Thursday, May 23, 2013

AL Needs Comp Modernization

An Alabama appellate court was pitched the troubling conundrum of who pays for an industrial injury pending a resolution of liability between two different employers - and whiffed.

Apparently there is no law in Alabama directing what would seem to be a relatively common problem.

In the meantime the injured worker ends up facing the same sort of delays one would have faced without workers' compensation in place.

In Office Max Inc. v. Academy, No. 2110861 and Office Max v. Richey, No. 2110862, 05/17/2013, Sandra Richey filed a civil suit against her employer, Office Max, alleging that she had suffered injuries to her knees in 2002 and to her shoulders in 2005, during the course of her employment.

On three occasions – in June 2008, March 2010 and July 2010 – Richey requested the issuance of orders directing Office Max to provide her with medical care from the treating physician it had authorized.

Trial judges granted each of her requests.

In arguments presented to the trial court at a hearing on Richey's second request, Office Max pointed out that Richey had left and taken a job with Academy Ltd. Office Max contended that this subsequent employment had caused or contributed to Richey's knee and shoulder problems and so Academy should be held liable for her benefits.

Office Max then filed a motion, which was granted, to implead Academy as a party (implead is simply adding another party to a civil case to adjudicate liability).

Academy moved for summary judgment in its favor on Office Max's claim that it should be liable for Richey's benefits, stating that any injuries Richey might have sustained in the scope of her employment with Academy were merely recurrences of injuries she had originally sustained in the course of her work for Office Max.

A trial judge granted Academy's motion and granted Richey's FOURTH (emphasis added) motion to compel Office Max to pay for additional medical care.

Office Max appealed both decisions and the appeals were consolidated by the Court of Civil Appeals.

The court found that summary judgment in favor of Academy was improper because even Ritchey's treating physician said that her employment with Academy may have contributed in some part to her condition.

Presiding Judge William Thompson in a concurring opinion agreed that the summary judgment had to be reversed, but he wanted to highlight the problem Richey was having in obtaining medical care.

"There needs to be a rule of law, preferably a statutory one, that enables an employee situated like the one in this case, where the injuries are compensable and there is a question only as to which employer is liable for the benefits, to obtain necessary medical treatment as expeditiously as possible while the two employers litigate who is ultimately responsible for payment of the medical benefits," he opined. "I encourage our legislature to amend the Workers' Compensation Act...and to grant a trial court, in cases involving disputes where two or more employers are potentially liable for benefits for one or more compensable injuries, the authority to order each employer to pay a proportionate share of the employee's medical expenses pending a final determination of liability or, especially in cases involving application of the 'last-injurious-exposure rule,' to order the employee's former employer to pay the medical expenses pending a final determination of liability."

Reform is in the air and a number of states have passed substantial changes to their systems this past legislative season.

Alabama's lawmakers can easily deal with this issue by allowing the injured worker to make an election and then let the employer/defendants battle out the liability apart from the injured worker's claim.

Workers' compensation is supposed to be about providing medical treatment and indemnity to injured workers efficiently, expeditiously and without question of negligence or liability. Failure to direct who pays for what in the pendancy of a dispute between employers obstructs this mandate.

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