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.

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.

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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.

     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.

     Avoid this problem in advance by telling the truth!  The truth is a simple insurance policy to prevent a misrepresentation defense.

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.

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.

“[I]t was the intention of this Court in adopting in Bell the exception to the workers’ compensation schedule to address those instances where the injury to a scheduled member caused such impairment to the body as a whole that the benefits reflected on the schedule were not appropriate. Specifically, the Bell test permitted an injury to a scheduled member to be compensated outside the schedule if the effect of the injury extends to other parts of the body and produces a greater or more prolonged incapacity than that which naturally results from the injury to the specific member.” Drummond, 837 So. 2d at 834.
The Supreme Court noted with alarm, however, that the Court of Civil Appeals had substantially expanded Bell to include the following as evidence that would take an injury outside the schedule: “(1) pain, swelling, and discoloration; (2) work restrictions; (3) impairment ratings to the body as a whole; and (4) vocational disabilities” … as well as (5) “the worker’s ability to find future employment.”
The Drummond Court then indicated it was placing a renewed emphasis to the policy that underlay the Bell test as recognized in 4 Lex K. Larson, Larson’s Workers’ Compensation Law § 87.02 (2001):
“The great majority of modern decisions agree that, if the effects of the loss of the member extend to other parts of the body and interfere with their efficiency, the schedule allowance for the lost member is not exclusive.”

The Drummond Court went to explicitly overruled nine cases they cited “insofar as they expanded the Bell test.” Over the years since Drummond was decided, practitioners have watched as our appellate courts continued to shape and mold this area of the law. It has not been unlike a tennis match but in many cases, and many injured workers have felt like they were being used as the tennis ball. Trial courts would make decisions based on the holdings in post-Drummond cases, only to have the Court of Civil Appeals reverse those decisions. If the Court of Civil Appeals expanded the Bell test, it would be accurate to say that the Court of Civil Appeals contracted the test post-Drummond to the detriment of injured workers.
Whereas pre-Drummond, the Supreme Court noted at least five ways to escape the schedule, post-Drummond the cases appear to have settled on at least the following three exceptions at the current time: (1) a debilitating level of pain; (2) where the effects of the loss of the member extend to other parts of the body and interfere with their efficiency; and (3) psychiatric or mental injuries. All three of these exceptions were discussed in the recent decision of the Court of Civil Appeals in Caseco, LLC v. Dingman, ___ So. 3d ____ [Ms. 2090461, December 17, 2010) (Ala. Civ. App. 2010).
Meanwhile in the Supreme Court’s decision in Thomas, supra, the Court upheld a finding of permanent and total disability in for an injury to a worker’s foot. It is interesting to note that the trial court found the injured worker to be permanently and totally disabled, the Court of Civil Appeals reversed that judgment, finding the workers should not have been compensated outside the schedule, and the Supreme Court reversed that decision, finding the Court of Civil Appeals erred in concluding the injury was limited to the schedule. In so finding, the Court noted that the injured worker’s foot injury impeded the effective functioning of the remainder of his body. Id., supra, slip op. at 14. This decision provides practitioners with guidance for what they Court requires in taking and injury to a scheduled body part outside the schedule. The Thomas decision also illustrates the importance of a well-written order at the trial court level containing findings of fact and conclusions of law which makes it more likely that a good result at the trial court level will be upheld on appeal. Workers’ compensation practitioners would be well served to stay current with this seemingly ever-changing area of the law.

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 the Federal 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.

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.

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! This is ridiculous!

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