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Conclusion

German Prime Minister Otto von Bismarck is credited with saying that “People who enjoy eating sausage and obey the law should not watch either being made.” Sometimes the compromise inherent in politics can produce less than perfect results. The same is true in the area of workers’ compensation law. Often when advocates for workers suggest modest changes to the law, they are met with proposed changes that would strip away even the limited rights that currently exist. An example of legislative compromise in this area illustrates the point. It is a felony to make a fraudulent claim for workers’ compensation benefits. Ala. Code § 13A-11-124 provides that “[a]ny person who makes or causes to be made any knowingly false or fraudulent material statement or material representation for the purpose of obtaining compensation, as defined in Section 25-5-1(1), as amended, for himself or herself or any other person is guilty of a class C felony.” The original bill on this topic would have provided in essence that anyone who made false or fraudulent statements having anything to do with claims for workers’ compensation benefits is guilty of a felony. The original bill would have covered not just employees, but also employers, insurance adjusters, doctors, therapist, attorneys, rehab nurses, vocational experts, etc. In the compromise that resulted in our current law, only employees are covered.

Clearly, the current Workers’ Compensation Act provides far superior benefits for injured workers than what was available to our workforce 85 years ago. However, the workers in this State deserve our continued efforts at obtaining legislative changes to those areas of the Act that are outdated, unfair or otherwise fail to adequately protect injured workers. Perhaps it all depends on whose ox is gored. Attorneys who represent injured workers are the only voice for those workers and we need to try to make a difference and improve our clients’ position.

Alabama still struggles to overcome a national reputation for being slow to change and for being anything but progressive. However, Alabama is one of the top five states for doing business, in large part because of our quality workforce. Plant Sites and Parks Magazine, as cited by an Alabama Development Office news release. It is time for the Alabama Workers’ Compensation Act to be amended in order that the law accomplish its beneficent purposes. In doing so, Alabama could come closer to meeting the stated goals of the Act by providing better job opportunities and increased employment for people in this State and by taking adequate care of the workforce that continues to make Alabama’s economy capture the attention of the rest of the nation. www.southern.org; and Ala. Code § 25-5-14.

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.

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; that Nintendo entered the home video game market; that 20 percent of U.S. homeowners had VCRs in their homes; that Microsoft shipped the Windows 1.0 operating system; and that the typical modem speed was 2400 bits/second.

1985 was also the year the Alabama Supreme Court decided Ex parte Beaver Valley Corp., 477 So. 2d 408, 411 (Ala. 1985), in which the Supreme Court held that an employer is not required to pay for graduate school in order to retrain an injured worker. Not a single justice who participated in that decision, (which has been cited 45 times for one proposition or another), remains on the Alabama Supreme Court today.

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 $376.18 last year to have the same purchasing power as $220 did in 1985. Accordingly, the $220 cap is at least 42 percent too low and it is getting lower each year. In contrast, each July, the Department of Industrial Relations announces the maximum and minimum rates of temporary total disability benefits. For injuries occurring on and after July 1, 2004, the maximum workers’ compensation payable will be $607.00 per week, and the minimum compensation will be $167.00 per week. At the current rate of annual increase, the minimum compensation rate of temporary total disability benefits will exceed the maximum compensation payable for permanent partial disability in just 10 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 37.5 cents per mile today.

This oddity in the law produces strange results in some cases. For example, a worker earning minimum wage would not penalized by the $220 cap ($5.15 per hours at 40 hours = $206.00), but a worker who earned more than $8.25 per hour for 40 hours would be effected by the cap. 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. The $220 cap can cause a worker who suffers a severe injury on the job to be forced to file bankruptcy.

The Act provides that a worker who is permanently and totally disabled as a result of a job-related injury (the legal conclusions of the trial court in workers' compensation cases are reviewed de novo on appeal), is entitled to receive 66 ⅔ percent of her average weekly wage for the remainder of her life. According to mortality tables published by the Alabama Department of Industrial Relations, a female worker at age 20 has a life expectancy of 57.04 years or 2,976 weeks . If that same worker is found to be 99 percent disabled, she will be entitled to receive benefits for no longer than 300 weeks, and then she must subtract the number of weeks of temporary total disability benefits she received. This chasm is particularly unfair to high wage earners.

A recent case illustrated this chasm: the value of a 99 percent disability in a given case was about $50,000 while a 100 percent disability had a present value of about $450,000. While there is considerable money between 99 percent and 100 percent in this case, there are no percentage points between 99 percent and 100 percent, and a judge has no discretion to award anything in the gray area between 99 percent and 100 percent. Moreover, because of the “$220 cap” discussed below, this particular worker would have received no greater benefits if the court found her to be 32 percent disabled than she would at 99 percent disability. As a result, judges are left to make very difficult decisions in cases which frequently pit vocational experts against other and whose opinions are on opposite poles from each other. This chasm is one of the most unfair aspects of the Act and can work severe financial hardships to injured workers.

Alabama’s retaliatory discharge statute, Ala. Code § 25-5-11.1 provides a protection for employees such that they may not be terminated in retaliation for their pursuit of workers’ compensation benefits. For a number of years, the elements of a wrongful termination or retaliatory discharge claim required the injured employee to prove (1) an employment relationship, (2) an on-the-job injury, (3) knowledge on the part of the employer of the injury, and (4) subsequent termination of employment based upon the employee’s injury and filing of a workers’ compensation claim. Until recently, Alabama Courts consistently held that “solely” did not mean that the employer could not have other reasons, aside from retaliation, for firing the worker. See, e.g., Twilly v. Daubert Coated Products, Inc., 536 So. 2d 1364 (Ala. 1988). However, in Alabama Power Company v. Aldridge, 854 So. 2d 554 (Ala. 2002), the Supreme Court held the plaintiff must prove termination of employment based solely upon the employee’s on-the-job injury and the filing of a workers’ compensation claim.

Chief Justice Moore accurately predicted in his dissent in Aldridge how the majority’s decision would change the landscape in wrongful termination claims. He wrote:

“More troubling though than the majority's conclusion on the facts in this case is it’s rewriting the requirements for establishing a prima facie case of retaliatory discharge. Few employers will provide a direct causal connection between an employee's discharge and the employee's filing of a workers’ compensation claim, thus making circumstantial evidence critical in a retaliatory-discharge case. Whether that evidence proves what § 25-5-11.1 requires is a determination best left to the jury, but requiring proof of a causal connection at the initial stage of the case will keep many such cases from ever going to a jury. The statute does not demonstrate that the Legislature intended that requirement, nor does such an interpretation square with our traditional rule of construing the workers’ compensation statutes liberally.”

Aldridge, supra, 854 So. 2d at 573.

The Alabama Legislature intended to give injured workers protection from being terminated in the context of their pursuit of workers’ compensation benefits. Injured workers should not be made to choose between their jobs and medical care when they are hurt on the job.

 

Ala. Code § 25-5-11(a) permits an employee to proceed against his employer for compensation benefits and, at the same time, to proceed against any other party who may also be liable for the employee's injuries. Section 25-5-11(a) states in part:

“If the injured employee recovers damages against the other party, the amount of the damages recovered and collected shall be credited upon the liability of the employer for compensation. If the damages recovered and collected are in excess of the compensation payable under this chapter, there shall be no further liability on the employer to pay compensation on account of the injury or death. To the extent of the recovery of damages against the other party, the employer shall be entitled to reimbursement for the amount of the compensation theretofore paid on account of injury or death. For purposes of this amendatory act, the employer shall be entitled to subrogation for medical and vocational benefits expended by the employer on behalf of the employee.”

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