Alabama Workers' Compensation Law And Handbook

by Lee, Robert W.; Ford, Steven W.

• ISBN13: 9780327164166
• ISBN10: 0327164166
• Edition: 2nd
• Format: Hardcover
• Copyright: 2004-10-01
• Publisher: Lexis Nexis Matthew Bender

Table of Contents

Table of Contents	ix
Foreword	xxiii
Acknowledgements	xxiv
Introduction	xxv
PART I SUBSTANTIVE LAW
The Historical Development of Workers' Compensation Law in General
Remedies Existing Prior to Workers' Compensation Legislation	3	(6)
Development of Workers' Compensation Legislation	9	(3)
Constitutionality of Workers' Compensation Legislation	12	(2)
Comparison Between Workers' Compensation and Previous Remedies	14	(3)
Legislative History of the Alabama Workers' Compensation Act
In General	17	(1)
The 1936 Amendments	18	(2)
The 1939 Amendments	20	(1)
The 1949 Amendments	21	(1)
The 1957 Amendments	22	(1)
The 1961 Amendments	23	(1)
The 1971 Amendments	24	(1)
The 1973 Amendments	25	(3)
The 1984 Amendments	28	(1)
The 1985 Amendments	29	(1)
The 1992 Amendments	30	(4)
The 1994 Amendments	34	(3)
Covered and Non-Covered Employment
Mandatory Coverage	37	(2)
Elective Coverage	39	(3)
Excluded Coverage	42	(5)
Employer/Employee Relationship
Definitions	47	(1)
Independent Contractors	48	(3)
Multiple Employers	51	(3)
Minors	54	(1)
Aliens	55	(1)
Partners and Corporate Officers	55	(1)
Volunteers	56	(1)
Prisoners and Work Release	56	(9)
Ex parte Bonnie Kay Stewart	59	(6)
Accidents and Injuries Subject to the Act
Definitions	65	(1)
In General	66	(1)
Nonaccidental Injuries: Heart Attack, Exposure, and Stroke	67	(2)
Occupational Disease	69	(3)
Mental and Nervous Injuries	72	(2)
Cumulative Trauma and Latent Injuries	74	(2)
Willful Assault	76	(1)
Hernia	76	(1)
Idiopathic Falls	77	(6)
Ex parte Maida Harris	79	(4)
Arising Out of and in the Course of Employment
``Arising out of'' and ``in the Course of	83	(2)
Activity Being Performed	85	(2)
Travel to and From Work	87	(1)
Dual Purpose	88	(1)
Deviation	88	(1)
Willful Misconduct	89	(6)
6A Gregory A. Beverly v. Ruth's Chris Steak House and State Claims Adjusters, Inc	91	(4)
Causation --- Article 3
In General	95	(1)
''Accidental`` Injuries	96	(4)
''Non-accidental`` Injuries	100	(6)
Preexisting Conditions	106	(3)
Intervening Causes	109	(24)
Ex parte Trinity Industries, Inc	115	(18)
Notice Requirements
In General	133	(1)
Time Limitations for Proper Notice	133	(1)
Written or Oral Notice	134	(1)
Actual or Constructive Notice	135	(2)
Notice Requirements for Medical Treatment	137	(2)
Occupational Diseases --- Article 4
In General	139	(3)
Causation	142	(5)
Notice	147	(1)
Successive Employers	148	(1)
Statute of Limitations	149	(1)
Psychological Conditions	150	(11)
9A Ex parte Roxanne A. Valdez	153	(8)
Medical Benefits
In General	161	(1)
Selection of an Authorized Physician or Surgeon (Panels of Four)	161	(4)
Future Medical Benefits	165	(1)
Incidentals	166	(1)
Refusal of Treatment and Payment of Unauthorized Physicians	167	(2)
Other Providers	169	(1)
Case Management Workers	169	(2)
Independent Medical Examinations	171	(10)
10A Ex parte City of Guntersville and the Municipal Workers' Compensation Fund, Inc.	173	(8)
Compensation Benefits
In General	181	(1)
Average Weekly Wage/Compensation Rate	182	(3)
Temporary Disability	185	(6)
Permanent Disability	191	(13)
Death Benefits	204	(4)
Calculations	208	(5)
Vocational Benefits
In General	213	(2)
Vocational Rehabilitation Limited to Comparable Employment	215	(1)
Vocational Benefits and Scheduled Injuries	215	(8)
Ex parte Beaver Valley Corporation	217	(6)
Defending the Workers' Compensation Claim
In General	223	(1)
Excluded Defenses	224	(1)
Willful Conduct	224	(3)
Intoxication	227	(4)
Misrepresentation	231	(1)
Statute of Limitations	232	(3)
Tolling the Statute of Limitations	235	(2)
Preexisting Injuries	237	(1)
Second Permanent Injuries	238	(3)
Setoff of Benefits	241	(1)
Estoppel	242	(1)
Common Law Defenses	242	(1)
Evaluation of Post-Injury Earnings	243	(1)
Defending an Employee's Right to Reopen	244	(3)
Unusual Circumstances
Multiple/Successive Insurers	247	(3)
Multiple Employments	250	(1)
Multiple Injuries: Successive or Concurrent	250	(7)
Assault	257	(1)
Recreation and Social Functions	258	(2)
Travel to and From Work	260	(5)
Horseplay	265	(1)
Acts of God	266	(3)
Attorney Fees and Costs
In General	269	(1)
Limits on Attorney Fees	270	(1)
Court Approval of Attorney Fees	271	(1)
Lump-Sum Payment of Attorney Fees	271	(1)
Attorney Fees on Medical Benefits Recovery	272	(1)
Attorney Fees and Permanent Total Disability Award	273	(1)
Court Costs and Litigation Expenses	274	(1)
Attorney Fees and Subrogation	274	(2)
Attorney Fees and Setoff	276	(1)
Jurisdictional Conflict Considerations
In General	277	(1)
Out of State Accident	277	(4)
Out of State Employment---Alabama Accident	281	(2)
Effect of Out of State Workers' Compensation Award	283	(1)
Conflict of Law	283	(1)
Multiple State Coverage	284	(1)
Torts and Workers' Compensation
In General	285	(3)
Tort Actions Against Employer---Fraud	288	(1)
Tort Actions Against Co-employees	289	(1)
Definition of Third Party	290	(1)
Tort Actions Against Third Parties	290	(1)
Dual Capacity Doctrine	291	(1)
Retaliatory Discharge	291	(7)
Tort of Outrage	298	(1)
Subrogation	299	(2)
Other Statutory Liability	301	(2)
Administration of Workers' Compensation
In General	303	(1)
Ombudsman Program	304	(1)
Penalties and Criminal Sanctions	305	(2)
Reporting Requirements	307	(2)
Settlements and Commutations	309	(2)
Litigation	311	(16)
Other State and Federal Legislation Relevant to Workers' Compensation
Unemployment Compensation	327	(2)
Social Security Disability	329	(3)
Black Lung Benefits	332	(1)
Railroad Workers (FELA)	332	(1)
Maritime Laws	332	(1)
Interaction of the Americans With Disabilities Act and Workers' Compensation	333	(4)
Bankruptcy	337	(1)
Debt Collection	338	(5)
PART II HANDBOOK FOR WORKERS' COMPENSATION PRACTITIONERS
A. REPRESENTING THE EMPLOYEE
The Initial Interview and Immediate Follow-Up
In General	343	(1)
Client Interview	343	(7)
Immediate Follow-up	350	(2)
Evaluating/Screening the Case	352	(3)
Handling the Claim Without Suit Being Filed
In General	355	(1)
Evaluate Whether Filing Suit Will Ultimately Be Necessary	356	(2)
Monitoring the Claim	358	(5)
Bringing a Claim to Conclusion Without Suit Being Filed
In General	363	(1)
When the Injured Worker Is Approaching Maximum Medical Improvement	364	(1)
Settlement Methods	365	(5)
Once Settlement Is Reached	370	(3)
Filing Suit and Pre-Trial Preparation
In General	373	(1)
Requisites of the Claim	373	(1)
Venue	374	(1)
Procedural Rules Applicable to Workers' Compensation Lawsuit	375	(1)
Discovery and Document Collection	375	(2)
Evaluation	377	(1)
Mediation and Settlement	378	(1)
Pre-trial	379	(1)
Motion to Tax Costs	379	(2)
Trial of a Workers' Compensation Case
Organization and Presentation	381	(1)
Stipulations	381	(1)
Opening Remarks	382	(1)
Worker's Testimony	383	(1)
Lay Witnesses	384	(1)
Medical Testimony	385	(1)
Vocational Expert Testimony	386	(1)
Other Witnesses	386	(1)
Demonstrative Evidence	387	(4)
B. REPRESENTING THE EMPLOYER
General Advice, Initial Evaluation, and Review Without Suit Being Filed
In General	391	(1)
General Advice to the Employer Regarding On-the-Job Injuries	392	(4)
Initial Evaluation and Review	396	(1)
In Conclusion	397	(2)
Handling the Claim Without Suit Being Filed
In General	399	(1)
Evaluate Whether Filing Suit Will Ultimately Be Necessary or Advisable	400	(1)
Monitoring the Claim	401	(6)
Bringing a Claim to Conclusion Without Suit Being Filed
In General	407	(1)
When the Injured Worker Is Approaching Maximum Medical Improvement	408	(2)
Settlement Methods	410	(4)
Once Settlement Is Reached	414	(3)
If Suit Has Been Filed; Pre-Trial Preparation
In General	417	(1)
Developing an Initial Plan of Action	417	(1)
Paper Discovery	418	(1)
Worker's Deposition	419	(2)
Investigation and Surveillance	421	(1)
Medical Deposition	422	(1)
Vocational Experts	422	(2)
Communication During the Litigation Process	424	(1)
Trial of a Workers' Compensation Case
Organization and Presentation	425	(1)
Stipulations	426	(1)
Opening Remarks	426	(1)
Worker's Testimony	427	(1)
Lay Witnesses	428	(1)
Medical Testimony	428	(1)
Vocational Expert Testimony	429	(1)
Other Witnesses	430	(1)
Demonstrative Evidence	430	(5)
C. TOPICS APPLICABLE TO BOTH INJURED WORKERS AND EMPLOYERS
Concluding the Workers' Compensation Case
In General	435	(1)
Settlement Petition and Order	435	(2)
Dismissal of the Case by the Worker	437	(1)
Best Interest Hearings	437	(1)
Benefit Review Conferences	438	(1)
Settlement After a Court Order	438	(1)
Settlement Recapitulation	439	(1)
Closing Future Medical Benefits	439	(2)
Appellate Process
In General	441	(1)
Preparing an Appeal	441	(2)
Perfecting an Appeal	443	(2)
Superseding the Judgment	445	(1)
The Record on Appeal and Briefing Process	446	(2)
Standard of Review	448	(1)
Application for Rehearing and Rule 39(k) Motion	449	(1)
Petition for Writ of Certiorari	449	(1)
Interlocutory Appeals	450	(1)
Mandamus Petitions	451	(1)
Oral Argument	451	(2)
Collecting and Satisfying the Judgment
In General	453	(1)
Employer's Failure to Secure Payment of Compensation	453	(1)
Default Upon Payment of Periodic Payments	454	(1)
Recording of Judgment	454	(1)
Satisfaction of Judgment	455	(1)
Enforcement of Medical Benefits	455	(2)
Issues Warranting Special Consideration
In General	457	(1)
Claims Involving Psychological and Pain Syndrome Care	457	(1)
Potential Tort Claims Arising Out of the On-the-Job Injury	458	(2)
Claims Involving a Return to Work at the Same or Greater Wage	460	(1)
Surveillance	460	(2)
Subrogation	462	(1)
Enforcement of Benefits Post Settlement Petition/Decree	462	(1)
Social Security Issues	463	(1)
Department of Industrial Relations Administrative Regulations	463	(1)
Settlements; Court Approval or Not	464	(1)
Videotaping of Job Activities	464	(11)
PART III FORMS
A. EMPLOYEE FORMS
Initial Interview of Injured Worker	475	(1)
Notice Letter to the Employer	476	(1)
Letter of Representation to Insurance Carrier	477	(1)
Complaint --- General (Sample 1)	478	(2)
Complaint --- General (Sample 2)	480	(2)
Complaint --- Stroke	482	(2)
Complaint --- Occupational Disease	484	(2)
Complaint --- Contact Dermatitis	486	(2)
Complaint --- Carpal Tunnel Syndrome	488	(2)
Complaint --- Death Benefits	490	(2)
Petition for Death Benefits	492	(2)
Petition to Employ Attorney	494	(1)
Order Authorizing Employment of Attorney	495	(1)
Employee's Objection to Employer's Motion to Dismiss When Claim Is Being Paid Properly	496	(2)
Employee's Motion for Default Judgment	498	(3)
Reserved
B. EMPLOYER FORMS
Sample Defense Attorney's Initial Letter to Employer/Insurer	501	(1)
Employer's Answers to Plaintiff's Complaint	502	(2)
Case Evaluation of Employer's Attorney	504	(5)
Employer's First Report of Injury or Occupational Disease	509	(3)
Supplementary Report	512	(2)
Claim Summary Form	514	(4)
[Reserved]
Notice of Compensation Coverage	518	(1)
Notice of Cancellation	519	(2)
[Reserved]
Employer's Notice to Cover Himself/Employees	521	(1)
Employer's Application for Self Insurance	522	(4)
Independent Contractor's Affidavit and Application for Exemption	526	(2)
Partnership Affidavit and Application for Exemption	528	(3)
Sole Proprietor Affidavit and Application for Exemption	531	(3)
Corporate Officer Exemption	534	(1)
Certificate of Exemption From Coverage	535	(4)
Reserved
C. DISCOVERY FORMS
Employee's Request for Admissions	539	(2)
Employee's Request for Production of Documents	541	(2)
Employee's Interrogatories to the Employer (Sample 1)	543	(3)
Employee's Interrogatories to the Employer (Sample 2)	546	(2)
Dependent's Request for Admissions in Claim for Death Benefits	548	(1)
Employee's Request to Videotape Job Duties	549	(1)
Employer's Request for Production of Documents (Sample 1)	550	(1)
Employer's Request for Production of Documents (Sample 2)	551	(2)
Employer's Interrogatories to the Employee	553	(3)
Employer's Interrogatories to the Plaintiff	556	(5)
Reserved
D. MEDICAL FORMS
Letter from Employee Requesting Panel of Four	561	(1)
Employee's Motion for an Authorized Doctor	562	(1)
Employee's Motion for Court to Order Employer to Supply Panel of Four	563	(1)
Employee's Motion for Court to Order Panel of Four	564	(2)
Employee's Motion for Medical Treatment Where Employer Has Denied Recommended Care	566	(1)
Employee's Motion to Find Employer in Contempt for Failure to Pay Medical Benefits	567	(1)
Medical Authorization Form --- HIPAA Compliant	568	(2)
HIPAA Order in Workers' Compensation Action	570	(1)
Physical Capacities Evaluation	571	(2)
Clinical Assessment of Pain	573	(3)
Checklist for Doctor's Testimony --- Employer or Employee	576	(5)
Maximum Medical Improvement Letter To Physician	581	(4)
Reserved
E. MEDIATION/SETTLEMENT FORMS
Mediation Outline for Employee's Attorney	585	(1)
Settlement Hearing Checklist for Employee's Attorney	586	(1)
Settlement Petition and Order Closing Compensation Benefits and Vocational Benefits, and Leaving Open Future Medical Benefits	587	(5)
Settlement Petition and Order Closing Compensation Benefits and Leaving Open Vocational Benefits, Medical Benefits, and Rights Under the Return to Work Provision of Ala. Code § 25-5-57(a)(3)i	592	(4)
Settlement Petition and Order Closing All of Employee's Rights Under Workers' Compensation Act, or Otherwise	596	(3)
Settlement Language Preserving Third Party Claims	599	(1)
Settlement Language Protecting Social Security Benefits (Sample 1)	600	(1)
Settlement Language Protecting Social Security Benefits (Sample 2)	601	(1)
Settlement Language Preserving ADA Rights	602	(1)
Mediation Summary	603	(2)
Petition and Order Amending Previous Settlement to Close Medical Benefits	605	(2)
Checklist for Employer's Attorney for Settlement Hearing of Pro Se Employee	607	(2)
Motion for Mediation Order	609	(1)
Memorandum Agreement	610	(1)
Judge's Checklist	611	(1)
Workers' Compensation Settlement Sheet	612	(2)
Motion to Tax Penalty	614	(3)
Reserved
F. TRIAL RELATED FORMS
Stipulations Checklist for Trial	617	(1)
Plaintiff's Motion to Tax Costs to Defendant	618	(1)
Sample Direct Examination of Injured Worker	619	(2)
Direct Examination of Plaintiff's Vocational Expert	621	(2)
Sample Trial Court's Order Allocating Subrogation Credit in Workers' Compensation Judgment	623	(7)
Satisfaction of Judgment	630	(1)
Employee's Petition to Reopen Pursuant to Ala. Code § 25-5-57(a)(3)i	631	(4)
Reserved
G. APPEAL FORMS
Docketing Statement	635	(2)
Notice of Appeal	637	(2)
Transcript Purchase Order	639	(8)
Reserved
PART IV TABLES AND MEMORANDUMS
A. TABLES
Table of Present Values	647	(25)
1980 Commissioners Standard Ordinary Mortality Table (Simplified)	672	(5)
Tables of Mortality Rates and Life Expectancies (In Years)	677	(8)
Reserved
B. Memorandums
Average Weekly Wage	685	(1)
Mileage Reimbursement	686	(1)
Deduction of Temporary Partial Compensation From Permanent Partial Settlement (Inquiry)	687	(1)
Deduction of Temporary Partial Compensation From Permanent Partial Settlement (Answer)	688	(3)
Reserved
Table of Cases	691	(14)
Table of Statutes	705
Index	1