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David Letterman is famous, among other things, for his Top 10 Lists. In these lists, Letterman counts backward from 10 to one, listing humorous observations on a variety of topics relevant to pop culture. Every lawyer who practices in the area of workers’ compensation law in Alabama could make a similar top 10 list regarding needed changes to the workers’ compensation law, except the lists wouldn’t be funny, they would be distressing.

Alabama appellate courts have consistently stated that the Alabama Workers’ Compensation Act was intended by the legislature to have beneficent purposes. See, e.g., Ex parte Beaver Valley Corp., 477 So. 2d 408 (Ala. 1985). However, in many aspects, the Act’s beneficent purposes are difficult to find. In creating and later amending the Alabama’s Workers’ Compensation Act, the legislature attempted to strike a compromise between providing a safety net for workers who are injured on the job, while also addressing the concerns of industry in this State about the financial burdens involved in providing benefits for injured workers. Scott Paper Co. v. Taylor, 728 So. 2d 632 (Ala. Civ. App. 1997). Alabama’s workforce continues to get rave reviews partly because our workers possess a strong work ethic. “Alabama is a state that through its sense of tradition, strong work ethic and determination to succeed has been able to attract world-class companies to locate in the heartland of the South. In recent years, Alabama has proven itself to be a prime location for new and expanding businesses.” From the Alabama Development Office’s website, http://www.ado.state.al.us. The Center for Enterprise Development named Alabama the number one state for business vitality. While still maintaining the compromise between conflicting ideals, Alabama should do a better job at ensuring that its industrious workers are able to “speedily [obtain] appropriately high levels of benefits” when they are injured on the job. From a Memorandum on Workers’ Compensation Insurance, prepared by the Mobile Area Chamber of Commerce. http://www.mobilechamber.com/economic/Taxes_files/workers.htm. Indeed, the worker is worth his or her keep. Matthew 10:10b
The purpose of this blog is to list 10 major areas of the Alabama Workers’ compensation Act which are outdated, unfair or otherwise fail to adequately protect injured workers. In assembling this list, the author solicited opinions from judges and from lawyers who practice workers’ compensation law. Although the areas listed below would likely rank high on the list of any practitioner for possible improvements to the Act, the following list is the author’s. Other practitioners may well have a different set of concerns about the Act.

Introduction
The purpose of the Alabama Workers’ Compensation Act is to provide prompt and necessary medical treatment, and wage replacement for workers who are injured or killed from an accident arising out of and in the course of their employment. BASIC CLAIM HANDLING MANUAL, State of Alabama Department of Industrial Relations Workers’ Compensation Division, May 2004The Legislature expressed in its 1992 amendments to the Workers' Compensation Act that the Alabama Workers' Compensation Act is remedial in nature and should be liberally construed to effectuate the intended beneficial purposes. Act No. 92-537, § 1, Ala. Acts 1992. The modern Alabama Workers’ Compensation Act, (“the Act”), is codified at Ala. Code § 25-5-1, et seq.

In creating the workers’ compensation law, the Alabama Legislature slightly modified Minnesota’s statute and the intent of the legislature in creating a workers’ compensation law was primarily to address the following three areas:

  1. to provide certain relief to workers who become unable to work because of their employment-related injuries;
  2. to avoid the delay of relief associated with taking a tort claim to trial; and
  3. to shift the burden of industrial injuries onto the industry that caused the injury. Robert W. Lee & Steven W. Ford, ALABAMA WORKERS’ COMPENSATION LAW AND HANDBOOK at 9 (1999) (This is an excellent treatise and is highly recommended for any Workers’ Compensation practitioner in Alabama).

The first workers’ compensation law in Alabama was enacted in 1919. Before that time, it was very difficult for injured workers in Alabama to seek redress for their job-related injuries. The original workers’ compensation law in Alabama has been modified many times during the past 85 years. While benefits afforded to injured workers by the Act are substantially improved from that which may have existed in the past, many aspects of the Act need to be changed if the purpose of the Act is to be taken seriously.
Someone once said, “Don’t show me what I am doing wrong unless you help me to fix it.” Unfortunately, it is beyond the scope of this paper to recommend precise fixes to all these problem areas. Of course, the first part of solving any problem is to admit that a problem exists. Here are some of the problems with the Workers’ Compensation Act. Perhaps by beginning and continuing a dialogue about these problem areas, we can make a difference and improve the lot for injured workers in Alabama.

The top 10 list of things that should be changed about the Alabama’s Workers’ Compensation Act

  1. The "$220 cap"
  2. The huge chasm between 99 percent and 100 percent disability
  3. Now you see it, now you don’t: wrongful termination claims
  4. Subrogation in third party claims
  5. Arbitration of wrongful termination claims
  6. Create a limited doctor-patient privilege
  7. Lack of uniform standards for medical providers
  8. Attorney’s Fees
  9. No recovery for psychological injuries
  10. The table of scheduled members

About Tracy W. Cary
Tracy W. Cary earned his B.S. degree from the University of Florida College of Journalism and Communications and his J.D. degree from the University of Alabama School of Law. Before law school, Cary served in the U.S. Army as a field artillery officer and later as a JAGC officer in the Alabama Army National Guard. After completing law school, Cary served as staff attorney for Justice Hugh Maddox of the Alabama Supreme Court. Cary has practiced law in Dothan since 1994 and is a founding partner in the law firm MORRIS, CARY, ANDREWS, TALMADGE & DRIGGERS, LLC. Cary is a member of the Alabama Association for Justice; the Wiregrass Inns of Court, chairman of the Alabama State Bar Workers’ Compensation Section and the editorial board of THE ALABAMA LAWYER. He is licensed to practice law in Alabama, Florida, Georgia, Tennessee and the District of Columbia and is also a member of the bar of the United States Supreme Court. Cary frequently represents plaintiffs in workers’ compensation claims and has argued a workers’ compensation case before the Alabama Supreme Court. Email: tcary@morriscaryandrews.com