Alabama Litigation Review

Alabama Litigation Review

Insights & Commentary on Developments in Alabama Litigation

Are Workers’ Compensation Opt-Out Systems Constitutional?

Posted in Workers' Compensation

Regular readers of this blog know my feelings about workers’ compensation — The system is already unfair to injured workers. That’s why my law firm philosophy in workers’ compensation cases is to fight hard so our clients receive the maximum benefits possible.

On several occasions, I’ve criticized the completely outrageous concept of opt out systems. These systems started in Texas and then spread to Oklahoma. If you want some background, you can read a few of my prior posts such as:

Workers’ Compensation Opt Out Systems — A Return To The Jungle

Basically, in opt out states, large companies can opt out of the regular workers’ compensation system and write their own plans. Ask yourself — Do you really trust Walmart to write a plan providing adequate benefits to its injured workers? I can introduce you to a large number of injured Walmart employees who had to sue the company for proper benefits.

In Alabama, workers’ compensation disputes are resolved in a trial court. In Oklahoma, an opt out system state, these disputes are heard by the Oklahoma Workers’ Compensation Commission (Commission). The Oklahoma Commission recently heard its first claim involving a denial of benefits under that State’s new opt out system.

After examining the employer plan at issue and the denial of benefits, the Oklahoma Commission ruled the Oklahoma opt out system was unconstitutional. In reaching it’s decision, the Oklahoma Commission made some interesting observations:

Although at first blush it appears that the Opt-Out Act requires that injured workers under an authorized benefit plan must be afforded benefits equal to or better to those under the Administrative Workers’ Compensation Act, this is decidedly not so. A closer look at the statutorily authorized plan requirements reveals that the benefit plans permitted to be used to opt-out establish a dual system under which injured workers are not treated equally, …

.  .  .

The appearance of equal treatment under the dual system is like a water mirage on the highway that disappears under closer inspection.

The entire opt out system is a mirage. It’s outrageous to believe that large employers like Walmart will write plans providing the same basic benefits as normal workers’ compensation systems. In truth, the typical opt out plan has arbitrary provisions denying many basic work-related injury claims. Opt out systems are a terrible idea. Employees hurt on the job deserve better.

A New Push To Limit Workers’ Compensation In Alabama

Posted in Workers' Compensation

With each new year, we see a renewed push to harm injured workers in Alabama. The latest effort — legislation proposed by Senator Arthur Orr. The Senator has renewed his effort from prior years to cut-off medical and disability benefits for severely injured Alabama workers.

Here are the two changes sought by Senator Orr:

  1. The proposed legislation substantially and arbitrarily limits medical benefits for ALL injured workers in Alabama.
  2. The proposed legislation substantially and arbitrarily limits disability benefits for those workers most in need — the totally disabled.

First, the proposed legislation substantially and arbitrarily limits medical benefits for all injured workers. How would medical benefits be limited? Senator Orr‘s proposal imposes arbitrary time limits on medical benefits. After a two year period without treatment, the worker faces an increased evidentiary burden at trial. After a four year period without treatment, benefits simply cease. And, the worker can NEVER again obtain medical care through our workers’ compensation system. That’s outrageous.

The proposal imposes deadlines leaving many workers without care. What about the worker who loses an arm in a work-related accident and requires a prosthetic one? When that prosthetic device wears out in a few years, the worker would be barred from any additional care or replacement. What about the worker who hurts his back in a work-related accident and requires spinal surgery? In spinal surgeries, a piece of hardware can fail several years down the road and cause severe pain or paralysis. The area of fusion can, and often, suffers post-surgical changes causing problems years down the road as well. Again, the injured worker in these scenarios is left without care under the workers’ compensation system. What about the worker who suffers a disabling injury which cannot be presently rehabilitated. Yet, five years from now medical science develops valuable treatment. Under Senator Orr’s proposal, the worker would not be eligible for the treatment under our workers’ compensation system. I could list numerous other examples where an injured worker may need medical care several years after an injury.

Senator Orr’s proposal seeks to inject an arbitrary time limit into situations best handled with the doctor chosen by the workers’ compensation carrier. Make no mistake — Senator Orr’s proposal does not save money for our State or our local communities. Instead, it increases the costs of injuries in our communities. Senator Orr’s proposal shifts medical costs from the insurance companies collecting premiums and places those expenses on taxpayers. You can expect Medicare and Medicaid, both funded by working families, to pick-up the increased tab. That’s wrong. It’s wrong for injured workers and their families to be left without proper care. It’s wrong for the insurance companies to profit at the expense of our local communities.

Second, the proposed legislation would arbitrarily terminate benefits for workers suffering a total disability at the age of 65. Yet, many healthy workers remain employed well beyond age 65 in the modern economy. So, why this arbitrary cut-off?

A totally disabled worker does not receive his or her full salary after suffering injury. Rather, total disability benefits are only a percentage of wages. While totally disabled workers receive this smaller percentage beyond a retirement age, those benefits come at a significant trade-off. Disabled workers never again receive any wage raises like the rest of us. Disabled workers never again receive any bonuses. Disabled workers never again receive other employment benefits, pension contributions, or retirement savings. And, because they are disabled, these employees and their employers no longer contribute to social security retirement benefits. So, at age 65 the worker is left without other typical benefits earned from the ability to work.

In other words, the worker may receive a small percentage of wages beyond the age of retirement. Yet, the same worker also loses much more. Now, Senator Orr proposes leaving totally disabled workers financially dependent upon families and local communities upon reaching the age of 65. Again, that’s a bad idea. It does not benefit the injured worker, his/her affected family or their local community. It benefits only one group — the insurance carriers collecting premiums.

These proposed changes to our workers’ compensation laws affect all of us. It is important that we have an open and honest debate about these issues.

Traumatic Brain Injury And The Impact On Daily Activities

Posted in Personal Injury

Traumatic brain injury (TBI) is a leading cause of disability. What’s worse, these injuries often go untreated or unrecognized by medical professionals. Many medical professionals lack training in the evaluation of TBI symptoms. In workers’ compensation cases, insurance companies often ignore the problems or send the patient to doctors unable to provide treatment.

Insurance companies frequently choose their own short-term savings over the tremendous long-term costs of TBI to affected families and communities. Patients and their families should push for needed care as soon as possible. Early evaluation and rehabilitation may have a significant positive impact on recovery. Additionally, a lengthy delay in evaluation and diagnosis may make it much more difficult for health professionals to provide important opinions at trial establishing an accident as the cause of the injury.

The Centers for Disease Control and Prevention (CDC) provides the following data:

  1. An estimated 1.7 million Americans suffer TBI each year; and,
  2. In a single year, the estimated cost of TBI in the United States was $60 Billion.

If anything, these numbers could be too low. I’ve seen far too many cases where employers, insurance carriers, and even the patients themselves, ignored the problems of TBI. This leads to greater suffering by the patient. And, this increases long-term costs to everyone.

Traumatic brain injuries can produce multiple problems which lead to disability. These problems can be behavioral, physical, emotional, and cognitive. I’ve listed a number of TBI symptoms on my law firm website. The article “Minimizing the effect of TBI-related physical sequelae on vocational return” provides a good discussion of the various problems associated with TBI.

Even mild TBI can produce lingering effects that impact a patient’s ability to maintain employment. Those effects should not be ignored. Research published by the Brain Injury Association of America reveals a substantial percentage of individuals suffering from TBI remain unemployed long-term.

If you have a family member who may suffer problems from TBI, you should carefully review the symptoms. You should look for local medical professionals who possess the skill and training to evaluate and treat these injuries. And, you should be prepared to patiently help your loved one with the serious issues that accompany these injuries.

Truckers With Serious Medical Conditions: A Danger To Other Drivers

Posted in Personal Injury

A recent article discusses a Georgia truck driver barred from driving by the Federal Motor Carrier Safety Administration (FMCSA) due to personal health issue. Commercial drivers with serious health issues are a major safety issue on our highways.

A recent FMCSA study of truck driver health paints a troubling picture. According to the study comparing long-haul truck drivers to other workers:

  • Obesity in truck drivers is twice as high
  • Morbid obesity is twice as high
  • Cigarette smoking is more than double
  • Self-reported diabetes is elevated
  • Over twice as many truck drivers are not covered by health insurance or health care plans
  • A lower percentage of drivers reported a good health status

The study discusses general health issues like obesity, hypertension, smoking and diabetes. Left unchecked and untreated, these health conditions can create significant safety issues on the highway. Commercial truck drivers must possess the alertness to observe conditions on the roadway and the physical ability to respond so that tragic crashes are avoided.

In the article, the Georgia truck driver actually falsified his medical history in order to be cleared for driving. Some cases involve drivers falsifying their medical history. Other cases involve trucking companies using doctors who ignore or neglect major problems in order to approve drivers.

In every personal injury case involving a commercial driver, we examine the health history. Sometimes, the results are very troubling. Last year, we resolved an Alabama trucking injury case where the driver had a long history of major sleep apnea creating problems with fatigue and alertness. That driver’s history was extensive. Yet, at the time of the case both the company and driver denied any health problems. The company’s doctor had routinely cleared the driver. We were able to discover the facts through investigation. And, we were able to discover records where medical professionals had expressed reservations about the driver’s ability to stay alert. Why did that trucking company allow the driver to continue operating one of its trucks? The company’s failure to act created the risk which caused our client’s permanent and disabling injuries.

That driver has since left the industry. How many other unsafe commercial truck drivers remain on Alabama roads despite major health issues?

Our Firm

Posted in Personal Injury

I’m a lawyer who helps people hurt by the negligence of another. I handle serious personal injury cases throughout Alabama. For the last 17 years, I’ve been a partner in the same Huntsville law firm. When my oldest law partner announced his retirement a few months ago, I decided to open my own law firm. The retirement of my oldest partner was bittersweet. He was both a mentor and a friend through many years of practice. Yet, change is always with us.

My new firm — Blackwell Law Firm — will continue helping personal injury victims. Most of our cases involve clients suffering severe injuries or permanent disabilities. And, most of these clients have families suffering with them. We believe the best case results are obtained by hard work and preparation. Unlike many advertising lawyers, we do not believe the quick settlement, high volume approach benefits the injured and their families. Rather, the firm focuses on working each case in an effort to obtain the maximum compensation possible. We routinely handle cases of:

  • Severe Personal Injury
  • Workers’ Compensation
  • Defective Products
  • Automobile Injuries
  • Bad Drugs And Medical Devices
  • Consumer Fraud
  • Wrongful Death

If you would like to discuss your legal issues, you can contact my firm at (256) 261-1315.

 

Workers’ Compensation Opt Out Systems — A View From The Frontline

Posted in Workers' Compensation

As part of its ongoing series on workers’ compensation laws, ProPublica has discussed new opt out systems in states like Texas. In October, I wrote about opt out systems and the harm they cause injured workers. Thankfully, Alabama has not adopted such a system.

Earlier this week, a Texas attorney told the story of Billy Shawn Walkup and how the Texas opt out system failed him. If you are concerned with how we treat working families, you should read the post. After suffering his injury, did Walkup get the medical care he needed? No. Under an opt out system, employers write their own rules. So, Walkup’s employer had him sign a waiver – preventing any lawsuit against the company. Next, the company fired Walkup when he did not recover from his injuries quickly. Finally, when the treating doctor determined Walkup’s injury was serious, the company sent him for a “so-called” independent medical examination. The company used the results of that examination to cut off needed medical benefits.

Walkup still needs surgery and disability benefits. According to the story, he barely functions as a result of his injury. But now, his employer can shift these costs to other working taxpayers through Social Security and Medicare. That’s not fair to Walkup or the rest of us. Yet, it is exactly how giant employers will re-write the rules in an opt out system. Here are a few unjust new rules you can expect big corporations to write:

  • Rules eliminating specific work-related conditions from coverage.
  • Rules requiring immediate notice, in writing, of specific injuries.
  • Rules allowing waivers that prevent any legal recourse by the worker.
  • Rules allowing someone hand-picked by the company to make medical and disability decisions.
  • Rules providing arbitrary cut-off dates or time limits on medical care.

Alabama’s work comp system is already unfair. Injured workers in Alabama already face a fight in many cases simply to obtain basic benefits. We routinely take cases to trial in order to obtain justice for our injured clients. Opt out legislation is a bad idea that will harm injured workers and their families.

Are We Seeing More Trust And Estate Cases?

Posted in Uncategorized

A recent blog titled The Rising Tide of Trust and Estate Litigation asks — Are trust and estate disputes on the rise? I don’t know the answer to that question. But, the author provides excellent commentary on the factors which (in his opinion) may be leading to an increasing number of cases.

Before I discuss the post, let me say — I am not an Estate lawyer. I don’t write Wills or Trusts. I don’t handle routine probate matters. My practice focuses on trial work. That’s where I enter this discussion. I have been hired on several occasions to make and prepare claims for trial. Most often, a Trust or Estate lawyer hires me to pursue claims for his/her clients.

For me, this is a good time to consider these issues. I just settled a Will contest lawsuit set for trial next week. Since the case settled so close to trial, we had already prepared. The case involved claims a man unduly influenced his elderly relative with dementia to sign a new Will eliminating other relatives from any inheritance.

The blog author identifies six factors creating the rising tide of cases. For a full discussion, take a look at his post. Four of the factors listed by that author were issues in recent cases I prepared for trial. Those four factors are:

  1. Aging Population More Prone to Dementia. We recently completed two different cases where an elderly person began suffering increasing levels of dementia over time. As the dementia progressed, another relative began to exert dominant influence. In one case, the dominant relative drove his elderly mother to several financial institutions and had her withdraw funds she held in Trust for her other stepchildren. In the second case, doctors warned the dominant relative multiple times that his elderly father suffered severe dementia and could not function independently. And, local police had even detained his father for wandering around town at night confused and lost. Yet, the dominant relative took his elderly father to a lawyer friend who re-wrote his Will to exclude all other relatives from any inheritance. The case settled before I could enjoy the cross-examination of that lawyer.
  2. Blended Families. Parents in blended families often have special concerns that their own children receive an inheritance. To accomplish these special concerns, parents in blended families may write provisions in their Wills or create Trusts for their own children. Questions can arise later over the ownership of assets. Also, as the final surviving spouse eventually ages and becomes infirm, some children may take advantage of the situation.
  3. Geographically Dispersed Families. Modern society is mobile. Relatives often move far away for jobs. Problems can arise when a parent or other relative ages. The aging parent begins to rely on a local relative or friend for greater help. We see cases where the local person uses the situation to wrongly influence the elderly person.
  4. Estate Planning Templates. Several years ago, a local attorney asked us to help pursue Breach of Trust claims for his client. We reviewed the Trust document and it was a very poor generic template. We began to investigate. We discovered someone in another state (with no legal or financial background) had created a boilerplate Trust template and marketed it to retired military spouses. This person was renting a local meeting room and sending elderly spouses correspondence scaring them into believing the government would take their assets upon their death. While that case was unusual, it is not unusual for some attorneys to use templates without personalizing them for individual clients. That is also wrong. Estate planning documents should be personalized to the specific client and his/her specific Estate goals. Otherwise, many problems can occur.

While the bulk of my cases are personal injury claims, I have prepared and tried Will/Trust contests. Like personal injury claims involving a traumatic head injury, Will/Trust contests with issues of diminished capacity present special concerns. It is always eye-opening to see how family members interact with a relative suffering from diminished capacity. Most family members are deeply concerned with their relative’s condition. Most close family members want to help if possible. Yet, one bad relative who takes advantage of the situation can leave long-lasting scars on an entire family.

Trucking Lobbyists Push To Relax Safety Rules

Posted in Personal Injury

According to a recent Salon article:

Big rig crashes kill nearly 4,000 Americans each year and injure more than 85,000. Since 2009, fatalities involving large trucks have increased 17 percent. Injuries have gone up 28 percent.

Salon then states the obvious assumption:

Given these numbers, you might expect Congress to be agitating for tighter controls on big rigs.

Instead, Congress is considering relaxing safety requirements. Lobbyist money is at the root of the proposed changes. I discussed these proposed safety rule changes in previous posts New Rules Risk Lives On The Highway and a later update.

What are some of the proposed changes pushed by trucking industry lobbyists? They include:

  • Allowing longer, double trailers
  • Raising weight limits for trailers loaded with cargo
  • Giving states permission to lower the minimum age of commercial drivers from 21 to 18
  • Eliminating some rest requirements for truckers who have worked long, consecutive shifts
  • Halting efforts to raise trucking liability insurance requirements from amounts set decades ago
  • Removing safety ratings of trucking firms from the internet (and public view)

These proposals are a terrible idea. If passed, they would put families at risk on our highways. Double trailers. Heavier loads. We have resolved two cases this year involving disabling personal injury where the truck driver was unable to stop or avoid collision because of his heavy load. In one of the cases, the truck driver had been cited on several prior occasions for operating his log truck at an excessive weight. Do we really want double trailers in the lane next to us on our highways? Do we really want heavier trucks that are unable to slow or stop in time to avoid a deadly collision? Of course not.

Eliminating rest requirements. For months, the severe personal injuries suffered by comedian Tracy Morgan and the death of his friend made national news. The resulting investigation revealed a truck driver too fatigued from far too many hours on the road. What happened to Tracy Morgan has become a daily occurrence on our highways. Yet, it should not be. I noted in my prior posts how a recent survey of truck drivers revealed half of them had fallen asleep at least once while driving in the prior year. Longer hours without mandatory rest creates an unacceptable danger on our highways.

Why should trucking companies using our road be allowed to hide their safety records? Trucking lobbyists not only want Congress to relax the rules, they also want the ability to hide the true records (and costs) created by a lack of safety. We recently deposed a truck driver who had negligently caused multiple collisions in a big rig. Each time, the company allowed him back into its truck. He was not disciplined. He was not reprimanded. He continued to drive until he collided with our client. That client now suffers permanent disability and chronic pain – from a driver who should not have been allowed back into a big rig. Instead of relaxing the rules, Congress should act responsibly in an effort to strengthen the rules and to make our highways safer.

Workers’ Compensation Opt Out Systems — A Return To The Jungle

Posted in Workers' Compensation

Our current workers’ compensation system is unfair and provides inadequate benefits to injured workers. Yet, it’s much better than the newest proposal pushed by corporate lobbyists – an opt out system.

Workers’ compensation protections are under constant threat from corporate lobbyists. One new threat is the opt out system enacted in Texas and Oklahoma. In that system, large companies can basically opt out of a state workers’ compensation system and write their own plans. In other words, employers can write their own rules. In practice, opt out systems allow arbitrary plans that do not value injured workers.

An opt out system is a return to the working wasteland of Upton Sinclair’s The Jungle where people are expendable. Like a line from the novel, people are given little value:

They had got the best out of him – they had worn him out, with their speeding-up and their carelessness, and now they had thrown him away.

This is where an opt out system will lead us. The authors of this system are now lobbying states beyond Texas and Oklahoma. Hopefully, we will never allow this system in Alabama. ProPublica explored the impact of opt out plans on working men and women suffering from work-related accidents and injuries. The real life stories detailed by ProPublica paint a disturbing picture.

What benefit changes can injured workers expect if employers write their own plans? Here are a few examples of harmful plan limits created by companies writing their own plans:

  1. Exclusions that eliminate specific injuries from coverage. For example, a large trucking company could write its plan to exclude injuries during the operation of a truck. Such an exclusion would leave workers without protection for the primary job-related accident or injury of that occupation.
  2. Rules that require specific and immediate notice of accidents and injuries. Many times, workers suffer an accident but don’t immediately realize the seriousness of the injury. This happens all the time in work-related accidents. And, most workers don’t want to file claims for every bump or bruise. Alabama law requires notice within a very short time but does not require immediate notice. Narrow notice rules could be used to bar claims where workers wait even a few hours. Arbitrary notice rules could also require multiple forms or other technicalities used unjustly to bar claims.
  3. Doctors that are hand-picked by employers and biased. Alabama law already allows the employer (through its workers’ comp insurer) to pick the doctor. However, the injured worker does have some limited ability to change physicians. And, the injured worker can often seek court help when treatment is needed. In an opt out system, employer plans could remove all worker rights over medical care.
  4. Decision-makers that are partial to the employer. In Alabama, trial courts decide disputed claims. That means real courts with real judges decide disputed injury and disability claims. Under an unlimited opt out system, an employer could write a plan that allows it to hand-pick the people deciding claims.
  5. Time limits that eliminate medical care. Unless state law provides protections, an opt out plan could expressly terminate medical care after some arbitrary period of time. An arbitrary cut-off could leave many injured workers without the care needed to heal and return to gainful employment.

Compensation for work-related accidents is important for working families and the communities in which they live. Our benefit system is under constant attack by large employers and insurance carriers who wish to shift the costs of injuries from themselves to impacted families and the government. It is important that we protect working families by preventing the expansion of an opt out system into Alabama.

New Anticoagulants Continue To Raise Safety Issues

Posted in Defective Products, Personal Injury

In September, I discussed new anticoagulants Xarelto and Eliquis. My prior post concludes by noting patients deserve drugs approved only after careful study for safety.

Shortly after that post, the ISMP Quarterwatch also raised issues concerning the safety of new anticoagulants rivaroxaban (Xarelto), dabigatron (Pradaxa), and apixaban (Eliquis). According to Quarterwatch:

The adverse event reports for oral anticoagulants confirm the evidence that long-term use remains one of the highest-risk drug treatments in older patients, with injury rates of 15-20% per year. As previously noted in this publication, bringing a new generation of oral anticoagulants to market based on ease of use rather than improved safety was a major wrong turn. In addition, two of the three novel anticoagulants have pharmacological profiles that raise questions about their simple, unmonitored dosing regimens.

The use of these drugs raises troubling health questions. Risks of personal injury or death due to uncontrolled bleeding, hemorrhaging, and stroke are serious. Because of these risks, adequate safety studies and clinical trials should have been completed before patients were given these medications.