Alabama Workers' Compensation Law Blog

SO THE INSURANCE COMPANY WANTS TO SEND YOU FOR AN INDEPENDENT MEDICAL EXAMINATION

2012-01-27T13:04:00.000-08:00

Lawyer Who Failed Courthouse Breath Test When She Arrived for Client Hearing Now Faces Criminal Case

2012-01-27T04:46:00.000-08:00

Lawyer Who Failed Courthouse Breath Test When She Arrived for Client Hearing Now Faces Criminal Case

Posted Jan 24, 2012 3:08 PM CST in ABAJournal.com
By Martha Neil

A California lawyer has been criminally charged after allegedly appearing at court to represent clients at hearings in a drunken state.

Michelle Winspur is accusing of blowing twice the legal limit on Oct. 7, when she was given a breath-alcohol test as she entered Kings County Superior Court in Hanford, reports the Visalia Times-Delta.

She was tested because a court clerk said she sounded drunk when she called to say she was going to be late for trial.

Winspur, now 45, also failed a sobriety test she was given on Dec. 8 as she left court after a client hearing, according to the Times-Delta and the Hanford Sentinel.

She was criminally charged in Kings County both with appearing in court under the influence and with drunken driving because she was seen driving to court prior to the Oct. 7 breath test, Larry Crouch told the Times-Delta. He serves as chief trial deputy for the Kings County district attorney.

Already facing an attorney discipline case for allegedly being drunk during a 2010 trial in Monterrey County, Winspur had her law license suspended earlier this month.

A defense lawyer pleaded not guilty on her behalf to the criminal charges last week, but Winspur herself did not appear because she apparently is in rehab.

Alabama Senator Proposed Harsh Changes to the Workers' Compensation Law

2011-12-19T08:47:00.000-08:00

Senator Arthur Orr represents District 3 which consists of Limestone, Madison, Morgan Counties in northern Alabama. Sen. Orr has indicated he will be introducing a bill in the next legislative session to make changes to Alabama’s workers’ compensation law. He says the changes will help in job creation. The truth is, they will help insurance companies keep more of the premiums they collect.

These changes will apply to every Alabama worker who is unfortunate enough to be injured on the job.

Not surprisingly, the changes will only benefit employers and insurance companies. Who will pay for these changes? The injured workers.

Sen. Orr’s proposed bill would make it illegal for a judge to consider the injured’s worker’s pain in most cases. If you get hurt on the job and have severe pain that your doctors believe to be credible, too bad - - the judge cannot consider your pain.

If a worker’s job-related injury is such that he is permanently and totally disabled, current law allows him to receive workers’ compensation benefits for the rest of his life. Sen. Orr’s proposed bill would let the insurance company off the hook as soon as the worker reaches age 65. This proposed change will benefit insurance companies at a time when most workers are living longer lives and at a time when you have to turn 67 to collect Social Security benefits.

What else is Sen. Orr wanting to give to the insurance companies? Under current law, probably the most generous aspect of the law is that medical treatment remains open for life after a job-related accident. Sen. Orr wants to change that so that if an injured worker goes without medical treatment for a certain time period, the right to receive medical is over. The insurance companies win; the injured worker loses.

Finally, what happens if you go to trial in your workers’ compensation case and win? Sen. Orr wants to give the appeals courts the right to re-weigh the evidence and decide whether to over turn the trial judge’s decision.

What does Sen. Orr give back to injured workers in exchange for helping the insurance companies? He gives them a $20.00 per week raise and increases the amount of permanent partial disability benefits from $220.00 per week to $240.00 per week. Put another way, at a time when minimum wage is $7.25 per hour or $290.00 per week, the rate paid to injured workers will increase from $5.50 an hour to $6.00 per hour. If a worker suffers a severe injury on the job and is 99 percent disabled or less, he is capped at $220.00 per week under Alabama’s unfair law but Sen. Orr will “allow” injured workers another $20.00.

What can you do? Call Senator Orr and tell him injured workers deserve better. Contact him at (256) 355-3285 or (334) 242-7891.

What is Avvo?

2011-12-19T03:11:00.000-08:00

First - check my Avvo profile: http://www.avvo.com/attorneys/36303-al-tracy-cary-661603.html?ref=header

The Avvo Rating is our effort to evaluate a lawyer's background, based on the information we know about the lawyer. The rating is calculated using a mathematical model that considers the information shown in a lawyer's profile, including a lawyer's years in practice, disciplinary history, professional achievements and industry recognition - all factors that, in our opinion, are relevant to assessing a lawyer's qualifications.

For some lawyers, the only information we have been able to collect is the publicly available information from state bar associations or other organizations that license lawyers. If that is all we have, then we display an Avvo Rating for the lawyer of either "Attention" or "No Concern." We display the "Attention" rating if there is information in the licensing records that, in our opinion, you should pay attention to, such as a disciplinary action against a lawyer without offsetting positive information. Otherwise, we display the "No Concern" rating.

We periodically collect background data from multiple sources, including state bar associations, court records, lawyer websites, and information that lawyers choose to provide to Avvo. Please keep in mind that we are not able to collect every piece of information about every lawyer's background. Information that we do not have could very well change the lawyer's Avvo Rating. So whether you see the numerical or the basic Avvo Rating, you should do further research regarding the lawyer to collect all relevant information regarding the lawyer's background.

Here's why the Avvo Rating can help you find the right lawyer:

It's unbiased. Because ratings are calculated using a mathematical model, all lawyers are rated by the same standards.

There's no favoritism. Here at Avvo, all lawyers are treated equally. They can't pay to change their ratings, and we don't play favorites to lawyers we know.

It's developed by legal experts for non-experts. The model used to calculate the Avvo Rating was developed with input from hundreds of attorneys, thousands of consumers, and legal experts.

It's easy to understand. With simple ratings from 1 to 10 or "Attention" and "No Concern," we hope to make clearer the murky process of understanding lawyers' backgrounds.

ABOUT ME - Alabama Workers' Compensation Attorney Tracy W. Cary

2011-08-30T04:48:00.000-07:00

Since 1994, Tracy W. Cary has worked exclusively for people who were injured or killed by companies or people who cause injury or death by violating safety rules that are designed to protect the public and make our lives safer. Tracy is passionately devoted to working for injured victims and he works hard to prevent insurance companies from unreasonably delaying or denying legitimate claims and to make them compensate injured victims fairly.

Tracy has been involved in obtaining numerous jury verdicts for his clients. His firm obtained one of the largest verdicts in Alabama history, a record $21 million jury verdict achieved in 2011. In addition, Tracy has represented hundreds of injured workers with workers’ compensation claims and tried numerous cases all over the State. Whether handling a large case or a very small case, Tracy takes his mission very seriously and he is available for consultation toll free at 1-800-638-3665. No case is too large. No case is too small. Every case is important.

Tracy is licensed to practice law in Alabama, Florida, Georgia, Tennessee and the District of Columbia. In addition, he has handled cases in Arizona, Kansas and Connecticut. Tracy practices in state and federal courts handling a variety of accident and injury claims including wrongful death cases, car wrecks, trucking accidents, motorcycle wrecks, workers’ compensation claims, dog bite incidents, consumer fraud, Social Security disability claims, insurance bad faith claims and product defect claims.

Tracy co-founded the law firm of Morris, Cary, Andrews, Talmadge & Driggers in 1999. Each of the five lawyers in our law firm have similar interests. We are dedicated to our faith, our families and our firm.

Although Tracy focuses on all types of injury and accident claims, he also has chosen to focus on workers’ compensation claims. Many times injured workers are among the most vulnerable of our society. Tracy has authored and published a consumer-rights book – The Injured Worker’s Survival Guide -The Five Mistakes That Can Wreck Your Workers’ Compensation Claim - and has also authored many articles and reports to help accident victims. He has created a website – www.bamacomp.com and blog, http://bamacompcom.blogspot.com exclusively devoted to job-related accidents. The firm website also contains valuable information, http://mcatlaw.com

Tracy earned his law degree in 1992 from the University of Alabama School of Law. He received his Bachelor’s Degree from the University of Florida College of Journalism and Communications in 1985. Tracy served as a field artillery and JAG officer in the United States Army and the Alabama Army National Guard.

Tracy is married with four children. He is active in his church, Covenant United Methodist Church, and in his community. Tracy has been peer rated by other lawyers as having very high ethics rating, which denotes adherence to professional standards of conduct and ethics, reliability, diligence and other criteria relevant to the discharge of professional responsibilities. In legal abilities, his peers rated him very high. http://mcatlaw.com, http://bamacomp.com

New York Times calls Alabama's Immigrant Law the Cruelest in the Nation

2011-08-29T10:45:00.000-07:00

The New York Times

The Nation’s Cruelest Immigration Law

The Alabama Legislature opened its session on March 1 on a note of humility and compassion. In the Senate, a Christian pastor asked God to grant members “wisdom and discernment” to do what is right. “Not what’s right in their own eyes,” he said, “but what’s right according to your word.” Soon after, both houses passed, and the governor signed, the country’s cruelest, most unforgiving immigration law.

The law, which takes effect Sept. 1, is so inhumane that four Alabama church leaders — an Episcopal bishop, a Methodist bishop and a Roman Catholic archbishop and bishop — have suedto block it, saying it criminalizes acts of Christian compassion. It is a sweeping attempt to terrorize undocumented immigrants in every aspect of their lives, and to make potential criminals of anyone who may work or live with them or show them kindness.

It effectively makes it a crime to be an undocumented immigrant in Alabama, by criminalizing working, renting a home and failing to comply with federal registration laws that are largely obsolete. It nullifies any contracts when one party is an undocumented immigrant. It requires the police to check the papers of people they suspect to be here illegally.

The new regime does not spare American citizens. Businesses that knowingly employ illegal immigrants will lose their licenses. Public school officials will be required to determine students’ immigration status and report back to the state. Anyone knowingly “concealing, harboring or shielding” an illegal immigrant could be charged with a crime, say for renting someone an apartment or driving her to church or the doctor.

The American Civil Liberties Union and the Justice Department have also sued, calling the law an unconstitutional intrusion on the federal government’s authority to write and enforce immigration laws. The A.C.L.U. warns that the law would trample people’s fundamental rights to speak and travel freely, effectively deny children the chance to go to school and expose people to harassment and racial profiling.

These arguments have been made before, in opposition to similar, if less sweeping, laws passed in Arizona, Utah, Indiana and Georgia. What is remarkable in Alabama is the separate lawsuit by the four church leaders, who say the law violates their religious freedoms to perform acts of charity without regard to the immigration status of those they minister to or help.

“The law,” Archbishop Thomas Rodi of Mobile said in The Times, “attacks our core understanding of what it means to be a church.”

You’d think that any state would think twice before embracing a law that so vividly brings to mind the Fugitive Slave Act, the brutal legal and law-enforcement apparatus of the Jim Crow era, and the civil-rights struggle led by the Rev. Dr. Martin Luther King Jr. But waves of anti-immigrant hostility have made many in this country forget who and what we are.

Congress was once on the brink of an ambitious bipartisan reform that would have enabled millions of immigrants stranded by the failed immigration system to get right with the law. This sensible policy has been abandoned. We hope the church leaders can waken their fellow Alabamans to the moral damage done when forgiveness and justice are so ruthlessly denied. We hope Washington and the rest of the country will also listen.

Two Car Crash in Ashford

2011-08-29T06:26:00.001-07:00

http://www.rickeystokesnews.com/article.php/two-car-crash-in-ashford-21314

It's a Gift: Evasive Witnesses Are Doing You A Favor If You Know To Take Advantage

2011-08-29T06:25:00.000-07:00

It's a Gift: Evasive Witnesses Are Doing You A Favor If You Know To Take Advantage
By Jim McElhaney as published in the ABA Journal, August 2011.

Law enforcement agencies not prepared to enforce new immigration law

2011-08-28T07:03:00.001-07:00

Law enforcement agencies not prepared to enforce new immigration law

I Can’t Lie

2011-08-28T07:01:00.000-07:00

Many will remember “Liar Liar” the 1997 comedy starring Jim Carrey.

In the movie, a lawyer lies to win his cases, at the expense of his family, career and self. Eventually he learns that honesty is the best policy. As the Proverbs tell us, “The Lord hates dishonest scales but accurate weights are His delight.” Prov. 11:1.

Perhaps a worker is afraid that if he tells the truth on his job application about a previous injury, he won’t hired. So he figure a little while lie won’t hurt. But will it?

What happens to an injured worker who lies on a job application and is later injured on the job?

Cascaden v. Winn-Dixie Montgomery, LLC, 2011 Ala. Civ. App. LEXIS 204 (Ala. Civ. App. Aug. 5, 2011) gives us the answer.

Alabama Code § 25-5-51 addresses misrepresentations in job applications:

“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 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 reinjured in an accident arising out of and in the course of his or her employment.

At the time an employer makes an unconditional offer of employment or removes conditions previously placed on a conditional offer of employment, the employer shall provide the employee with the following written warning in bold type print, "Misrepresentations as to preexisting physical or mental conditions may void your workers' compensation benefits." If the employer defends on the ground that the injury arose in any or all of the last above stated ways, the burden of proof shall be on the employer to establish the defense.”

To understand what happened in the Cascaden case, first thing about how Alabama courts used to interpret the law. In the past, Alabama courts held that a misrepresentation of a preexisting medical problem only mattered if a worker injured that same body part again. For example, if a worker didn’t admit a previous back injury on a job application but later hurt his shoulder at work, the misrepresentation wouldn’t necessarily prevent the worker from receiving compensation for the shoulder injury. One of the reasons for the past decisions is that the employer wasn’t relying on the misrepresentation of the worker’s back problems to decide whether to hire the employee.

The recent Cascaden decision changes all that.

It is NO LONGER REQUIRED for an employer to prove it relied on the misrepresentation.

The Court of Civil Appeals held that it is not required that employers rely on the misrepresentation. Instead, for an employer to raise the defense under § 25-5-51, the employer must prove: that (1) in the course of the worker entering into his employment relationship with the employer, (2) the employer provided the worker with the written warning set forth in § 25-5-51, (3) the worker knowingly and falsely misrepresented his physical or mental condition, (4) the worker's misrepresentation was made in writing, and (5) the worker's condition was aggravated or reinjured in an accident arising out of and in the course of his employment.

Written Warning Required

Avoid this problem in advance by telling the truth!

Tracy W. Cary currently services as chair of the Alabama Association for Justice Workers’ Compensation Section. He earned his B.S. from the University of Florida and his J.D. from the University of Alabama. He is licensed to practice law in Alabama, Florida, Georgia, Tennessee and the District of Columbia. He practices with the Dothan firm of Morris, Cary, Andrews, Talmadge & Driggers, LLC. He is past chair of the Alabama State Bar Workers’ Compensation and has an extensive workers’ compensation practice throughout dozens of Alabama counties. Email: tcary@mcatlaw.com.

Injured Workers Hammered by Harsh Application of the Schedule

2011-08-28T06:18:00.000-07:00

By Tracy W. Cary
Alabama Workers' Compensation Attorney

I have written for years about how harsh Alabama law can be when an employee gets hurt on the job and the injury is to a "scheduled" part of the body. Scheduled injuries are listed at Alabama Code § 25-5-57(a)(3). See, Table of Scheduled Members. Essentially the only parts of the body not listed in the schedule are the head, neck, back, hips and shoulders. According to recent decisions of the Alabama appeals courts (Alabama Court of Civil Appeals and Alabama Supreme Court), if an worker injures a scheduled part of the body, the worker generally cannot make a claim for vocational disability, even if the real effect of the injury would cause the employee to be permanently totally disabled. For example, think about a mechanic who lost the use of both his hands in an accident at work. The schedule says that the worker will be paid compensation up to 400 weeks, even though his life expectancy might be 2,000 weeks.

Alabama's appellate courts have carved out at least three exceptions to getting around the schedule: pain, psychological injury and extension of the injury to other parts of the body. However, the courts continue to whittle away at these exceptions, making them harder to apply. In a decision released in August 2011, the Alabama Court of Civil Appeals did just that.

With the release of G.UB.MK Constrs. v. Davis, 2011 Ala. Civ. App. LEXIS 220 (Ala. Civ. App. Aug. 19, 2011), the Court of Appeals reversed the trial court's finding of permanent and total disability. The trial court awarded an employee PTD benefits outside the compensation schedule set out in Ala. Code § 25-5-57(a)(3), based on the debilitating pain he was suffering from a work-related injury to his left hand. The employer appealed. As the employee did not testify that the pain in his left hand had virtually totally debilitated him or that pain from the left hand prevented him from fully using the uninjured parts of his body, including his dominant right hand, the trial court erred in awarding him PTD benefits under § 25-5-57(a)(4) instead of scheduled benefits under § 25-5-57(a)(3).

However, in a recent Alabama Supreme Court decision, the State's high court upheld a decision finding a worker 100 % disabled as a result of a scheduled foot injury. Ex parte Hayes, 2011 Ala. LEXIS 35 (Ala. Mar. 18, 2011). There, an injured worker was found to permanently totally disabled because the employee's right foot extended to and interfered with the effective functioning of the remainder of his body in a manner that satisfied the Drummond rule.

Do you have a injury to a "scheduled" body part? Consult with a lawyer who specializes in workers' compensation law before deciding what to do.

Thinking about what to do?

Tracy W. Cary currently services as chair of the Alabama Association for Justice Workers’ Compensation section and has also served as chair of the Alabama State Bar Workers' Compensation section. He earned his B.S. from the University of Florida and his J.D. from the University of Alabama. He is licensed to practice law in Alabama, Florida, Georgia, Tennessee and the District of Columbia. He practices with the Dothan firm of Morris, Cary, Andrews, Talmadge & Driggers, LLC. He is past chair of the Alabama State Bar Workers’ Compensation and has an extensive workers’ compensation practice throughout dozens of Alabama counties. Email: tcary@mcatlaw.com.

Motion seeks to delay retired judge's trial

2011-02-20T07:38:00.000-08:00

By LANCE GRIFFIN published in The Dothan Eagle
Published: February 18, 2011

A retired local judge accused of numerous ethical violations while serving in Houston County is asking to have his trial date delayed.

Former Houston County District Judge John Steensland, Jr., was charged with 60 violations of the Alabama Canon of Judicial Ethics by the Judicial Inquiry Commission in December of last year. His trial date in front of the Alabama Court of the Judiciary is scheduled for March 2 in Montgomery.

A motion filed by Steensland’s son on behalf of Steensland states that numerous other complaints against Steensland have been filed since the original complaints were made public, are currently under review by the Judicial Inquiry Commission and could trigger more official charges. Therefore, Steensland argues the trial should be delayed until all matters have been resolved and all charges can be faced in one proceeding.

“The Judicial Inquiry Commission staff and executive director have engaged in a course of conduct encouraging said individuals to file new complaints in an effort to further humiliate, intimidate and prejudice Steensland,” attorney John Steensland III wrote in the motion to the Alabama Court of the Judiciary filed Feb. 17. “The desired effect of JIC’s conduct relating to the new complaints is simple. The outcome of the trial in the present matter notwithstanding, Steensland will be forced to endure the entire process again.”

“Steensland is entitled to have all charges, complaints, documents, materials and witnesses against him combined and consolidated so that all alleged mIsconduct can be adjudicated in the same proceeding,” Steensland wrote.

The court has until Tuesday, Feb. 22, to rule on Steensland’s motion.

US Senate Impeaches Federal Judge

2010-12-12T08:42:00.000-08:00

Senate Removes Louisiana Judge

By JENNIFER STEINHAUER

The Senate on Wednesday found Judge G. Thomas Porteous Jr. of Federal District Court in Louisiana guilty on four articles of impeachment, the first time the Senate has removed a federal judge from the bench in more than two decades.

Judge Porteous was impeached by the House in March on four articles stemming from charges that he received cash and favors from lawyers who had dealings in his court, used a false name to elude creditors and lied to theFederal Bureau of Investigation during his confirmation. The behavior amounted to a “pattern of conduct incompatible with the trust and confidence placed in him,” according to the articles against him.

Mr. Porteous, the eighth federal judge to be convicted and removed from office through impeachment in the history of the Senate, got an early indication that things would not go his way when all 96 Senators present voted “guilty” on the first article against him. One of his lawyers then reached over to touch his arm, as if in consolation.

Mr. Porteous, 64, was appointed to the federal bench by President Bill Clinton in 1994 and has been suspended with pay since 2008; as part of his removal, which begins immediately, he will not receive his federal pension.

The $220 Cap MUST Be Changed!

2010-11-20T17:32:00.000-08:00

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: http://www.legislature.state.al.us/misc/zipsearch.html

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

2010-11-20T17:03:00.000-08:00

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.

NOW WHAT?!

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

2010-11-20T16:57:00.000-08:00

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

2010-11-20T16:51:00.000-08:00

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 – www.bamacomp.com

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

2010-11-20T16:23:00.001-08:00

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: http://caselaw.findlaw.com/al-court-of-civil-appeals/1180416.html.

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

Email: tcary@mcatlaw.com

Telephone: 1-800-638-3665