of her employment up a case of chickens from the freezer.I . Alabama. Subsequent to said injury. the Plaintiff was caused to obtain medical treatment. and was engaged as a cook or kitchen 4.
19__ . . 8.Forms . Her compensation checks were _____ per week and did not include anything for her fringe benefits. The Plaintiff and Defendant are subject to the Workers' Compensation of Alabama and a controversy has arisen thereunder. _~~_ COUNTY. Before me. a Notary Public in and for said State and County. ALABAMA 3 . The Defendant had timely and actual notice of the accident within the time specified the Workers' Compensation Act of the State of Alabama.6. the Plaintiff demands judgment against the Defendant for the compensation. whose name is signed to the foregoing Complaint and who is known to me. The last compensation check received by Plaintiff covered a period through . personally appeared (EMPLOYEE). (NAME) Employee Sworn to and subscribed before me this the __ day of . Notary Public (NAME) Attorney for Plaintiff (ADDRESS AND TELEPHONE PLAINTIFF'S ATTORNEY) NUMBER OF IN THE CIRCUIT COURT OF ~ COUNTY. the rehabilitation. While Defendant has paid some benefits for temporary total disability and some medical expenses. (NAME) Employee ST ATE OF ALABAMA. Laws of the State WHEREFORE. by 7. the Defendant has failed to pay her current medical expenses.2 . verily states that the matters and things alleged in the foregoing Complaint are true and correct. and medical expenses to which Plaintiff is entitled under the Workers' Compensation Laws of the State of Alabama. and who after being duly sworn by me.
if Defendant so chooses. (c) gross premiums paid for by the employer for life insurance coverage. ). State the amount of gross wages of the Plaintiff for each and every week for 52 weeks next preceding the accident on (DATE). ). When did you first realize or receive notice that the Plaintiff received an injury? (a) Describe the details of said notice. Defendant can furnish Plaintiffs of the payroll records for each and every week covering said period. (N AME OF DEFENDANT) Defendant. (b) State the name of the person or supervisor receiving said notice. Tn the alternative. vs. (Employee). (e) any other such fringe benefits or allowances paid for by the employer for the benefit of the Plaintiff. ).NAME OF PLAINTIFF) Plaintiff. attorney a copy 3.Forms . ). State the name.3 . . PLAINTIFF'S INTERROGATORIES TO THE DEFENDANT Comes now the Plaintiff. these interrogatories on behalf 2. title and address of the person answering of the Defendant Employer. pursuant to Rule 33 of the Alabama Rules of Civil Procedure. __ (Employer). 4. and requests that Defendant answer the following interrogatories within 30 days (45 days after service of complaint) from the service of a copy on the Defendant: I. Please state the gross cost to the Defendant for any benefits furnished to the Plaintiff as a part of Plaintiffs employment for the 52 weeks next preceding (DATE OF ACCIDENT) including but not limited to: (a) contributions made by Plaintiff to a tax qualified program orto a Section 125 cafeteria plan.. CIVIL ACTION NO. whether verbal or written. ). (b) gross premiums paid for by the employer for medical insurance or hospitalization insurance coverage. 3 . (d) gross premiums paid for by the employer for disability insurance coverage.
please state what information you will refer to and the purpose of referring to it. 10. State the amount of compensation .Forms . 9. state: (a) The name and address of doctor or other person giving such rating. Insurance carrier: . Do you understand (pursuant to the Alabama Rules of Civil Procedure) interrogatories are considered to be continuing interrogatories and that answers supplemented by you upon receipt of additional information after the interrogatories answered? (NAME) Attorney for Plaintiff (ADDRESS AND TELEPHONE ATTORNEY FOR PLAINTIFF) Please serve with the Summons and Complaint. State in substance the contents of said reports. If you intend to refer to or introduce any written or documentary evidence or photographs at the time of the trial. 8. (b) The type of compensation payment. telephone number and address of each person you expect to use as a witness in the trial of this case. and the names and addresses of the physicians giving same or in the alternative you may furnish copies of same. but do intend to refer to it at the hearing.5. such as temporary total disability or permanent partial disability. paid to the Plaintiff by the Defendant or Defendant's (a) The weekly rate of said compensation and the period covered by said payments. and (b)The percentage of disability. 7. 6. Do you have any knowledge or documentation of a disability given to the Plaintiff as a result of the injuries received in the alleged accident which is the subject matter of Plaintiffs Complaint? If so. If you have such information and do not intend to introduce it. please state specifically what evidence you intend to introduce and the purpose of introducing the evidence. that these are to be have been NUMBER OF 3 .4 . Please list all medical reports or medical records which are in the possession of Defendant. Please state briefly what you expect to be the testimony of each witness. Defendant's insurance carrier or Defendant's attorneys. Give the name.
Forms .IN THE CIRCUIT COURT OF COUNTY. PLAINTIFF'S MOTION TO PRODUCE Comes now the Plaintiff and pursuant to Rule 34 of the Alahama Rules (~f Civil Procedure requests that Defendant produce the following documents: I. Plaintiffs personnel records. 6. 4. Employer's First Report ofInjury. Any documentary or demonstrative this workers' compensation claim. __________ Records which show for the ~ the following: 52 All correspondence and reports from any rehabilitation weeks next preceding Plaintiffs Injury on (a) Gross wages.5 .. ). All medical reports and records concerning 3. the Plaintiff. and the costs thereof. ). ). . (NAME OF DEFENDANT) Defendant. Any written statement or recorded statement concerning the injury to Plaintiff. service or person concerning 2._ (Employer) ). (Employee). including the recorded statement taken from Plai nti ff by the insurance adjuster for the Defendant's insurance company. vs. ALABAMA (NAME OF PLAINTIFF) Plaintiff. CIVIL ACTION NO. (b) Any and all fringe benefits or allowances 5. evidence which you intend to introduce at the trial of (NAME. 7. ADDRESS. AND TELEPHONE OF PLAINTIFF'S ATTORNEY) NUMBER 3 . Plaintiff.
Attorney for Plaintiff 3 . ADDRESS). to his regular mailing address of (P. 19__ .Forms . postage prepaid and properly addressed. Attorney for Defendant. This the ~~~~ day of .CERTIFICATE OF SERVICE I hereby certify that I have this day mailed a copy of the foregoing Plaintiffs Motion to Produce to .6 . O.
(NAME OF DEFENDANT) Defendant. ).. PLAINTIFF'S REQUEST FOR ADMISSIONS OF FACTS TO DEFENDANT Comes now the Plaintiff and pursuant to Rule 36 of the Alabama Rules of Civil Procedure requests that Defendant. (NAME OF DEFENDANT).. ). That the Plaintiff. was the employer of the Plaintiff. within 30 days after service of this request. are subject to the Workers' Compensation Laws of the 3 . in the 7. (NAME OF DEFENDANT). Complaint had fringe benefits paid for by the Defendant for the 52 weeks next during the 52 weeks next That the Defendant has had timely and actual notice of the accident alleged within the time specified by the Workers' Compensation Act of Alabama. 3. That the Defendant or its insurance carrier has received notice from a treating physician selected by the Defendant or Defendant's insurance carrier of a permanent partial disability resulting from said accident. ). (NAME OF PLAINTlFF). That the Plaintiff and Defendant State of Alabama. 6. _ (Employer). That Plaintiff preceding her accident. Plaintiff. 5. ALABAMA vs. on or about the (DATE OF ACCIDENT). admit the truth of the following facts: 1.IN THE CIRCUIT COURT OF (NAME OF PLAINTTFF)(Employee). is properly named. COUNTY. received injuries arising out of and in the course of her employment while working for the Defendant. That Defendant. 4.Forms . That Defendant. while working within the line and scope of her employment. Civil Action No. . (NAME 2. (NAME OF DEFENDANT). ). on the (DATE OF ACCIDENT). 8. That the Plaintiff had average weekly earnings of at least preceding (DATE OF ACCIDENT). OF PLAINTIFF).7 . ).
13.Forms . That Defendant or Defendant's insurance carrier has accepted Plaintiffs claim as a compensable injury under the Workers' Compensation Laws of the State of Alabama and has paid temporary total compensation and has paid medical expenses. 19__ . orthopedic surgeon. (NAME. ADDRESS. 10.8 . That Defendant's insurance carrier paid Plaintiff temporary and 2 days commencing on (DATE).9. That the unpaid bills attached hereto for medical expenses incurred by the Plaintiff were reasonably and necessarily incurred by the Plaintiff in the treatment of her injury and the amounts thereof are reasonable. That the Defendant Bone. and terminating on (DATE). NUMBER of Facts be served with the Complaint for 3 . or its insurance carrier authorized the treatment of the Plaintiff by Dr. This the ~_ day of _~ . That the only issue before the Court in this action is the difference between the average weekly earnings of the Plaintiff at the time of the injury alleged in the Complaint and the average weekly earnings the Plaintiff is able to earn in her partially disabled condition (if any). 12. total disability for 26 weeks II. AND TELEPHONE OF PLAINTIFFS ATTORNEY) Plainti ff requests that the Request for Admissions Workers' Compensation Benefits.
while working within the line and scope of his employment with said employer. which is as follows: the Plaintiff contends that as a result of said accident and injury occurring on March 9. Griggers of Tuscaloosa. and at all times material thereto. on account of said accident and injury. (2) That the Plaintiff is a male over the age of nineteen (19) years. can read and understand the English language. VS. 1992. were. (4) That there is a genuine controversy between the Plaintiff and the Defendant. and resides in Pickens County.. Alabama. CIRCUIT JUDGE OFTUSCALOOSA COUNTY. subject to the Workers' Compensation laws of the State of Alabama..9 . 1992. ) ) CIVIL ACTION NO. (I) That the undersigned. and is represented in this cause by Attorney Gregory S. JR.) Defendant. Alabama. 3 .:CV-_ ) ~--------------~. LAKE. as of March 9. that the Defendant is a corporation represented in this cause by _ (3) That the Plaintiff was injured while employed by the Defendant on March 9.Forms . as amended. Defendant.) ) Plaintiff. and . Tuscaloosa County. would respectfully show unto Your Honor that they have agreed as follows: . ALABAMA ----------------~.IN THE CIRCUIT COURT OF TUSCALOOSA COUNTY. and that the Defendant is further obligated to pay to or on behalf of the Plaintiff any and all medical expenses heretofore incurred by him or to be incurred in the future. for medical and surgical treatment and attention. ) SETTLEMENT AGREEMENT AND PETITION TO HONORABLE ALABAMA: The undersigned GAY M. 1992. Specifically. he was rendered permanently and totally disabled and the Defendant is obligated to pay his workers' compensation benefits for such disability. Plaintiff. Plaintiff suffered an injury to his back.
(6) Plaintiff and Defendant has agreed upon. The parties agree that this matter is governed by the Alabama Workers' Compensation Act. on the other had. This settlement is based upon a vocational disability.6 weeks.The Defendant. Alabama Self-Insured Worker's Compensation Fund arc 3 .00.000. among other things. In order to resolve this controversy. for the purposes of proration of these benefits. or future vocational rehabilitation benefits. particularly hereinafter set forth. contends that the Plaintiffs disability is only temporary in nature and/or that he is not permanently and totally disabled as a result of this occurrence.33 per week. the parties agree that the Plaintiffs life expectancy. present. This settlement contains the entire agreement between the parties and that there are no agreements not set forth herein. the Defendant and the Defendant's Worker's Compensation insurance carrier. The settlement is based upon a compromise between the parties. agreed and acknowledged that this settlement and agreement is substantially in accordance with the Workers' Compensation laws of the State of Alabama and contains the entire agreement of the parties hereto. or past.199.199. Thus. and that no further Worker's Cornp. In order to facilitate settlement. agreed and acknowledged by and between the parties hereto that this Court has jurisdiction in this cause and all parties submit themselves to the jurisdiction of this Court. as such.6 weeks. the parties have agreed to a settlement of the same as more (5) The Defendant and Plaintiff have agreed upon. This amount shall be accepted by the Plaintiff as a full and final settlement of all claims he has or will have for compensation benefits. All parties understand that this is a full and final settlement of all rights under the Worker's Compensation Act. the above-referenced compromised settlement. Benefits. vocation rehabilitation or vocation rehabilitation expenses will be paid as a result of the aforesaid accident and injury. In order to facilitate this settlement. The parties agree that the Plaintiffs condition is permanent (by virtue of this agreement) and upon approval of the payment of those benefits over the life expectancy of the plaintiff. permanent partial or total. the Plaintiffs benefit as related to his life expectancy is reflected as $7. for 2. Plaintiff will still receive future medical benefits in accord with *25-5-77. a compromise settlement. Plaintiff hereby agrees that. the Plaintiff has agreed to accept. the Plaintiff has agreed to allow the Defendant to pay the above-referenced settlement in the amount of $20.Forms .6 weeks. or past. according to the mortality table as established by a legislative act of the State of Alabama. (7) It is further understood. is 2. for 2.10 . and the Defendant has agreed to pay. or future vocational rehabilitation benefits. In other words. It is further understood.33 per week. subject to Court approval. there is a genuine controversy as to the extent of the permanent disability sustained by the Plaintiff. upon approval of this settlement. however. All future medical benefits. permanent partial or total. subject to this Court's approval. present.199. (8) PIainti ff understands that thi s settlement is a compromise of all cl ai ms that he has or may have in the future. a total settlement equal to $7. whether in the nature of temporary partial or total. must be reasonable and necessary with respect to the injury made the basis of this claim. exclusive of past or future vocational rehabilitation benefits. This amount shall be accepted by the Plaintiff as a full and final settlement of all claims of the Plaintiff for compensation benefits. whether in the nature of temporary partial or total. Code of Alabama.
AL 35402 day of February. Alabama. PLAINTIFF to the GREGORY S.II .Forms . 1996 . P.O.hereby forever fully and finally released and discharged from all liability and obligation Plaintiff under the Workers' Compensation Act. Dated in Tuscaloosa. GRIGGERS Attorney for Plaintiff Attorney for Defendant 3 . P. except as set forth in this petition.c. Box 20263 Tuscaloosa. on this the ~_ ________________ APPROVED: McElvy & FORD.
Forms .12 . Subscribed and sworn before me on this the __ day of February.STA TE OF ALABAMA TUSCALOOSA COUNTY On this day personally appeared before me. surgical. deposed and stated on oath that he executed the foregoing instrument voluntarily and with full knowledge of the contents therein and further stated that the allegations contained therein are true and correct to the best of his knowledge. information and belief and his execution of the same is intended as a full settlement and compromise of any and all claims which he may have against the Defendant for any and all claims which he may have against the Defendant for any and all compensation benefits or vocational rehabilitation to which he may have been entitled and for any and all medical. 1996. Notary Public in and for The State of Alabama at Large My Commission Expires: 3 . and hospital or like expenses paid prior to this date on account of the injuries described herein. a Notary Public in and for the State of Alabama at Large. the employee whose name is subscribed above who is known to me who after being by me first duly sworn.
but had no conversations with Brown or the co-employee regarding the event.May I. the orthopedic surgeon performed surgery to repair the disc bulge. Brown's employer accommodated his restrictions and Brown remained employed at his preInjury wage for the next year. Brown and the co-employee resumed theirjob duties and they completed their regular work day that day. 1995 work related event. Brown lifted the box and threw it back at the co-worker. he felt a slight pull in his lower back. Brown continued to have back pain over the next several months. Brown told his supervisor during these months that his back was hurting. 1995. The orthopedic surgeon was unable to opine as to whether this hulge was due to degenerative disc disease or the hox throwing event. 1995. Brown and the co-worker had smoked marijuana in the co-worker's car during a lunch break. Brown notified his employer that he attributed his present back complaints to the May I. On May 1. Immediately prior to the box throwing event. 1995. a co-worker of Brown's threw a box weighing approximately 25 pounds at Brown. Pursuant to this finding. 1995 event. He was employed by ABC Corporation as a laborer from 1990 . Brown did not obtain authority from his employer to see either of these doctors.-So level. Brown was terminated. Brown slightly cut his finger during the course of his employment. Brown has incurred sporadic bouts of low hack pain since 1988. The orthopedic surgeon placed work restrictions on Brown of no heavy lifting. The drug testing revealed that Brown was under the influence of marijuana. On September I. On September 4. Brown went to his family physician who referred Brown to an orthopedic surgeon. The orthopedic surgeon performed an MRI which revealed degenerative disc disease and a disc bulge at the L. but did not attrihute the back pain to the May I. Brown's supervisor witnessed the box throwing event. 1996. Although Brown incurred no significant or permanent injury. . 1995. he was required to undergo drug testing pursuant to company policy. On September 2. This event was witnessed by another unidentified coworker. 1996. and ABC Corporation's policy allowing termination upon a positive drug test. Brown was assigned a five percent (5%) permanent physical impairment and a fifty percent (50%) vocational loss as a result of the surgery and work restrictions.WORKER'S COMPENSATION FACT SCENARIO John Brown is a 50 year old male. On May 1. As Brown lifted the box.
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