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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.”

Federal courts sitting in Alabama cannot hear workers’ compensation claims, even where there is diversity of citizenship between the parties. 28 U.S.C. §1445(c).The Alabama Legislature created a mechanism using this State’s civil court system for providing injured workers limited redress for job-related injuries. The same Legislature made provision to protect injured workers from termination in retaliation for pursuing workers’ compensation claims. See, Ala. Code § 25-5-11.1.Logically, the Legislature intended for the State’s courts to decide workers’ compensation issues, including wrongful termination claims.

In Alabama, there is no privilege “covering communications between a physician and a patient.” Charles W. Gamble, MCELROY’S ALABAMA EVIDENCE § 413.01 (5th ed. 1996). “Communications to a physician or surgeon by a patient or one seeking professional advice are not protected under common law and no such privilege exists in Alabama, absent a statute creating it.” Id. at 1677. Unfortunately, this often leads to situations where medical providers treating injured workers are allowed to discuss the workers’ condition and care with insurance adjusters, case managers, rehabilitation nurses and defense attorneys without the knowledge and consent of the patient. But see, David G. Wirtes, Jr., R. Edwin Lamberth, Joanna Gomez, “An Important Consequence of HIPAA: No more ex parte communications between defense attorneys and plaintiffs’ treating physicians.” AMERICAN JOURNAL OF TRIAL ADVOCACY Vol. 27:1 (2004). Such a rule flies in the face of new privacy rules regarding disclosure of medical information and in a State where there is a doctor-patient privilege when the doctor is a psychiatrist but not an non-psychiatrist M.D., there should be at least a limited privilege for patients to refuse to disclose confidential communications made for the purposes of diagnosis or treatment.

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