Compassionate Help for Injured Workers

If you've been injured on the job, you know how it feels to be second-guessed. You're wondering if you'll be treated fairly or not. My mission is to make sure you know your rights and responsibilities and that you obtain all the benefits the law allows. Call me at 1-888-694-0174 or 334-702-0000.

Saturday, November 20, 2010

The $220 Cap MUST Be Changed!

     There are two caps on workers' compensation benefits in Alabama.  There is a cap on temporary benefits and a cap on permanent benefits.  

     In July of each year, the Alabama Department of Industrial Relations announces the maximum and minimum rates of temporary total disability benefits.  For injuries occurring on and after July 1, 2010, the maximum workers’ compensation payable is $740.00 per week, and the minimum compensation will be $204 per week.  This means that if you were earning $1,110 per week and were injured on the job, you would receive 66 2/3 of $1,110 per week (or $740.00 per week) in tax free workers' compensation benefits during the "healing period" while you are receiving medical treatment.

  Once you are released from your medical treatment, get ready for the shaft! 

         If you are injured on the job and end up permanently disabled but not permanently and totally disabled (that is, if you are one to 99 percent disabled), it does not matter how much money you earned on the date of your injury, the most you will get from workers' compensation is $220.00 per week!

     Ala. Code § 25-5-68(a) provides that “the maximum compensation payable for permanent partial disability shall be no more than the lesser of $220.00 per week or 100 percent of the average weekly wage.” The “$220 cap” on permanent partial disability benefits became effective January 9, 1985.  IT HAS NOT CHANGED SINCE 1985!  1985 was the year the late Ronald W. Reagan was inaugurated for a second term as President of the United States. It was also the year that Mikhail Gorbachev become the Soviet Union’s leader, that the sunken Titanic was located; the year the Nintendo entered the home video game market; the year that 20 percent of U.S. homeowners had VCRs in their homes; the year that Microsoft shipped the Windows 1.0 operating system; and that the year the typical modem speed was 2400 bits/second.  In 1985, minimum wage was $3.35 an hour (I remember earning that wage as I worked my way through college!)

     Yet, the cap on permanent partial disability benefits that was fixed in the law in 1985 at $220.00 per week still applies today. It would have required $439 this year to have the same purchasing power as $220 did in 1985. Accordingly, the $220 cap is at least 50 percent too low and it is getting lower each year. 

   Not only that, but at the current rate of the annual increase in temporary benefits, the minimum compensation rate of temporary total disability benefits will exceed the maximum compensation payable for permanent partial disability in just a few years. Even the rate at which injured workers are reimbursed for mileage costs a they drive to and from medical providers has increased from 25 cents per mile in 1992 to 50 cents per mile today.

     This oddity in the law produces strange results in some cases. For example, even a worker earning minimum wage would be penalized by the $220 cap ($7.25 per hours at 40 hours = $290.00). In a time in which our State is attracting more and more higher paying jobs, this cap is even more unfair than it has ever been. 
     What I can do?  I'm glad you asked.  Contact your legislators and DEMAND they change the law!   The $220 cap needs to be indexed and increased so that people who find themselves in the unenviable position of being injured on the  job don't have to file bankruptcy.   The $220 cap can cause a worker who suffers a severe injury on the job to be forced to file bankruptcy.

     Contact your Senator and Representative by calling the Senate (334) 242-7800 or the House (334) 242-7600 or by clicking here:
Call, email,  write, fax or make a personal visit and request their help in changing this unbelievably unfair aspect of Alabama law.


A pain in the …. ARE YOU KIDDING ME?! By Alabama Workers’ Compensation Attorney Tracy W. Cary

     If you’ve read my blog entry regarding the Top Ten list of things that need to be changed about the Alabama Workers’ Compensation Act, you’ve seen the problem with “scheduled injuries.” Scheduled injuries are listed in Ala. Code § 25-5-57(a)(3). “The schedule” contains a list of various body parts that can be injured on the job with a corresponding number of weeks compensation a worker can receive for injuries to those body parts. Practically every part of the body that could be injured on the job is found in the schedule with the exception of injuries to the head, neck, shoulders, back, hips and psychological injuries.
To illustrate how limited the schedule is, I’ll list few examples:
For the loss of a fourth finger, commonly called the little finger, 16 weeks.
For the loss of a great toe, 32 weeks.
For the loss of an eye, 124 weeks.
For the loss of an arm, 222 weeks.

In other words, if you have an accident at work and one of these body parts is chopped off, you’ll receive no more than the number of weeks compensation listed in the schedule.

Why is this important?

It’s important because activists on the court masquerading as conservatives keep changing the law. A little background is helpful. The Alabama Workers’ Compensation Act is extremely limited it the benefits it provides to injured workers. When an injured worker has a permanent injury, the permanent injury can be expressed as an impairment to the specific body part or alternatively to the whole person. The monetary value of expressing permanent injury using either method can be calculated by using a formula found in the law. As opposed to the limited number of weeks set out in the few examples listed above, workers with permanent injuries to the whole body generally receive compensation for 300 weeks instead of 16, 32, 124 or 222, etc. For many years, workers’ compensation practitioners would do the math using the scheduled injury and compare it to the compensation due the worker for a whole person injury and the case could be concluded at the higher (but still very limited) amount.
     The activist Supreme Court changed all this in 2002 with its decision in Ex parte Drummond Co., 837 So. 2d 831 (Ala. 2002). In the Drummond decision, the Court decided it would place a renewed emphasis on the schedule such that when a worker injured a body part found in the list of body parts listed in the schedule, the worker would be paid the number of weeks compensation found in the schedule, and no more (with very limited exceptions which are discussed below).

So what?  Why does this matter?
     It matters because the court concluded that if a worker with a limited education who has worked his entire adult life as a mechanic by using his hands should be unfortunate enough to have an accident and lose the ability to ever work again with his hands in a repetitive manner, he will be limited to 400 weeks compensation even though he is for all practical purposes permanently and total disabled. You can read about this flawed decision in Ala. Workmen’s Comp. Self-Insurers Guar. Ass’n v. Wilson, 993 So. 2d 451 (Ala. Civ. App. 2006).

Drummond Exceptions
     In the Drummond decision, the Court created an exception to allow an injured worker to show that he or she may not be limited to the number of weeks compensation found in the schedule. The Court said that if the injury to the scheduled body part spread to other parts of the body and interfered with their efficiency, OR if the injury resulted in debilitating pain, the schedule was not exclusive. The Court even wrote in Drummond, “We recognize that pain can be totally, or virtually totally, debilitating.” I have represented a great many injured workers who suffered debilitating pain as a result of their injury at work.

     In what can only be fairly characterized as a moving target, the Court keeps changing the definition to make it harder for injured workers to recover. In a concurring opinion that is so draconian that it’s hard to fathom, a current member of the Alabama Court of Civil Appeals wants the Supreme Court to declare that the pain exception does not exist! (In other words, legislate from the bench, change the law, be an activist).

If you think I’m making it up, check this out:
Norandal U.S.A., Inc. v. Graben, 2010 Ala. Civ. App. LEXIS 71 (Ala. Civ. App. Mar. 12, 2010)
Judge Terry Moore wrote the following:
In my opinion, using severe pain as a basis for deviating from the schedule totally undermines the legislative purpose of the schedule. By enacting a schedule, the legislature plainly intended to eliminate litigation regarding the benefits due a worker who sustains an injury to a scheduled member. The legislature envisioned that the benefits for injuries to a knee, for example, would be easily calculable and payable by reference solely to the schedule and without resort to administration by the courts. That purpose is thwarted when a totally subjective variable such as pain enters the calculus. That criteria, being almost impossible to demonstrate by objective proof, renders the schedule totally [*26] inconclusive and demands administration of the claim by the court system to determine if the nature, duration, and intensity of the pain sufficiently justifies a departure from the schedule. In this case alone, for example, the trial court has twice awarded nonscheduled benefits based on the employee’s complaints of pain in the knee, only to twice have this court reverse that decision. That entire exercise with its associated costs and delays would have been avoided if the schedule remedy was completely respected and severe debilitating pain was not considered an exception to its exclusivity.

      I urge the supreme court to revisit the “pain exception” to the schedule and to declare that it does not exist.
Until it does, however, as a member of this court, I will continue to acknowledge that, in the very limited circumstances set out in the main opinion, totally or virtually totally debilitating pain isolated in a scheduled member is sufficient to warrant an award of nonscheduled benefits.

What to do?

I have a few suggestions. First, contact your legislators and make them aware of this unbelievable situation.

Second, I recommend that whether you’re a Democrat or a Republican voter, consider whether you should vote for anyone who concurred with this activist way of legislating from the bench. It’s simply not the role of judges to change the law to suit their own biases.

Finally, if you unfortunate enough to have a work-related injury that resulted in debilitating pain, make sure you hire a competent workers’ compensation lawyer to help you traverse the maze that exists in our law. Because our courts keep changing the definitions as they go, you’ll need to be careful that you don’t lose valuable rights.

News About the AMA Guides to the Evaluation of Permanent Impairment by Tracy W. Cary

     Northeastern University Law School Dean Emily A. Spieler recently testified before Congress (Subcommittee on Workforce Protections Committee on Education and Labor) concerning the American Medical Association’s (AMA) Guides to Permanent Impairment.

     Doctors in workers’ compensation cases often use the AMA Guides to determine whether an injured worker has an impairment rating after a job-related accident. As Dean Spieler noted, The AMA Guides have been in effect since 1971 and are now in widespread use. Some states even require workers’ compensation programs to use the latest edition of the Guides. The Guides were originally designed to be used by physicians in making a scientific assessment of a worker’s level of impairment—or loss of function—due to a work-related injury. The determination of whether a worker is permanently disabled and entitled to workers compensation is based upon his or her impairment rating, which is then applied to the specific case of a given worker. For example, a worker who loses a hand may not suffer permanent disability if he or she is a teacher, but that same worker would be permanently disabled if he or she works in construction. In 2007, the AMA published the 6th edition of the Guides, and witnesses today will describe how this new edition has dramatically reduced impairment ratings for many types of conditions, without apparent medical evidence, and transparency. The 6th edition has become so controversial that many states, including Iowa, Kentucky and Vermont have decided not to adopt them. It also appears that the 6th edition was developed in near secrecy, without the transparency and consensus which should necessarily accompany the development of standards that will have widespread use by state governments. In addition, it appears that the physicians who developed this latest edition may have ties to insurance companies, and are making a profit training doctors on the use of the 6th edition, which is complicated and very difficult to apply. The National Technology Transfer Advancement Act of 1996 sets forth minimum criteria for the development of voluntary consensus standards: openness; balance of interests; due process protections; and consensus. The process used for developing the 6th edition appears to significantly deviate from these standards and is a focus of testimony before us today. Workers who are wholly dependent on this ‘grand bargain’ when they are injured on the job, are the ones paying the price. The subcommittee invited the AMA to testify today, but unfortunately, it declined.

     It is particularly troubling that doctors with ties to insurance companies would create a book in secret that provides for dramatically reduced impairment ratings for many types of conditions.  I am pleased that Dean Spieler is making Congress aware of this situation.  

Using PAIN to get outside the schedule by Tracy W. Cary

     Based on recent decisions from the Alabama Supreme Court and Alabama Court of Civil Appeals, how do you use considerations of an injured worker’s pain to get beyond the severe restrictions of the table of scheduled members?

     In order to get beyond the schedule, focus on proving that the employee’s pain within his scheduled member was virtually, or totally physically disabling. Look for evidence that you suffer from abnormal, constant, and severe pain, even when not using the affected member. Most importantly though, recent court decisions sugest that “a trial court must consider all legal evidence bearing on the existence, duration, intensity, and disabling effect of the pain in the scheduled member, including its own observations. It requires competent proof that whatever pain the worker experienced, completely, or almost completely, physically debilitated the worker. So, focus on the existence of pain, the duration of pain, the intensity of the pain and how the pain effects you. My thoughts are that the injured worker’s testimony is critical to establish this, but also, have other lay witnesses (spouse, close friend, co-worker) and expert witnesses (medical doctor, therapist, pharmacist, vocational expert with focus on pain) would be helpful in establishing existence; (the pain is there and it is real), duration; (for example, the pain reaches an 8 out of 10 three days per week and I have to take Lortab to help control the pain) intensity; (the pain is a shooting and burning pain that reaches 8 out of 10); and the disabling effect (when the pain reaches its highest levels, I cannot function.

Tracy W. Cary –

Beware of “Utilization Review!” But, Don’t Let it Make You Give Up! By Tracy W. Cary

     Liberty Mutual and other insurance companies that provide workers’ compensation insurance coverage are taking a new approach in their attempt to make injured workers get frustrated and give up: it’s called “utilization review.” Don’t Fall For It!

    What they are saying is this: “We will pick the doctor we want to treat you. But if the doctor we pick to treat you wants to do something to treat you that we don’t want to pay for, we’ll get another doctor to overrule the doctor we told you to treat with.”

     Here’s how their scheme works: let’s say you are authorized to treat with Dr. Smith for your work-related injury. Dr. Smith thinks you need an MRI or physical therapy or an epidural injection or whatever it is. The Liberty Mutuals of the world (there are lots of them by various names) will hire a “utilization review” in which another doctor will be asked if Dr. Smith’s recommendation is “reasonably necessary.” Picture the “reviewing” doctor is out in Las Vegas in his pajamas. It’s probably not too far from the truth. The reviewing doctor will review some records, but many times not all the records. The reviewing doctor might try to call Dr. Smith but not necessarily. The reviewing doctor will never see you the injured worker. Then not surprisingly Dr. Pajamas will reach the conclusion that Dr. Smith’s recommendation is not reasonably necessary and the treatment will be denied by Liberty Mutual or one of the other usual suspects.

     A recent case I heard about involved the recommendation of a board-certified neurosurgeon overruled by a utilization review conducted by a dentist!

     So what do you do? Do you give up? That’s what Liberty Mutual and the others are hoping you’ll do. DON’T GIVE THEM THE SATISFACTION! The law is on your side! I handled a case that established the precedent for you. It’s called Ex parte Southeast Alabama Medical Center, and it can be viewed here:

     The gist of it is this: You can ignore the utilization review. You aren’t bound by it! You can have a court order Liberty Mutual or whoever it is to provide you with the treatment that the workers’ compensation doctor says you need.

     As a lawyer who represents injured people for a living, I see this tactic over and over. It takes a little work and time, but I win these fights for my clients because the law is on your side in this regard.
Just remember: Don’t give up! If you need treatment, you can prevail.

Tracy W. Cary
Telephone: 1-800-638-3665