Alabama Litigation Review : North Alabama Personal Injury Lawyer & Attorney : Jeff Blackwell : Hornsby, Watson, Hornsby, Blackwell & McKown Law Firm : Commercial Litigation, Workers' Compensation : Huntsville, Decatur, Athens

Back in February, I wrote about Alabama's mandatory automobile insurance requirement and the need for instant verification.  Too often, people on Alabama's roads suffer devastating injuries due to the negligence of uninsured drivers.  A system of instant verification could reduce the number of uninsured drivers endangering the lives of others on our highways.

This afternoon, WSFA News ran a story highlighting the problem and this potential solution.  It is well worth a few moments of time to read the WSFA story.  According to the story, the bill introduced by Sen. Arthur Orr has passed our state senate but is still pending in the state house.

Here is an interview of Sen. Arthur Orr where he also discusses this proposed legislation:

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While sitting in court on a recent workers' compensation case, I started to think about all the reasons someone calls an attorney after suffering a significant work-related injury.  For me, former clients are often the best source of referrals.  However, I'm not talking about why the caller chose a particular attorney.  Set aside referrals and marketing for a moment.

I am talking about why the injured person even decided to consult an attorney at all.  Sometimes, the injured person feels they need some general legal advice in light of their situation.  That's often a good idea.  A significant injury presents many issues that can be helped by competent advice.  Most personal injury attorneys will provide a free consultation.

Aside from general advice, what are some of the most frequent problems encountered by injured workers that lead them to call an attorney?  I can think of many common problems that lead to such a call.  Here is a list of a few of the most frequent reasons I hear:

1. The Preexisting Condition Denial -- The insurance carrier denied my workers' compensation claim because I have a preexisting condition.
2. The No Settlement Unless You Close Medical Benefits Refusal -- The insurance carrier refuses to discuss my claim or negotiate any settlement with me unless I give up all rights to medical care for my injuries.
3. The Company Doctor is a Bad Doctor Problem -- The insurance carrier has provided me with a doctor.  However, he won't treat my injuries; won't listen to me, etc..  If the provided doctor wants to care for me, then the carrier won't approve his treatment; denied his request for specific treatment; tried to make me change doctors, etc..
4. The My Case is Only Worth That Shock -- The insurance carrier has provided an offer.  However, it is extremely small and the carrier has insisted it is all I am entitled to receive under Alabama law.
5. The You Did Not Give Us Proper Notice So We Don't Accept Your Claim Excuse -- The insurance carrier claims I did not provide notice of my accident as Alabama law requires and refuses to do anything.

I have written previously about the impact of preexisting conditions on a workers' compensation claim.  That excuse, like the others, is often not a reason to deny or refuse a claim.  For example, in Alabama, you cannot be forced by the carrier simply to give up your rights to medical treatment.  While some attorneys routinely let their clients give up medical rights, I typically do not.  The security of getting treatment for a significant injury is too important simply to give away.  At least, that's how I feel about the issue.

As for problems with the authorized physician or "sticker shock" over a low offer that the carrier insists is all you are entitled to receive, those are common and complicated issues.  You do have to seek care with the doctor chosen by the carrier.  However, there are legal avenues you can take to change or challenge the situation where you cannot get good medical care.  Alabama law provides some methods to change doctors or get a panel of alternative doctors.  Also, you can seek court intervention if the carrier is simply refusing to approve recommended care from a doctor who is trying to help you. 

As for low settlement offer shock, Alabama law does provide only limited benefits based on certain calculation methods.  While I am sure some may disagree with me, I believe that Alabama law fails to provide sufficient benefits.  That is why it is so important to understand how benefits should be calculated so that you can obtain what the law does allow.  However, the carrier will often use the lowest method of calculating benefits.  In many cases, the benefits really owed can be very different.  As an example, in many cases, you are entitled to be compensated based on your vocational disability (the impact of the injury on the number or amount of jobs you can now no longer perform).  Yet, carriers will typically only offer injured workers a settlement calculated upon the usually much, much lower number assigned as a physical impairment rating.  If you don't understand how calculations based on a vocational disability or impairment rating are determined, you are not alone.  Many attorneys don't have a good grasp of these terms or the methods of calculating benefits.  You can bet that the claims adjusters working for the insurance carrier do understand them and will often offer the lowest method of calculating benefits.  So, you better seek advice from someone who fully understands the calculations as well.

Notice of your accident can also be a complicated issue.  The requirement of notice can be met in a variety of ways.  It is not always the clear bar to a claim that the carrier would lead you to believe.

These issues can be complex.  They are too complex to discuss together in detail in this one post.  You should not simply accept a denial without consulting a professional in this complicated area of law. 

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It's a scenario repeated frequently by callers to our office.  First, the caller tells us that he suffered a work-related accident and injury.  Then, the caller tells us that the workers' compensation carrier has simply denied his claim on the basis he had a "pre-existing" injury or condition.  Often, these denials involve some prior injury that occurred years ago or some prior condition that did not prevent the person from working his current job.

How does Alabama's Workers' Compensation Act treat the issue of "pre-existing" conditions?  Although I learned long ago that every case presents unique facts and issues, here are two general principles in Alabama:

1. A pre-existing condition that did NOT affect the employee's work performance before the disabling injury is generally NOT considered a pre-existing condition under Alabama's Workers' Compensation Act.
2. An employee is not prevented from collecting workers' compensation benefits even though the worker has a pre-existing condition, if the employment aggravates, accelerates, or combines with, a latent disease or infirmity to produce disability.

Alabama's workers' compensation laws are complex with different issues and standards for different types of injuries.  The Act treats accidental injuries, repetitive trauma injuries, and occupational diseases, differently in many ways.  However, these two principles are important to keep in mind.

If the insurance carrier claims your condition is "pre-existing" there are several things you can do.  First, don't simply accept a denial if you were previously able to work your job.  Second, if your claim has progressed to a lawsuit, then your attorney can and should seek discovery on this issue.  Your employer often possesses numerous documents that would support your case.  These documents can include time sheets and work calendars which can be used to show you worked a full schedule.  They can include performance reviews and production reports which can be used to show your work performance was excellent.  Witnesses such as co-workers can also testify that you fully performed your job prior to the injury.  In my practice, I typically depose my client's supervisor in an effort to get an admission on this topic.

Alabama's workers' compensation laws are not intended to protect just those few who enjoyed perfect health prior to their work-related injury.  Instead, our laws were intended to protect all workers by providing necessary medical care and a base level of benefits.  As a result, if you were able to perform your job prior to suffering a work-related injury, don't simply accept a blanket denial of your claim.

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This morning, the workers' compensation attorney Jon Gelman had an interesting note on his blog about a recent Medicare recovery case filed here in Alabama.  Essentially, the case involves the United States seeking to recover medical payments made by Medicare on behalf of several injured individuals.

The case raises an often misunderstood and complicated issue that we must handle on a daily basis.  Most often, our clients have some type of health coverage that pays their medical bills.  For many, this coverage is provided by private insurance such as Blue Cross.  For others, coverage may exist through some type of government program such as Medicare, Medicaid, or the Veterans' Administration.  Normally, when we seek medical care our particular coverage provides some level of payment.  Typically, this is the end of the story.  However, each of these plans or programs possesses unique rights to be reimbursed for their payments if an injured individual then recovers for their injuries from some third party, such as a personal injury lawsuit recovery.

Many personal injury attorneys seem to focus exclusively on the value of their case from the perspective of what amount of verdict or settlement can be obtained from the responsible defendant.  Personally, I believe that every case should be prepared for trial, rather than simply a settlement, from the beginning.  While this should be the most important focus of an injured person's legal counsel, it should not be the sole focus.  Too often, legal counsel ignores the complicated issues of medical reimbursement and subrogation.  Each particular type of coverage brings unique recovery rules and rights to the table.  These recovery rights are probably the greatest with Medicare.  In the case of Medicare, the government has far reaching rights to pursue claims against not only the injured party, but also, their legal counsel and the original personal injury defendant.  In the case of Medicare, as opposed to a typical private plan in Alabama, those rights even extend to future medical costs.

Effective legal representation in personal injury cases requires an attorney to understand the complex web of subrogation law and to deal effectively with the specific providers.  This is important to avoid a negative action by the coverage provider such as a lawsuit or a future refusal to provide benefits.  Also, if counsel clearly understands the various rules and how to use them, he can often work a resolution that minimizes any reimbursement, and thus, maximizes the recovery ultimately provided to the injured individual.

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