Alabama Litigation Review

Alabama Litigation Review

Insights & Commentary on Developments in Alabama Litigation

Chamber of Commerce Hypocrisy on Drug Advertisements

Posted in Defective Products, Personal Injury

The article in The Hill begins:

The nation’s leading business group is mounting a new attack on advertisements run by trial lawyers that tell consumers about the negative side effects from medical drugs and devices.

Let me start — I don’t like modern attorney advertising. Locally in northern Alabama, we have an attorney on television advertising for automobile accident injury cases who refuses to help injured people in court. And, we have outside lawyers running ads for drug cases who are not even licensed in Alabama.

I find most of these ads distasteful. I don’t disagree with the complaints about them. Yet, the Chamber of Commerce’s approach is pure hypocrisy. While attacking television advertisements from lawyers, the Chamber has done nothing to reduce deceptive drug company advertisements. The Chamber is protecting the drug companies who rush deadly and dangerous drugs to market for huge profits. As one attorney noted:

The attack ad [by the Chamber] is really inappropriate primarily because it tries to say ‘let’s keep the real side effects private and doctors will prescribe it.’

Will the fight between the Chamber of Commerce and advertising lawyers heat up? According to the article, the Chamber claims lawyer advertisements related to Xarelto were deceptive and resulted in 30 patients suffering injury when they stopped taking the medication after seeing such advertisements. My question — Why isn’t the Chamber raising questions about the huge number of patients who saw television advertisements from Xarelto’s manufacturer, began taking the drug and then suffered an uncontrolled bleeding injury? Why isn’t the Chamber raising questions about direct advertising from drug manufacturers that understates or completely ignores very serious risks?

We need to examine both sides of drug and medical device advertising. The American Association for Justice (AAJ) responded to the Chamber’s push against lawyer advertising by noting:

the pharmaceutical industry has been fighting for decades to continue advertising and selling their products while doing everything to avoid accountability when those drugs hurt patients.

The Chamber and the manufacturers of defective medical products cannot have it both ways. They want to advertise directly to prospective patients. They want consumers to see ads touting an easy cure with a pill. At the same time, in Alabama and many other states, the manufacturers are protected from liability by the Learned Intermediary Doctrine. Under this Doctrine, a drug maker basically fulfills its duty to warn users of a drug’s risks by warning the prescribing physician. In other words, the duty to warn of dangers by drug makers runs to the doctor not the patient. Should this doctrine still protect drug manufacturers who are making sales pitches directly to the public by television advertisements? I don’t think so. Others have questioned the continued application of this defense as well.

Our system for approving and marketing drugs needs an overhaul. Too many dangerous drugs are rushed to market by manufacturers who know the serious risks but hide the facts from the FDA. Then, the same companies market these drugs directly to consumers by television. That’s wrong.

For drug companies, patients have become numbers instead of people. Unfortunately, some lawyers and marketers seeking volumes of clients have the same view. It’s wrong on both sides. Patients injured by dangerous drugs or defective medical devices need dedicated attorneys to advocate on their behalf.

If you are seeking legal counsel for an injury, ask questions. Will you have an attorney who will talk to you throughout the case? Will you have an attorney who will study your medical records and injuries? Is the attorney you called simply going to refer you elsewhere? Will the attorney stay involved in your case? We do. Has the attorney you called handled these cases? We have. You should be satisfied with the attorney you hire. If you are not fully satisfied, talk to several attorneys before making a decision that could greatly impact your future.

Should Alabama Elect Appellate Judges Differently?

Posted in Personal Injury, Supreme Court of Alabama

A recent lawsuit challenges Alabama’s state-wide method of electing appellate court judges. National Public Radio (NPR) interviewed retired Federal Magistrate Judge Vanzetta McPherson about the lawsuit. McPherson previously served the Federal Court in Montgomery.

McPherson answered questions from the NPR host about the new election lawsuit. Alabama elects appellate judges in state-wide elections. The lawsuit alleges this state-wide process is a violation of the Federal Voting Rights Act. As McPherson explained in the NPR interview, minorities are not currently represented on Alabama’s appellate courts.

I’m not an expert on the Voting Rights Act. I will let McPherson discuss that issue. However, I have long advocated a change to our appellate election system so that judges could be elected by districts rather than state-wide. I wrote a prior blog post which discussed the issue in 2010. I welcome McPherson’s discussion concerning diversity and representation on our appellate courts.

McPherson believes district-based elections will increase minority representation on our appellate courts. I agree a district-based system would make our courts more diverse. I believe elections based on districts would bring several improvements. In my 2010 post titled Three Ideas for Reform In Alabama’s Judicial System, I discussed benefits of electing Alabama Supreme Court justices by district. As I noted:

Alabama voters presently elect the Chief Justice of our Supreme Court as well as all 8 associate justices in statewide elections. On several occasions, proposals have been made to elect the 8 associate justices by district. Does our current system allow a candidate to neglect certain areas of the state and focus on major media areas when running for office? Does it allow a candidate with very little practical experience simply to run an advertising campaign statewide? By focusing on districts, it would seem more likely that the successful candidate had developed a reputation for quality legal skills within their local community. It might lessen the ability of less qualified candidates to gain election through mass advertising efforts aimed simply at building name recognition. Moreover, it could provide local courts in that district with a specific justice who could respond to emergency issues.

Partisan judicial elections already compromise the integrity of our judicial system. Research suggests a significant relationship between political contributions and the decisions of judges in actual cases. Are judges who receive significant contributions biased? Maybe or maybe not. But, the acceptance of huge outside contributions creates a perception of bias. We deserve a judicial system free of bias or perceived bias. In recent decades, Alabama’s judicial elections have drawn substantial partisan financial contributions from parties with cases before the court. This influx of campaign money also allows candidates who lack experience or qualifications simply to run a massive television campaign.

Want the best appellate judges? Local lawyers know the individuals in their field who possess the best legal skills, the individuals with the most trial experience and the individuals with the proper temperament to be appellate judges. District-based elections would increase the likelihood a candidate with peer respect as an outstanding lawyer or jurist, would be elected. District-based elections would also lessen the likelihood a candidate with outside money could simply mount a successful, slick television ad campaign. And, district-based elections might provide needed diversity on our appellate courts from all areas of the state.

While I’m no expert on the Voting Rights Act, I do want my personal injury clients to have a voice in a court system free of outside or partisan contributions. I want appellate judges who tried cases in their communities and understand the trial process. We are asking these judges to make decisions about trials that impact our citizens. It is essential we have a system that is fair for all.

Diversity Jurisdiction: Speculation On The Amount In Controversy

Posted in Federal Courts

I have not discussed Federal court diversity jurisdiction in a long time. Yet, the issue is important for attorneys handling significant injury claims.


Federal courts are courts of limited jurisdiction. Generally, Federal courts have jurisdiction of claims under the U.S. Constitution, treaties and Federal statutes. Federal law provides Federal courts with a type of jurisdiction called diversity jurisdiction. In short summary, Federal Courts have diversity jurisdiction of state law claims where:

(1) the amount in controversy exceeds $75,000; and,

(2) the parties are completely diverse in their citizenship.

Diversity jurisdiction protects defendants of one state from being sued in a “supposedly hostile” local court in another state. Does the idea of local hostility or bias remain valid in our era of travel and commerce? It’s debatable. Whether or not foundational support for diversity jurisdiction remains, the practice remains an important part of our system.

I’ve previously discussed the diverse citizenship requirement as applied to corporate defendants. This is a significant and complex issue as many corporations have operations and offices in multiple states. Today, I’m discussing a specific issue related to the “amount in controversy” requirement. That issue, the misuse of Requests for Admissions by defense attorneys to create an amount in controversy claim.


Some local lawyers only practice in state court. They avoid Federal Court. I feel differently. I believe lawyers specializing in injury and damage claims should understand both Federal and Alabama courts. While the majority of our firm’s cases are in Alabama courts, we do have a significant number of claims in Federal court. And, I’ve had trials in both courts.

Because we handle cases in both forums, local lawyers have retained us to help with their Federal court cases. Typically, the local lawyer will sue a foreign defendant in an Alabama court. Then, the defendant will remove the case to Federal court. Afterwards, the local lawyer will hire us to help.

All our current bad drug and dangerous medical device cases are filed in Federal Court. Why? Because these claims usually involve a foreign manufacturer and no local defendant. They also typically involve a substantial injury or death.


What is a Request for Admissions? One lawyer refers to Requests for Admissions (RFA) on his blog as follows:

Requests for Admissions are sort of the red-headed stepchild of the discovery process.

.  .  .

But RFAs can provide a good avenue in which to firmly establish undisputed facts at trial.

Lawyers use “discovery” to develop their claims. Typically, discovery involves Interrogatories which ask questions that must be answered under oath and Requests for Production which ask the other party to produce documents or items for inspection. Many lawyers neglect Requests for Admissions. Yet, a good RFA can be a very valuable tool to establish facts before trial. An RFA can narrow the actual factual disputes for trial.

Yet, defense attorneys sometimes misuse RFAs in an effort to establish diversity jurisdiction so they can remove a case from a local court to Federal court. How do defense lawyers misuse the RFA process for this purpose? Here are a couple specific requests from our recent cases:

  • Admit that you waive any amount of damages entered in this lawsuit in excess of $75,000.00.
  • Admit that you will not accept any award of damages over $75,000.00 in this lawsuit.

While the amount in controversy can be unclear in some cases. In other cases, it can clearly be less than $75,000.00. Although the controversy may clearly and reasonably involve less than $75,000.00 at this point, nobody would turn down more money should future events change matters. Current facts (which can easily be admitted or denied) and unforeseen future events, are very different. Nobody wants to limit their future actions. That’s why a RFA asking a lawyer to take some future action is improper. When we receive these improper RFAs, we typically respond similar to the following:

Objection. This does not request the admission of an existing fact. This cannot be determined until discovery has been completed, the trial of the matter is heard and a jury award is rendered. Moreover, the intended purpose of Ala.R.Civ.P. 36 is not discovery but to facilitate proof of material undisputed facts. Irons v. LeSueur, 487 So.2d 1352 (Ala.1986); Evans v. Insurance Company of North America, 349 So.2d 1099 (Ala.1977). This supposed “request” attempts to create an obligation of affirmative future conduct by the Plaintiff in the proceedings in this case.

If Federal courts are to remain courts of limited jurisdiction, strategic defense lawyers should not be able to expand jurisdiction arbitrarily. Likewise, strategic defense lawyers should not be able to limit an opponent from unforeseen future acts beneficial to their clients. My guess – most defense lawyers know these requests are improper and hope to catch a plaintiff’s attorney unfamiliar with the law. We have received and objected to these requests multiple times. Only one defense lawyer has challenged our objections. And, that challenge did not end well for the defense attorney. If you are going to represent clients in cases of substantial injuries or damages, you need to understand both Federal and state courts as well as the jurisdictional issues between them.

The Danger Of Distracted Driving

Posted in Personal Injury

Where do I get my blog topics? Usually, I write about legal issues I’m handling. Sometimes, I write about legal issues in the news.

At our firm, distracted driving is a frequent topic. We are currently helping two people seriously injured by a driver who crashed into them at a high speed while searching the song list on her cellphone. We recently helped another client injured by a driver searching through his glove compartment while driving in rush hour traffic. In the last 20 years, the number of injuries caused by distracted drivers has skyrocketed.

Distracted driving is a major safety issue on our roads and highways. Our firm devotes a section of our website to the topic. In that section, we discuss the major types of distracted driving and their causes. I’ve also written a series of posts on the firm’s blog – Alabama Injury Lawyer Blog. These posts discuss several issues related to distracted driving. To learn more, read the following:

Blackwell Law Firm – Distracted Driving

Distracted Driving:  Why Texting Is Especially Dangerous

Distracted Driving:  Much Worse Than Reported

Distracted Driving And Commercial Trucks:  A Deadly Combination

Distracted Driving Shatters Lives

Distracted Driving:  Parents Must Lead By Example

The Blackwell Law Firm is dedicated to obtaining the maximum compensation available for families dealing with an injury caused by a distracted driver. Our firm also believes in reducing distracted driving by educating drivers and discussing available vehicle technology. We welcome a discussion related to distracted driving and highway safety.

Work Comp: Why The Right To Re-Petition Is Important

Posted in Workers' Compensation

A recent workers’ compensation settlement made local news. An Athens city employee fell when a walkway came loose. He suffered significant injuries — requiring surgeries on both knees. He then returned to work at the same or higher pay. While off work receiving medical care, the injured worker received $3,126 in temporary total disability benefits. After returning to work and reaching maximum improvement, he settled for an additional $3,953 in permanent partial disability benefits. That’s a total of $7,079 for an injury which resulted in multiple surgeries.

That does not sound like much. And, it isn’t. Workers’ compensation benefits in Alabama are calculated by formulas. A key factor in deciding what formula applies is — whether or not the injured employee returns to work at the same or greater wage. Where the injured worker does return to work at the same or greater wage, “the worker’s permanent partial disability rating shall be equal to his or her physical impairment and the court shall not consider any evidence of vocational disability.” Alabama Code Section 25-5-57.

What does the statutory language mean? Let’s consider an employee who suffered a bad back injury at work. The employee had spinal surgery. Afterwards, the surgeon placed permanent restrictions on the injured worker preventing significant lifting and many other activities. If the worker is unable to return to his past employment (or similar work), the court can consider evidence of vocational disability — how the injury affects his ability to find gainful work. An employee with significant restrictions may be significantly or totally disabled from work. A severely injured employee could be 100% vocationally disabled. Yet, based on the AMA Guidelines used by doctors, this same injured worker may have only a 5% to 15% impairment rating for his back surgery. So, the difference between considering real vocational disability versus some type of impairment rating can make a huge difference in compensation.

I interview injured workers weekly. Almost all want to return to work. They desire deeply to work. When the employer is willing to take them back despite significant restrictions, it’s a great thing.

The right to Re-Petition provides an essential protection for workers. Sometimes, an injured employee initially returns to work but is unable to continue long-term. Sometimes, employers create temporary positions to keep the employee at work just long enough to settle the case for the lower impairment rating and to avoid paying true disability benefits. When an employer initially accommodates an injury and allows the employee to return to work, it raises these two significant questions:

  1. Is the employee physically able to maintain the employment over time?
  2. Is the job accommodation legitimate or not?

If the injured worker did not have the right to Re-Petition for vocational benefits, it would be a huge injustice. The right to Re-Petition is not limitless. But, it does allow some time to see if the worker can maintain the job. This is a huge benefit to the many injured workers who would much rather try to work than collect benefits.

Yes, some companies really do create temporary, fake positions to avoid paying benefits. Early in my career, I represented a hotel housekeeping employee who suffered a severe back injury. She had major restrictions. After finishing her medical care, she tried for over a year to find employment within her restrictions. She was disabled. Yet, magically, a couple weeks before trial the insurance company “found” her a job at another hotel. It sounded too good to be true because it was too good to be true. And, on cross-examination at trial the hotel manager admitted the insurance company was temporarily paying the employee’s salary only until the case was finished. Then, she would be let go.

Workers’ compensation benefits often treat injured workers unfairly. In many posts on this blog and my law firm blog, I have argued our law does not protect worker safety nor does it justly compensate injured workers. A central purpose of our workers’ compensation law is to help injured workers return to gainful employment. In that regard, it is necessary for the law to encourage both workers and companies by providing this protective right to re-petition for vocational benefits if the worker tries to work but cannot do so.

Alabama Reports Sharp Drop In Uninsured Drivers

Posted in Personal Injury

Back in 2011 and 2012, I wrote several posts discussing Alabama’s problem with uninsured drivers. At that time, Alabama had one of the highest rates of uninsured drivers in the United States. Those posts included:

Alabama’s Mandatory Automobile Insurance Requirement Needs Instant Verification

Update – Alabama’s Mandatory Automobile Insurance Requirement Needs Instant Verification

Instant Verification for Liability Insurance in Alabama Becomes a Reality

Alabama Prepares to Enforce Mandatory Insurance Law for Drivers

I argued for the need to implement an instant verification system for use by law enforcement. Frankly, I had counseled too many clients who suffered a severe personal injury caused by an uninsured driver. And, while Alabama legally required insurance, enforcement was a major problem. It was too easy for drivers to evade responsibility by presenting an old insurance card to the police which could not be verified. What good is a law if offenders can easily evade its requirements? What good is a law without proper enforcement?

I also counseled clients to use uninsured coverage offered in their own policies. Naturally, you want the negligent driver (and his or her insurance company) to provide compensation. However, in many instances the negligent driver had no coverage or too little coverage. In those cases, uninsured coverage on your policy becomes extremely important. It’s an important insurance coverage for your family.

Alabama did enact an instant verification system. And, it provides the much needed ability to enforce our insurance laws. This week Governor Bentley announced a continued (and steep) decline in the number of uninsured drivers on Alabama highways. That’s good news for all of us. An injury from an automobile accident can devastate an entire family.

Work Comp in Alabama: The Vocational Rehabilitation Myth

Posted in Workers' Compensation

Our workers’ compensation system was intended to help restore injured workers — to truly restore injured workers instead of shuffling them through the system. Yet, it has evolved into something far different. Many injured employees and their families suffer as a result. One area of failure is “vocational rehabilitation.”

What does “vocational rehabilitation” even mean in Alabama? The phrase is never fully defined by our workers’ compensation statute. Most lawyers and courts don’t really understand its meaning. And, Courts have limited its practical effect to the point it is rarely helpful to the worker. But, to give some background, this is how one Alabama judge defined the phrase —

The purpose of vocational rehabilitation is not to improve the injured employee’s station in life, but to restore the employee to suitable employment providing an income comparable to that earned prior to the injury.

Why don’t insurance carriers offer real vocational rehabilitation to injured workers? True vocational rehabilitation would provide a great benefit to the worker, his or her family and the community. We all benefit when injured workers are rehabilitated back to productive, gainful work. So, why is it not offered? The answer is cost. The insurance carrier wants to save immediate short-term costs even if the rest of us pay higher long-term costs in lost productivity.

The insurance carrier knows it can avoid its short-term costs of rehabilitation while passing long-term costs to us. How? For vocational rehabilitation to be a valid option, physicians or vocational experts must believe it will help the actual worker in a specific way. But, the insurance carrier controls the choice of physician in Alabama. The carrier picks your authorized treating physician. Although the hand-picked physician is “legally” allowed to provide necessary care for the injury, the insurance carrier still exercises practical control. The carrier still exercises true control by:

  • Maintaining the power to authorize the same physician for future injury cases – greatly affecting the doctor’s continued income
  • Using case nurses to meet with physicians and influence the course of medical care
  • Denying requested treatment which forces the doctor to engage in the administrative “utilization review” process for approval – a process requiring more time and resources than available to the doctor

By using the ability to effectively control treatment, insurance carriers in Alabama have insured that only the minimally required level of care will be provided.

How do insurance carriers often use “vocational rehabilitation” in Alabama? This much is true – most insurance carriers don’t use vocational rehabilitation to help injured workers. Yet, insurance carriers do use the statute for their own cost-saving benefit. The carriers often use the phrase vocational rehabilitation in an effort to avoid paying real disability benefits to injured workers. Here are a few examples:

  • Offering “vocational rehabilitation” on the eve of trial to avoid paying real disability benefits. This is a delay tactic I’ve seen many times. The worst example concerns a case I tried in Birmingham several years ago. The worker suffered terrible head and shoulder injuries. In the three years after his injury he underwent four separate major surgeries. He was left unable to lift anything. During those years of surgeries, the insurance carrier offered no “vocational rehabilitation” and no help putting him back to real work. Literally, on the eve of trial, the carrier’s attorney offered “vocational rehabilitation.” It was a blank offer – no plan, no idea, no details. It was a nothing offer which we refused. However, the defense lawyer convinced the Judge to postpone trial for several months while his insurance carrier attempted to rehabilitate the worker before eventually paying real disability.
  • Offering “fake jobs” and calling it “vocational rehabilitation.” Yes, this really did happen. No, it is not vocational rehabilitation. I represented a worker in Huntsville with severe orthopedic and internal organ injuries. His doctors agreed he was disabled. Yet, a few months before trial, my office started receiving forms indicating job interviews had been scheduled and these employers would provide accommodations. I knew these were not real interviews or real jobs. But, if we did nothing, the insurance lawyers would argue they tried and my client did not. So, I conducted my own interviews of every employer listed on the forms. Every listed business was real. While the listed companies were real, none of them had agreed to employ or accommodate my disabled client. None of them knew anything about the claimed interviews. Apparently, the insurance carrier hired someone who simply used the phonebook to list area businesses.
  • Offering vocational testimony at trial based on rehabilitation never provided. This is the most frequent bad use of the phrase vocational rehabilitation. The insurance carrier has the treating doctor testify as to the expected condition of the worker with a little help from rehabilitation. That’s the level we all hope the worker can reach. Then, the insurance carrier does not provide the rehabilitation to achieve that goal. Instead, at trial the insurance carrier’s vocational expert simply provides the testimony based on the hoped-for level of function. It’s a game. And, it’s a game the insurance carrier hopes the worker’s lawyer does not understand. Unfortunately, many plaintiff attorneys do not understand vocational issues.

Vocational rehabilitation could be a powerful tool to help workers suffering an injury. Vocational rehabilitation should be a valuable part of our system. Yet, in practice it is usually not.

How Lawyers Ruined The Grand Bargain

Posted in Workers' Compensation

I recently finished a workers’ compensation trial in a small north Alabama county. The trial took just one day. It was a straightforward case. The issue was simple — how disabled was my client. In my law practice, I have workers’ compensation trials frequently.

If the case was so simple, why did the defense firm bring 2 law partners and 2 law clerks for a one day trial? Why are four legal minds needed for the task? I’m flattered by the opportunity to face such a large trial team from Birmingham in a one day case. But, I doubt they came just to see me. From my table, it was clearly overkill. One defense attorney did all the work – arguing the case, making the objections, questioning the witnesses, talking with the court. I guess the others were present to carry the file and cheer for him. From my seat at the other table, the extras did nothing.

I’m sure all four legal professionals were billing to attend this trial a couple hours from their office. When I see tactics like this, I’m always curious as to how the defense lawyers justify the extra costs to their client.

These cases are very important. They are very important to my clients who are hurting. I want to win. I’m sure the cases are also important to the insurance companies paying the claims. The problem is lawyers motivated for self-gain over client-interest. In this recent case, the cost-padding by defense counsel started well before trial.

Don’t think I’m just picking on defense lawyers. Their system – hourly billing – lends itself to overkill and inefficiency. However, plenty of plaintiff attorneys put their own financial motive first as well. They just do it differently. With plaintiff attorneys, it usually involves the quickest settlement possible to avoid work. Because of that, you now see plaintiff lawyers advertising for cases when they really are not willing to fight for their clients. That is not right for the clients who need our help.

Workers’ compensation systems were supposed to be part of a “grand bargain.” As part of that “bargain,” employers were largely granted immunity from lawsuits seeking full damages. In exchange, employers were required to provide basic (minimal) benefits to all their employees who suffered an accident or injury on the job.

Yet, the system has changed. And, it has changed in ways that make it more difficult for the injured worker to get the medical care, the rehabilitation or the disability benefits needed. In many ways, the Grand Bargain has been corrupted by legal, insurance and medical firms. Want an example of how medical benefit companies have corrupted the grand bargain for their own gain at worker expense? Read the ProPublica article, All of This Because Somebody Got Hurt at Work. It’s sickening to think that while people hurt and unable to work are trying to get approval for basic care, the benefit managers over their claims are partying like no tomorrow in Las Vegas. The party is a clear example of how much money they are taking from a system needed by these injured workers.

An entire system has been constructed that often places the injured worker last. When a worker is hurt on the job, he or she needs medical benefits. They need those benefits quickly. The quicker the treatment, the higher the likelihood of a good recovery. When a dispute arises as to the level of disability, let’s get to trial as quickly and efficiently as possible. That’s the way it should work. If it did, the court system and the injured workers who need it, would both benefit.

Workplace Safety — Is It A Priority?

Posted in Workers' Compensation

A couple years ago, the Discovery Channel’s Mike Rowe set off a firestorm of commentary on the role of safety in the workplace. Rowe stars in the Discovery Channel show Dirty Jobs. Following one episode a viewer called him out for not wearing proper safety gear. How did Rowe respond? Rowe called the “Safety First” slogan a bunch of “nonsense.” He also responded:

In the jobs I have seen thus far, I can tell you with certainty, that safety, while always a major consideration, is never the priority.

Never. Never, ever. Not even once.

Those are pretty harsh words about safety. Rowe also added:

When a business tells you that they are more concerned with your safety than anything else, beware, . . .

They are not being honest. They are hedging their own bets, and following the advice of lawyers hired to protect them from lawsuits arising from accidents.

What do I think? I do think some companies place a top priority on worker safety. A few do. During my college years, I did summer work at a manufacturing facility near Decatur that closely studied every part of the work to ensure safety. That company did take safety seriously. Yet, many more companies do not. Most do not. Through many years of helping accident victims, I’ve been disappointed far more often than not with true corporate attitudes and motives about safety.

Some companies talk safety. But, that’s all it is — talk. It sounds good. It looks good on paper. It provides a ready defense when an injury occurs. And, it may help the company avoid liability. Yet, real safety takes a back seat to maximum profit production. I’ve seen it throughout my legal career. For the worker who gives so much to his or her job, it’s a terrible injustice. Imagine suffering a disabling injury and then being blamed falsely for it. That scenario is very real for many workers hurt or disabled on the job.

Companies blame workers for a couple reasons. First, a worker who intentionally violates clear rules related to safety or protective equipment can be barred from receiving workers’ compensation in Alabama. Second, a company with a culture of violating or ignoring safety might be subject to penalties by OSHA or other agencies. Of course, both reasons provide strong economic incentives for dishonest executives to blame the person injured.

In past cases, I’ve seen many examples of workers suffering the post-injury insult of being wrongly blamed for the accident. The following are a few examples we’ve encountered:

  1. Missing Personal Protective Equipment. A plant maintenance worker suffered severe injuries due to heavy metal dust exposure. The worker’s job required him to clean ductwork and filters full of metal dust. He developed occupational lung problems and sought workers’ compensation benefits. The company argued he failed to use personal protective equipment (PPE). In this case, the PPE was a respirator. The company even produced a respirator for show in court. Surprisingly, it looked clean and unused (as if just purchased). The company’s respirator defense had a big problem. The company never supplied respirators to its workers! It only had one – in the front office for management. When we started serving subpoenas on workers in the facility, the company quickly paid the workers’ compensation claim.
  2. Fake Safety Awards. The company managed major construction projects. Its website highlighted safety awards received due to zero workplace injuries. The company website painted a glowing picture of safety. But, this company image did not match the complete lack of safety that caused my client’s disabling fall. So, we did some investigating. We discovered numerous workplace accidents and even fatalities. The safety awards and trophies were simply for show. How did this company misrepresent its safety history? The company managed construction projects and oversaw many different workers. Yet, the only people counted by the company for safety purposes were its on-site project managers. The real workers were classified as independent contractors and not considered. It’s easy to tout your safety history when you don’t count the real workers.
  3. Safety Devices That Did Not Exist. A heavy piece of equipment collapsed, crushing my client’s pelvis. He suffered multiple fractures as well as internal organ injuries. He would never return to any work. We filed his workers’ compensation claim. When we did, the employer and its lawyer presented a photograph of a safety device. The employer argued my injured client ignored the device as well as clear instructions to use it. My client remained adamant — He had never before seen the safety device and it was not available at the time of his injury. We believed our client. We investigated and discovered the company was not being honest. The employer had purchased the safety device AFTER the accident. Instead of being honest, the employer and its attorney argued the device was available before the accident. We proved them wrong and won the case. But, that employer and its attorney should have been punished for their dishonesty with the court.
  4. Rules That Did Not Exist. The worker suffered a traumatic brain injury that left him comatose over a week. He would never again work. He would never again live independently. The case should have been simple. The doctors all agreed on his injuries. Yet, the employer’s attorney wanted a trial. So, we gave him one. That attorney claimed the worker intentionally broke a safety rule and should not receive workers’ compensation benefits. At trial, a company supervisor took the witness stand. He testified safety was important. He testified the company had a safety rule that would have prevented the accident. My law partner (who has since retired) cross-examined him hard. And, during that examination, the supervisor finally admitted the company only began enforcing the so-called safety rule, AFTER the accident. The case was won but only after a lot of hard work.
  5. Training That Did Not Occur. The lift collapsed and the worker fell to the concrete floor. The injuries were tremendous. We sued the project manager for not maintaining a safe construction site. Did the defendant offer to help the injured worker? No. First, management argued it held daily safety meetings where the workers were instructed in safety issues that would have prevented the accident. We investigated. Other workers confirmed there were no daily safety meetings. Next, management argued it held a training session related to the lift before putting it to use. Again, the real facts revealed something different. The company provided no training, either in-house or through an outside source. The lift was delivered to the site and put into immediate use without training so that production would not slow.

Is safety a priority? Is it simply an afterthought to avoid liability? How often do companies escape liability with false safety claims? These are important questions in many cases. Working men and women deserve real safety programs that prevent harmful accidents and injuries. When accidents do occur, working men and women deserve better than to be blamed by the same company that refused to place a priority on safety. 

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, …

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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.