Alabama Litigation Review

Alabama Litigation Review

Insights & Commentary on Developments in Alabama Litigation

The Forgotten Bargain That Was Our Workers’ Compensation System

Posted in Workers' Compensation

A few years ago, The Center for Justice & Democracy (CJ&D) published a post titled Snapshot of Justice: The Failure of Workers’ Compensation. The post begins by stating —

When a worker is hurt, workers’ compensation is the exclusive remedy against an employer.

This is an important opening statement. When workers’ compensation systems were first created, the concept was seen as a bargain benefiting both employers and employees. Employers gained protections from lawsuits (with potentially huge damages) in the event company or co-employee negligence caused the injury. Employees gained basic medical care (promoting rehabilitation and the return to work) and important disability benefits.

Yet, in the last few decades, this bargain has been forgotten. Slowly, workers have seen basic benefits erode. The CJ&D post made four significant points demonstrating how workers have slowly lost workers’ compensation benefits. Here are the post’s four points (in bold) with my comments following:

  • Chipping away at already meager compensation. From the beginning, workers’ compensation systems did not fully compensate workers for injuries. These systems generally did not provide benefits for pain, suffering, or other tremendous losses due to injury. Yet, important benefits were provided — medical care, rehabilitation, a small percentage of wage losses for disability. The goal was to treat and return employees to work if possible. If not possible, a minimal level of benefits would be provided. However, in many states, recent laws have reduced these benefits. In Alabama, our appellate courts have also restricted the benefits available to disabled workers. Unfortunately, many attorneys accept workers’ compensation claims without truly understanding the benefits available to their clients. The lack of competent legal representation can further shortchange injured workers needing basic benefits.
  • The fraud of worker fraud. The CJ&D post discusses the false campaign by insurance companies over the last twenty years to create issues of employee fraud. In reality, employee fraud is minimal. Overwhelmingly, most fraud is committed by employers as reports clearly show. In my practice, I routinely face insurance carriers which deny claims based on false reasons or file multiple frivolous defenses to avoid paying basic benefits.
  • System costs. The system should efficiently provide medical and disability benefits. Yet, it does not. In Alabama, the employer (meaning its insurance carrier) picks the authorized doctor. Sometimes, insurance carriers pick doctors they know will not treat injuries. When the doctor does recommend treatment, the insurance carrier will often use administrative procedures to delay or deny care. This results in significant costs to workers. It also results in additional administrative costs to doctors. That’s just the beginning. When the claim is disputed, the worker must resort to a judicial system that creates more needless costs. Instead of efficiency, the system now has administrative and judicial procedures delaying needed benefits. This gives insurance companies a huge advantage at the expense of injured workers and their families. Because of administrative and judicial hurdles, it is important injured workers consult legal counsel with expertise in this area of law.
  • Safety. This is a subject I’ve discussed many times. Safety is a one-way street in workers’ compensation. That’s wrong. If an employee intentionally breaks safety rules, he can be denied benefits. What if the employer neglects safety? An unsafe employer faces no additional workers’ compensation penalties or costs in Alabama. And, because the system is designed to pay workers only a percentage of losses, the employer never faces the true costs of an injury.

A system designed to benefit both employers and injured employees has lost balance. Increasingly, the system neglects injured workers. Increasingly, employers and insurance carriers shift the costs of injury and disability to families and government. That’s wrong. It harms workers, their families, and all of us.

Medicare Reimbursement And Wrongful Death In Alabama

Posted in Personal Injury

Subrogation. Reimbursement. What do these concepts mean for personal injury cases? At its most basic, these concepts mean your health insurance carrier (or government plan) has certain rights to be “paid back” if you win or settle your case. While it sounds simple, the issues can be complex. And, an understanding of the rules can make a huge difference in your case.

Yet, many attorneys do not fully understand these issues. Some of these attorneys even advertise for personal injury cases. Their clients can pay a big price for that lack of understanding.

Case in point — A local attorney was recently discussing a wrongful death case he settled. During the discussion, he mentioned his reimbursement to Medicare for medical bills it paid. I wish we could have spoken before he settled. He could have saved his client that money.

In Alabama, wrongful death claims are very different from normal personal injury claims. If a lawsuit is only filed after a person’s death in Alabama, our law only allows punitive damages. Our law does not allow compensatory damages, which includes recovery for medical costs, for wrongful death. Since a wrongful death claim does not involve a recovery for medical costs, you should not be required to “pay back” the health insurance company or plan.

Medicare must consider what damages are actually recoverable under state law. That is the current law. I addressed this issue in a prior post titled A Federal Court Limits Medicare’s Reimbursement Rights. The local attorney relating his recent wrongful death settlement was not alone in his lack of understanding. If he had understood these issues, his client’s settlement would have been much better.

Falls From Heights — A Deadly Workplace Hazard That Is Easily Preventable

Posted in Personal Injury, Workers' Compensation

Falls from heights are a leading cause of death and disability on construction sites. According to OSHA, falls cause one-third (1/3) of all construction-related deaths. Workers who survive long falls are often left with a lifetime of chronic pain and disability. In my practice, I’ve had numerous clients who suffered severe injury from falls on construction or industrial sites. I’ve seen many types of falls from heights. Yet, one piece of equipment has been involved in far too many disabling falls — The Scissors Lift.

Image by Smial

A young man died when 50 mile per hour winds toppled the extended lift from which he was working. The death was easily preventable with just a little safety planning. No worker should be required to use a lift outside in bad weather. Too often, deaths like this one go unmentioned. This time, the event made national news. It involved a college student working for the athletic department of a major university. What are a few easily preventable scissors lift falls I’ve seen as an attorney?

  • Case Number 1:  The scene was a large construction project on Redstone Arsenal in Huntsville. The contractor was using extended, moving scissors lifts to erect the metal ceiling. A lift toppled because the concrete floor below was uneven. The worker fell almost 30 feet. He survived but was left permanently and totally disabled. The accident could have easily been prevented. Yet, the safe use of lifts was never addressed prior to the fall.
  • Case Number 2:  Two electrical workers were required to use an extended scissors lift while installing wiring in the ceiling of an industrial plant in Decatur, Alabama. The two workers notified management and asked that nearby moving equipment be stopped and secured. Management at the plant chose not to stop or lockout nearby equipment. A crane struck the lift sending the men to the floor below. Both suffered tremendous injuries requiring multiple surgeries. One of the workers was left totally disabled.
  • Case Number 3:  A worker was required to use a scissors lift while dismantling an old industrial facility. While working in the ceiling from the extended lift, a fire suddenly occurred around him. Yet, the lift was stuck in position. And, the fire extinguisher had been removed. The worker faced a bad choice – jump or risk being burned in the fire. He jumped from 15 feet in the air. He suffered injuries to his back and legs requiring several surgeries.

All these injuries were easily preventable by management. The solution starts with an Activity Hazard Analysis. What is an activity hazard analysis? It’s a simple process to evaluate the work for safety before putting your workers in potential harm. And, it’s a simple process that every company should perform before starting specific tasks, before using machinery, or before putting workers in a difficult position. It’s a process that would have identified the hazard in every case I mentioned BEFORE the injuries occurred. A little advance safety planning can prevent needless deaths, injuries, and claims.

Invokana – Is The Drug A Safe Treatment For Diabetes?

Posted in Defective Products, Personal Injury

Invokana (canagliflozin) is a relatively new drug marketed to treat Type 2 diabetes. The drug is the first in a new class of medications known as sodium-glucose cotransporter 2 (SGLT2) inhibitors. This class of drugs also includes Farxiga, Glyxambi, Jardiance, and Xigduo XR. How does this new class of drugs work? The drugs work by altering kidney function to stop reabsorption of glucose into the bloodstream. Instead, sugar is excreted through the urine.

In March 2013, the Food and Drug Administration (FDA) approved Invokana. Since approval, Invokana sales have grown rapidly. Johnson & Johnson may realize $1 Billion in annual sales from its new blockbuster medication.

Is Invokana safe? Since its introduction just over two years ago, Invokana has been linked to hundreds of adverse event reports. These include reports of kidney damage, kidney failure, urinary tract infections, and ketoacidosis. In May 2015, the FDA issued a drug safety communication warning patients about the risk of ketoacidosis from Invokana and the other drugs in its class. Diabetic ketoacidosis is a build-up of acid in the blood. It is a serious condition that can lead to diabetic coma or even death. What are some symptoms of ketoacidosis? Symptoms include:

  • Confusion
  • Abdominal Pain
  • Difficulty Breathing
  • Unusual Fatigue or Sleepiness
  • Vomiting or Nausea

In just the first year the drug was marketed, QuarterWatch Report (published by the Institute for Safe Medication Practices) identified 457 serious adverse event reports. This is likely a small percentage of all problems truly associated with the medication. Most problems are not fully reported. The QuarterWatch Report then summarizes the issue:

The unanswered question about canagliflozin – shared in part by other diabetes medications – is whether it has clinical benefits, and whether those benefits outweigh the risks.

Diabetes is a serious health condition in the United States. And, drug companies have made billions of dollars rushing new drugs to market. Too often, drug companies have wrongly valued profits over people. Drug companies have marketed other classes of diabetes drugs that have also resulted in patient injury and death. I’ve written about some of these past dangerous and defective medications as well as our efforts to assist clients injured by those drugs. We are continuing to investigate Invokana and other SGLT2 inhibitors closely.

Injured At Work? Somebody Is Watching You.

Posted in Personal Injury, Workers' Compensation

Surveillance. If you have a workers’ compensation claim, you should expect it. What should you know about workers’ compensation claims and surveillance? Here are a few thoughts.

A Few Ways Surveillance Can Be Used Against You

  1. To Show You Are NOT Disabled. Many hurt people have good days and bad days. While an investigator may conduct days or weeks of surveillance, it will never be seen. Only a few moments will be on video – the few moments when you were at your best. This is all the insurance carrier needs to create doubt at trial. My advice:  Be honest from the start about your condition. If you have good and bad days, tell the truth. And, avoid activities that worsen your pain.
  2. To Show You Are Exaggerating Your Problems. Again, be honest. If you have trouble lifting heavy objects, that’s OK. But, don’t exaggerate by claiming you cannot lift anything at all. Surveillance can be used to show you exaggerated legitimate injuries.
  3. To Show You Are Capable Of Doing More Than The Doctor’s Restrictions. Physical restrictions are an important issue in workers’ compensation cases. If the doctor restricts you from certain activities and you do them anyway, surveillance can be powerful evidence. You can expect the insurance carrier to show the surveillance to your doctor in an effort to impact his opinions.
  4. To Show You Are Not Credible. Surveillance is about credibility – your credibility. As the injured claimant, your credibility is the most important issue in the case.

A Few Surveillance Stories

Usually, surveillance is created by investigators who post themselves outside your home and follow you. Yet, that’s not always the case. I’ve seen many unusual instances of surveillance. Several stories stand out. Each presents an important lesson.

  1. The Missing Dog. Here, the investigator approached our client’s home and rang her doorbell. When she opened her door, the investigator claimed his dog had run into her back yard. The video showed him pleading for help. He wanted our client to come outside and help search. She reluctantly did so. The video showed her performing several activities beyond her restrictions simply trying to help. The Lesson:  Never exceed your restrictions.
  2. The Mistaken Identity. This investigator had great video. It showed a person lifting huge tires, repairing a car, performing yard work, helping a neighbor, and lifting several other heavy objects. Yet, there was one HUGE problem. The guy on tape was not the injured client. It was his brother. The investigator had followed the wrong guy. The Lesson:  The investigator does not always get it right.
  3. The Shiny Car. This young man suffered a terrible back injury. He was truly limited from work. He spent most of the day in great pain, unable to function. Before his injury, he rebuilt a beautiful antique car. It sat proudly in his driveway. After the injury, his brother agreed to wash it regularly for him. Occasionally (right after spinal injections providing temporary relief), the young man would take a cloth and wipe the car. He could only do this for a few minutes. Of course, the video only showed the few minutes when he appeared fine. The Lesson:  A few good minutes can impact your claim.
  4. The Meltdown. After several surgeries, this client was left in chronic pain. He could no longer work. He was depressed. And, the investigator had been watching his house for weeks. Our advice here is to call the police and report a strange vehicle / person outside your home. However, this client did not call the police. He became enraged at the investigator and threatened him with a gun (all on film). The Lesson:  Control your reactions.

A Final Thought About Surveillance And Alabama Law

Alabama courts have provided employers (and their insurance carriers) with a huge advantage on the issue of surveillance. If you file a workers’ compensation lawsuit, the lawyers for your employer will eventually take your deposition. And, Alabama court decisions allow the employer (and its insurance carrier) to withhold any surveillance video until after your deposition. This means you must first answer questions before seeing the videotape. This is another reason why you need legal counsel who knows workers’ compensation law and is willing to work hard for you.

New Rules Risk Lives On The Highway (Update)

Posted in Personal Injury

I recently discussed a proposal in Congress which would make our highways much more dangerous. The proposal would allow longer trucker hours, heavier loads, and bigger trucks. Statistics indicate 4,000 people are killed and up to 100,000 people suffer personal injury annually in large truck crashes. My earlier post asks the question — Why change the rules and make our highways even more dangerous?

The plan to change the rules puts all drivers at risk. It’s a plan pushed by trucking industry lobbyists that puts profits over people. And, it’s wrong. I felt compelled to write this update after reading an article in a Mississippi newspaper. The article, titled The Longer Haul Debate, cites an effort by Mississippi officials to oppose the dangerous proposal to alter trucking rules. One official urged the Senate to squash the proposal saying:

I’m a whole lot more interested in the safety of Mississippi’s drivers than I am the financial welfare of a national corporation.

I admire the courage of this official to put safety before profit. In a letter to Mississippi Senator Thad Cochran, the officials noted a proposal to allow larger trucks:

would endanger motorists, worsen our crumbling roads and increase the fiscal burden shouldered by Mississippi taxpayers.

I wish Alabama officials would also advocate for the safety of drivers on our roads. Here is a chance for our officials to put public interests before corporate interests.

Broken Promises — The Workers’ Compensation Settlement Mill

Posted in Personal Injury, Workers' Compensation

What is the most common lie in workers’ compensation claims? A lawyer in another state recently discussed this question on his blog. His conclusion:

I thought long and hard about that one.  Unfortunately there are many to choose from.  But I think the biggest is from lawyers who will do anything to sign a case up.

That lawyer was certainly correct in his conclusion – “there are many to choose from.” In my practice, I frequently deal with employers and insurance carriers who are less than honest on many issues. These include return to work issues, medical care, termination of employment, and disability benefits owed. In fact, the list of issues is too great for one blog post. So, I’ll focus on the topic of promises to sign up the case.

It’s a growing problem in both personal injury and workers’ compensation cases. Billboards and television advertisements promise huge recoveries in record time. Fast settlements and a quick check – That’s the frequent promise. Sometimes, it works that way. But, most of the time it does not. While promises are made to get the case, most of these volume lawyers fail to help their clients to the fullest. Sometimes, these volume lawyers even leave their clients in worse long-term shape. I see it every day in both personal injury and workers’ compensation cases.

Good attorneys rarely make promises of huge recoveries or quick settlements. Why? Because good attorneys know the best results come with hard work and preparation. And, good attorneys have actually seen the inside of a courtroom enough to know how justice really works. After making promises “to get” the case, what are a few ways these settlement mill lawyers fail clients in the workers’ compensation context:

  • They do not fight to get medical treatment for clients.
  • They do not monitor medical care to prevent insurance carriers from sending clients to the worst doctors.
  • They do not defend clients against false denials of claims.
  • They do not research and explore difficult injuries in an effort to understand fully the impact on clients.
  • They do not aggressively represent clients.
  • They do not take cases to trial when settlement offers are unfair to clients.
  • They do not protect the rights of clients to long-term medical care for their injuries.

The interest of settlement mills is volume settlements, not the fight for justice. I see the results every day. My office receives calls daily from people who settled their case with one of these settlement mills and are now left in a bad situation. Unfortunately, it’s usually too late to help. These bad volume settlements affect all claims. In our cases, we now face employers and insurance adjusters who routinely and wrongly expect any settlement will be unfairly low and conditioned upon an injured worker simply giving up his or her right to medical care. That’s wrong. A system that treats individuals as parts on an assembly line is a system which leaves us all short of justice.

New Rules Risk Lives On The Highway

Posted in Personal Injury

Larger trucks. Heavier loads. Longer driver hours. These proposed changes will make our highways more dangerous. And, they are quietly working their way through Congress.

A recent Baltimore Sun article starts —

With the number of fatal accidents involving tractor-trailers on the rise, now would seem like the wrong time to consider relaxing truck safety rules in the United States. Yet that is exactly where Congress appears to be headed – and proponents are trying to accomplish this maneuver in an unusually stealthy manner.

Earlier this year I completed a trucking case where the company allowed its driver to stay on the road despite a long history of prior collisions. In another recent case, the driver had repeatedly been cited for dangerously overweight trucks. Why change the rules and make our highways even more dangerous? The truth — it’s a plan that puts profits over people. It’s a bad plan. That is why it’s being done quietly.

I’ve seen the results of long trucker hours and overloaded trucks firsthand — talking with families suffering from the personal injury or death of a loved one. Here are a few facts reported by the Baltimore Sun —

  • The proposed rule would allow 82 hour work weeks for truck drivers.
  • A truck driver survey revealed half of the drivers had actually fallen asleep while driving at least once during the prior year.
  • Longer and heavier trucks have a worse safety record than standard single trailer trucks.

The terrible collision where an exhausted Walmart truck driver injured comedian Tracy Morgan received significant press attention. Yet, every day, Alabama families suffer from collisions caused by dangerous commercial trucks and reckless drivers. And, every highway driver has had to dodge a big eighteen wheeler barreling down the Interstate seemingly out of control and unwilling to drive at a safe speed. It’s wrong for Congress to consider putting us all at even greater risk of harm.

Were Clinical Trials For Xarelto Tainted By Misconduct?

Posted in Defective Products, Personal Injury

What is Xarelto?

Xarelto (Rivaroxaban) is a relatively new anticoagulant (blood thinner). The FDA first approved Xarelto in 2011. It is distributed in the United States by Johnson & Johnson subsidiary Janssen Pharmaceuticals and Bayer Healthcare. Xarelto was released as a replacement for Coumadin (Warfarin), a blood thinner effectively used for decades.

Xarelto is used to treat or prevent deep vein thrombosis which can lead to blood clots in the lungs (pulmonary embolism). It is also used to treat atrial fibrillation (heart rhythm disorder) to lower the risk of stroke due a blood clot. A Huffington Post article in 2012 detailed concerns of top heart doctors related to new blood thinners Xarelto and Pradaxa.

Were the Clinical Trials Tainted?

Slate article asks the important question — Are Your Medications Safe? It’s a question I’ve raised about several drugs and medical devices allowed by the FDA. According to Slate:

We didn’t have to search very hard to find FDA burying evidence of research misconduct.

The Slate article details two large clinical trials used to support FDA approval of Xarelto. According to the article, the studies were tainted by falsified data and the discarding of medical records.

What Problems Are Potentially Related to Xarelto?

Since its inception, Xarelto has been the subject of many adverse event reports to the FDA. Numerous claims have been filed as a result of personal injuries and deaths by patients taking the medication. Primary problems associated with the medication are:

  • Deaths Due To Uncontrolled Bleeding
  • Gastrointestinal Bleeding
  • Hemorrhaging
  • Strokes

Our FDA should protect patients from dangerous drugs and defective medical devices. Too often it does not. It’s all too common for dangerous and defective drugs to be approved for use. I’ve written past posts about the failed FDA approval process as well as research bias for drugs and medical devices. We are investigating Xarelto and potential injuries or deaths from it. In the future, the FDA should act first so needless injuries and deaths can be prevented.

The Lobby To Gut Workers’ Compensation

Posted in Workers' Compensation

An interesting article discusses the quiet lobbying effort to gut workers’ compensation laws bankrolled by Walmart and several other large retailers. According to the article, these companies have supported and funded a behind the scenes lobbying effort to dramatically change workers’ compensation laws in many states. My state, Alabama, is on the group’s target list.

The changes come quietly. In state legislatures, the group’s lobbyists work to promote legislation which limits or diminishes basic benefits to injured workers. One of the major efforts of this business group is to create an opt-out system for workers’ compensation. How would such a system work? Workers’ compensation benefits in Alabama are already extremely limited. Yet, although limited, the system does mandate certain basic medical and disability benefits for workers.

Under an opt-out system, a business could choose to opt-out of the workers’ compensation system and write its own benefit plan. The employer could be allowed to write its own rules governing benefits. If this ever became a reality in Alabama (and it already has in a couple states), here’s what injured workers and their families could possibly see —

  1. Plans that limit or cut-off medical benefits. Our current workers’ compensation law requires an employer to provide medical care for work-related injuries. Under some opt-out systems, the employer can choose to arbitrarily limit medical benefits to a set dollar amount or set time period in its plan. While this might save an employer like Walmart a few dollars, the overall cost to affected communities and taxpayers would be tremendous.
  2. Plans that limit or cut-off disability benefits. A proposal to cut-off disability benefits has already been tried in past Alabama legislative sessions. And, we are likely to see the proposal again in the future. If enacted, employers like Walmart might save a few dollars. Yet, the reality is that the cost of the disability would simply be shifted to the workers’ family, the local community, and the taxpayers.
  3. Plans that limit or deny benefits for many work-related activities. I recently completed a workers’ compensation case where the worker suffered paralysis following an injection at work. The employee was a healthcare worker who underwent additional vaccinations at her employer’s urging to save the employer from potential costs of blood-borne diseases. Yet, when injured, the employer tried to deny benefits arguing the injection was not mandatory. Do we want employers like Walmart to write plans arbitrarily limiting benefits to certain narrow activities? Do we want employers writing plans that exclude specific risks and exposures that are part of their employees’ actual work?

If this group was lobbying for real safety measures that prevented costly accidents and illnesses, it would be a good cause. But, the group is not engaged in that effort. Instead, this lobbying group is engaged in an effort to shift the costs of injuries in its workplaces. The group wants to shift those costs to the families of its workers, the communities where those workers live, and the taxpayers who pay for government services. The quiet lobbying efforts to gut our workers’ compensation laws should be stopped.