Alabama Workers' Comp Blawg

Senate Bill Proposes Several Changes to the Alabama Workers' Compensation Act

On December 9, 2011, State Senator Arthur Orr (R-Decatur) pre-filed a bill (SB77) for the 2012 legislative session that proposes several welcome changes to the Alabama Workers’ Compensation Act. The following is a summary of the proposed changes:

1. The addition of § 25-5-57(a)(3)j - "In the event of an injury to an enumerated member under paragraph a. of this subdivision, evidence of an employee's pain complaints that are limited to that member may not be relied upon by the trial court as the sole basis for an award of compensation benefits beyond those otherwise available for the loss, or loss of use, of that body part as provided under paragraph a. or d. of this subdivision."

Plain English:

The trial judge cannot consider complaints of pain from a scheduled member as a reason to remove the injury from the schedule.

My Two Cents:

This probably amounts to a non-issue since the current pain exception is exceptionally high. As the law now stands, an employee has the burden of proving that his pain is totally or virtually totally disabling in order to remove his injury from the schedule.

2. The following sentence will be added to § 25-5-57(a)(4)a - "Notwithstanding the foregoing, the obligation of an employer to pay benefits based upon a permanent total disability shall continue during the permanent total disability of the employee, except that benefits based upon permanent total disability shall otherwise terminate upon either the date of the employee's sixty-fifth birthday or the date 500 weeks after the date of injury, whichever is longer."

Plain English:

Permanent and Total benefits are cut off at the age of 65.

My Two Cents:

This makes a lot of sense. The employee continues to receive benefits in the form of Social Security and the cost for workers’ compensation goes down. This will make Alabama more attractive to businesses which will create more jobs and help improve the economy.

3. § 25-5-68 will be changed to increase the maximum compensation payable for permanent partial disability to $240 (from $220).

Plain English:

I can’t put it any plainer than that!

My Two Cents:

This is the first increase since 1985 and represents an olive branch to those who might oppose other aspects of SB77.

4. The addition of § 25-5-77(j) - "If the employee does not receive medical treatment related to the claimed injury for a period of two years, a rebuttable presumption arises that any subsequently obtained medical treatment is unrelated to the workers' compensation injury. The employer shall be liable for such medical treatment only upon a finding of clear and convincing proof that such treatment is related to the workers' compensation injury. The obligation of the employer for the payment of medical benefits shall conclusively end if the employee does not receive medical treatment related to the claimed injury for a period of four years."

Plain English:

Two years with no medical treatment means any subsequent treatment is probably not related to the worker’s compensation injury. Four years with no medical treatment means any subsequent treatment is definitely not related to the workers’ compensation injury.

My Two Cents:

As a practical matter, an employee will probably just need to see his or her authorized treating physician for a check up every couple of years to avoid medical benefits closure. If this bill is passed, I predict that there will be litigation over the definition of "medical treatment." In other words, if the employee checks out fine and the doctor does not actually provide any treatment, does that satisfy the § 25-5-77(j) requirement for avoiding the closure of benefits?

5. § 25-5-81(e)(2) will be changed to allow the Court of Civil Appeals to reweigh the evidence considered by the trial court. The actual language is as follows: "In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding, when weighed against evidence in opposition, is supported by substantial evidence."

Plain English:

The Court of Civil Appeals will be able to consider the evidence on its own rather than simply deferring to the trial judge.

My Two Cents:

Check out our blog posting from 2 days ago entitled "Verdict of Employer Reversed due to Inconsistencies in Medical Records" and tell me that the Court is not already doing this.

The 2012 legislative session begins on February 7^th so stay tuned. We will continue to monitor the progress of the bill and report on any new developments.