Alabama Litigation Review

Alabama Litigation Review

Insights & Commentary on Developments in Alabama Litigation

Are Hernia Mesh Products Causing Personal Injury?

Posted in Defective Products

Hernia Repair Surgeries Are Common

Hernia repair surgeries are among the most common surgeries in the United States. More than a million of these surgeries are performed each year in this country. Hernia repair surgeries can be performed with or without the implantation of mesh. As with mesh used in some other repair surgeries, the question becomes – do the benefits of using hernia mesh for the patient outweigh the risks?

For the last several years, our firm has represented numerous Alabama women injured by transvaginal mesh implants. While that use of implanted mesh involves different issues, the same question arises – is the potential benefit really worth the risks? After years of representing numerous women hurt by implanted transvaginal mesh as well as studying those products and their history, I believe the risks of injury are far too great. Yet, these transvaginal mesh products were approved through the faulty FDA 510(k) process which puts dangerous products on the market without adequate clinical testing. This faulty process has allowed many dangerous and defective medical devices to harm patients across the United States. I could speak at length about our prior work with transvaginal mesh but let me return to the separate topic of hernia mesh.

Why do surgeons use hernia mesh? Surgeons use hernia mesh because hernias have a significant rate of recurrence. Implanted mesh reduces the rate of recurrence and the need for further hernia repairs. So, that’s the potential benefit. Does it outweigh the risks? Mesh complications can be very serious for the patient. Complications from hernia mesh can cause tremendous pain and even disability. According to the U.S. Food and Drug Administration (FDA), the most commonly reported complications for hernia repair surgeries, include:

  • Pain
  • Scar-like tissue that adheres
  • Infections
  • Intestinal blockages
  • Perforations
  • Bleeding

Those are pretty bad complications. They can cause chronic problems in the patient.

Hernia Repair Mesh Products Are Now Being Investigated

Through the years, several hernia mesh products have been used surgically in patients. Now, questions are being raised about two of these products and the potential personal injury they may cause. Both of these mesh products (like so many other dangerous products) received market approval through the faulty FDA 510(k) process.

Atrium C-Qur Hernia Mesh

Atrium first introduced its C-Qur mesh in 2005. Since then, Atrium has introduced several different C-Qur mesh products. All of the C-Qur products are a polypropylene mesh. They contain an outer coating of gel made from Omega 3 fatty acids (otherwise known as Fish Oil).

Patients across the United States have reported problems after hernia repair surgeries using C-Qur mesh implants. Patients and their physicians have raised issues and complaints including:

  • Significant rates of infection
  • Chronic pain, including abdominal pain
  • Perforation of organs
  • Adhesions
  • Inflammatory and allergic reactions

With the increase in adverse reaction reports, some legal commenters are closely watching developments. From experience with separate products marketed through the FDA’s 510(k) process without adequate pre-market clinical testing, I believe it sometimes takes years for problems to come to light. This faulty process allows medical device makers to test their products on innocent and unsusptecting people. That’s terrible. Patients deserve better.

Ethicon Physiomesh

Ethicon is a subsidiary of Johnson & Johnson. The company introduced Physiomesh in 2010. Physiomesh is also a polypropylene mesh product.

In May of 2016, Ethicon announced a global withdrawal of Physiomesh. That is, Ethicon decided to remove the product from markets across the world. Ethicon refuses to use the term “recall” for its action. Regardless, the question becomes – Why did Ethicon suddenly pull its product from markets across the globe? Ethicon pulled its Physiomesh product after an analysis of data from two large European databases indicated an association with much higher rates of recurrence from Physiomesh than other mesh products.

Ethicon has announced it will not sell Physiomesh in the future. With data potentially surfacing about significant problems, that’s probably a wise decision. Yet, that decision does not help the large number of patients already implanted with the product. How does Ethicon intend to help these patients if they are suffering problems or complications?

Investigating Potential Defects and Patient Injuries

Blackwell Law Firm is investigating both of these hernia mesh products. We believe problems with these products are just beginning to surface. We will continue to research both products, including the materials and design of them. You can read more about the products we are investigating on the Hot Topics section of our firm website. We are also available to answer any questions.


Settlement Paperwork: Don’t Expose An Injured Client To More Harm

Posted in Personal Injury

Settlement Terms Are Important

A recent LinkedIn conversation about settlement terms raised an important issue. The topic — A defendant adds additional (and unacceptable) terms to a release document.

Lawsuit Release

The issue is far too common. Here’s the scenario. The lawyers agree to settle an injury claim. Maybe the lawyers reached a settlement informally and confirmed it with letters or emails. Maybe the lawyers reached a settlement through mediation. Where that occurs, the mediator typically has the parties sign a short settlement memorandum with the basic terms. In both situations, the defendant paying money to a plaintiff will typically require a “general release” of the claims. And, the defense attorneys will prepare or provide this release when the settlement is paid. That’s fine. An injured plaintiff receiving compensation will certainly release or give up his/her claims upon payment.

Yet, far too many defense lawyers stick additional terms in these “release” papers. In essence, the release becomes a much more extensive contract creating potential liability. How many injury attorneys ignore additional and unacceptable terms? How often do these attorneys expose their injured clients to the potential of future liability? It happens far more often than you think. Face it, many mass advertising lawyers spend zero time protecting their injured clients from more harm. When an attorney appears on television in a cape and does not appear in court, it’s a safe bet he or she is not reading settlement paperwork to protect the client. These lawyers advertising fast checks for people in wrecks make the quickest settlement possible. They don’t advocate for maximum compensation. They don’t negotiate costly medical liens to save the client money. And, they don’t read or review settlement paperwork that can create future problems. That’s wrong.

A Lawyer Who Advocated For His Client

The LinkedIn discussion involved a recent Florida workers’ compensation case. Here is the short version of the case — The parties reached a settlement at mediation. At that time, they signed a short agreement. This mediation agreement required the injured plaintiff to sign a “general release” and “resignation” of her employment. The final release and resignation document would be prepared by the defendant. So far, nothing is unusual. The injured plaintiff gets paid and signs a general release of her claims. Plus, here the plaintiff would also resign her employment upon receiving payment. For a number of reasons, the parties to workers’ compensation claims sometimes agree to employment termination at the time of settlement. Again, nothing is unusual about that.

The problem began when the injured plaintiff’s attorneys received the final paperwork — the “general release” and “resignation.” This final paperwork was much more extensive. The defendant’s attorneys had added broad indemnity language. This language actually gave the defendant rights to sue the injured plaintiff in many future situations. So, instead of receiving money and dropping claims, the injured plaintiff was now actually promising to pay the defendants upon certain contingencies. The lawyer for that injured party did the right thing. He refused to sign the paperwork and filed a motion to enforce the mediation settlement. On appeal, the court agreed with him.

Negotiate Specific Terms In Advance

The truth is — some cases do have issues beyond a simple payment and simple release of claims. If they do, the time to discuss these issues is during settlement negotiations. For example, in car wreck cases the injured person may have liens or subrogation claims against them by medical providers. A defendant who pays money for the car wreck may want assurances the injured plaintiff’s counsel will handle those liens so no medical providers file lawsuits. We frequently handle car accident claims and understand that issue. But, you don’t want a defendant adding potential indemnity claims for a host of unrelated issues. Another example relates to confidentiality clauses in settlement paperwork. Some cases involve issues that the parties wish to remain confidential. That’s fine. But, confidentiality needs to be discussed during settlement negotiations for a couple reasons. First, confidentiality provisions can create tax issues. Second, between the time of the initial agreement and the final paperwork containing the surprise confidentiality clause, the parties or their counsel may have told numerous people about the settlement.

If you need a personal injury attorney, seek experienced counsel. Seek an attorney who knows a courtroom. Seek an attorney who will work hard in every phase of your case. Our firm carefully reviews the settlement paperwork for all clients. We consider this an essential part of helping and protecting our clients.

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.