“All great changes are preceded by chaos.”  — Deepak Chopra

The chaos 

Mike Fish

On May 8, 2017, a Jefferson County Circuit Court judge issued an order declaring the Alabama Workers’ Compensation Act to be unconstitutional. It was the judge’s opinion that the statute placing a $220 weekly cap on permanent partial disability awards, and the statute that places a 15% contingency fee cap on legal fees, are both unconstitutional. 

Since the judge found two statutes unconstitutional, it had the effect of declaring the entire act unconstitutional due to a non-severability (all or none) statute. The issue was not appealed, so the constitutionality of the act was never addressed by an appellate court.

While chaos was avoided, the threat of having the entire system scrapped as unconstitutional was enough to put the wheels of change in motion. 

The change

In November 2017, the Alabama State Bar appointed a workers’ compensation task force comprising more than 20 attorneys representing the interests of employees, employers, insurers, self-insured employers, self-insurance funds and the medical community. A state representative, a state senator and a circuit judge also participated.

Since its inception, the task force has been working diligently toward proposed changes that all parties can live with. The following is a list of some of the items that are currently being considered: 

• Regarding medical benefits, there would be presumption that the treatment is not related if there is no treatment for a fixed period. After a longer fixed period of no treatment, there would be a conclusive presumption that it is not related.  Except for catastrophic injuries, medical benefits would be closed after a set period in all cases. After adequate time for assessment from the accident date, there would be a presumption that the injury is not catastrophic.
• Permanent and total weekly benefits would be terminated at a fixed age.
• Employer would likely get the right to choose the pharmacy.
• There would be more restrictive standards for pain management involving opioids.
• Medications would not be sold by prescribing doctors.
• The $220 cap would be adjusted to be a percentage of the state average weekly wage.
• The 15% contingency fee would be raised, but modestly.
• The possible use of a standardized medical form.
• Email communications for claim filing would be allowed. 

The goal is for all parties to agree on a proposed bill prior to the 2019 legislative session. We will continue to report as new information is learned.

Mike Fish is an attorney with Fish Nelson & Holden LLC, headquartered in Birmingham, Alabama. This entry is republished, with permission, from firm's Alabama Workers' Comp Blawg.