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The Workers’ Compensation Act allows the employer (or insurance carrier) to select the medical provider who will treat the injured worker. It seems that in many cases, workers are forced to be seen by medical providers who seem more interested in ensuring a steady flow in the pipeline of patients than in objectively treating the injured worker without regard to who is footing the bill. The Supreme Court has acknowledged the existence of these competing values:

“The first is the value of allowing an employee, as far as possible, to choose his own doctor. This value stems from the confidential nature of the doctor-patient relation, from the desirability of the patient's trusting the doctor, and from various other considerations. The other desirable value is that of achieving the maximum standards of rehabilitation by permitting the compensation system to exercise continuous control of the nature and quality of medical services from the moment of injury. If the injured employee has completely unlimited free choice of his doctor, in some cases he may select a doctor, because of personal relationship or acquaintance, who is not qualified to deal with the particular kind of case, or who at any rate is incapable of providing service of the quality required for the optimum rehabilitation process.”

City of Auburn v. Brown, 638 So. 2d 1339, 1340-41 (Ala. Civ. App. 1993) (cites omitted).

The Court of Civil Appeals noted that “[b]y developing a system for the selection of a treating physician in § 25-5-77, the Alabama Legislature was apparently attempting to strike a balance between the two values.” Id.

In a previous blog, I listed Number 10, The table of scheduled members, which is a rather bizarre list of 34 body parts or combinations of body parts found in Ala. Code § 25-5-57(a)(3) with a corresponding number of weeks a worker may be compensated if he is unfortunate enough to be injured while at work.

Number 9: No recovery for psychological injuries if the mental disorder or mental injury that has neither been produced nor been proximately caused by some physical injury to the body.

The Top 10 List of things I’d like to see changed in the Workers’ Compensation law (Continued)

By Tracy W. Cary, Alabama Workers' Compensation Attorney

In a previous blog, I listed Number 10, The table of scheduled members, which is a rather bizarre list of 34 body parts or combinations of body parts found in Ala. Code § 25-5-57(a)(3) with a corresponding number of weeks a worker may be compensated if he is unfortunate enough to be injured while at work.

Ala. Code § 25-5-57(a)(3) sets forth a rather bizarre list of 34 body parts or combinations of body parts with a corresponding number of weeks a worker may be compensated if he is unfortunate enough to be injured while at work. Of course, compensation is never a dollar-for-dollar replacement of what the worker has lost. Instead, the injured worker generally receives no more than 66 ⅔ percent of his average weekly wage. For example, if a job-related accident or illness causes permanent deafness to a worker’s ear, the worker is entitled to compensation for 53 weeks. When a worker loses his index finger due to an on-the-job accident, he receives compensation for 43 weeks. If a worker is minus a big toe after a job-related accident, he’ll receive 32 weeks compensation, and for a missing thumb, he’ll be entitled to 62 weeks of compensation. Lose an eye, you’ll get 124 weeks; a leg will get you 200 weeks; an arm will get you 22 weeks and a foot 139 weeks.

In years past, many practitioners routinely ignored the table of scheduled members because a doctor would almost always rate disability to the body as a whole as well as to the scheduled member. When the rating was to the body as a whole, the practitioner applied the 300 weeks from Ala. Code § 25-5-57(a)(3)g. The practitioner then worked the calculations using the formula for the body as a whole numbers and as well as the scheduled member numbers and argued for the higher figure. The Supreme Court attempted to apply the brakes to this practice in Ex parte Drummond Company, Inc., 837 So. 2d 831 (Ala. 2002), a decision which caused excitement, if short lived, among the defense bar. That excitement has been tempered by the practice of plaintiff’s lawyers who have simply shifted the focus to proving that “the effects of the loss of the member extend to other parts of the body and interfere with their efficiency.” Ex parte Drummond, 837 So. 2d at 834. In such cases, “the schedule allowance for the lost member is not exclusive.” Id.

There appears to be no reason or rhyme to the table of scheduled members and it is absolutely unfair to call an injury permanent and only offer compensation for such temporary periods based on the very limited number of weeks provided in the schedule. This is especially true when one considers that a worker injured on the job is entitled to receive no payment whatsoever for pain and suffering, mental anguish, loss of consortium, and the like. There has to be a better way than this body part system.

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.

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