DEFINITIONS

Employer

The term employer is defined in Ala. Code§ 25-5-1(4) as ““Every person who employs another to perform a service for hire and pays wages directly to the person. The term shall include a service company for a self-insurer or any person, corporation, copartnership, or association, or group thereof, and shall, if the employer is insured, include his or her insurer, the insurer being entitled to the employer's rights, immunities, and remedies under this chapter, as far as applicable. The inclusion of an employer's insurer within the term shall not provide the insurer with immunity from liability to an injured employee, or his or her dependent in the case of death to whom the insurer would otherwise be subject to liability under Section 25-5-11. Notwithstanding the provisions of this chapter, in no event shall a common carrier by motor vehicle operating pursuant to a certificate of public convenience and necessity be deemed the "employer" of a leased-operator or owner-operator of a motor vehicle or vehicles under contract to the common carrier.”

When determining whether an employer-employee relationship exists, the courts will look to whether the purported employer has reserved the right to control the manner in which the worker performs the duties of the work. Susan Schein Chrysler Dodge, Inc. v. Rushing, 77 So. 3d 1203, 1208 (Ala. Civ. App. 2011)

Statutory Employer

The term “statutory employer” does not appear in the Alabama Workers’ Compensation Act. Alabama’s courts, likewise, have not used the term “statutory employer” except in reference to the immunity provided by the Alabama Workers’ Compensation Act

Employee or Worker

Employees or workers are defined by statute Ala. Code § 25-5-1(5) provides that employee or worker shall “include every person in the service of another under any contract of hire, express or implied, oral or written, including aliens and also including minors who are legally permitted to work under the laws of this state…”

Borrowed Servant

“When a general employer lends an employee to a special employer, the special employer becomes liable for workmen's compensation only if '(a) the employee has made a contract of hire, express or implied, with the special employer; (b) the work being done is essentially that of the special employer; and (c) the special employer has the right to control the details of the work. When all three of the above conditions are satisfied in relation to both employers, both employers are liable for workmen's compensation.'“ Pinson v. Ala. Power Co., 557 So. 2d 1236, 1237 (Ala. 1990)

Independent Contractor

As a general rule, independent contractors are not covered under the Alabama Workers’ Compensation Act. However, the test in determining whether an individual is an independent contractor or employee is the “right of control” test.

When determining whether an employer-employee relationship exists, the courts will look to whether the purported employer has reserved the right to control the manner in which the worker performs the duties of the work. Atchison v. Boone Newspapers, Inc., 981 So. 2d 427, 431 (Ala. Civ. App. 2007). Susan Schein Chrysler Dodge, Inc. v. Rushing, 77 So. 3d 1203, 1208 (Ala. Civ. App. 2011)

The factors to be considered in determining whether an individual or an entity has retained the right of control include: (1) direct evidence demonstrating a right or an exercise of control; (2) the method of payment for services; (3) whether equipment is furnished; and (4) whether the other party has the right to terminate the employment. See Ex parte Curry, 607 So. 2d 230 (Ala. 1992)." Susan Schein Chrysler Dodge, Inc. v. Rushing, 77 So. 3d 1203, 1208 (Ala. Civ. App. 2011)

Exclusions

The Alabama Workers’ Compensation Act does not normally apply to Employers of (1) domestic employees, (2) farm labor, (3) casual employees, (4) employers of less than five employees in any one business, or (4) municipalities having a population of less than 2,000. Ala. Code§ 25-5-50

EXCLUSIVE REMEDY

General Rule

The Alabama Workers’ Compensation Act is the exclusive remedy available to employees who sustain work-related injuries, illnesses, or diseases. Ala. Code§ 25-5-52 and 53 set forth the immunity provision for accidents and Ala. Code § 25-5-113 and 114 set forth the immunity provision of occupational diseases.

"The intent of the Legislature is to provide complete immunity to employers and limited immunity to officers, directors, agents, servants or employees of the same employer and to the workers' compensation insurance carrier and compensation service companies of the employer or any officer, director, agent, servant or employee of such carrier or company and to labor unions and to any official or representative thereof from civil liability for all causes of action except those based on willful conduct and such immunity is an essential aspect of the workers' compensation scheme." Ex parte Progress Rail Servs. Corp., 869 So. 2d 459, 465 (Ala. 2003). See also Ala. Code § 25-5-14.

Exceptions

Exceptions to the exclusivity provision of the Alabama Workers’ Compensation Act have been carved out for the following:

(1) the tort of outrage (Garvin v. Shewbart, 442 So. 2d 80 (Ala. 1983)),

(2) intentional fraud (Lowman v. Piedmont Executive Shirt Manufacturing Co., 547 So. 2d 90 (Ala. 1989)), or

(3) to "an employer's wrongful conduct [that] ... injures an employee's unborn child" (Namislo v. Akzo Chems., Inc., 620 So. 2d 573, 575 (Ala. 1993)).

The Alabama statute also contains a very narrow exception allowing certain claims to survive against co-employees. Co-employee liability is discussed in Ala. Code § 25-5-11.

Before 1985, co-employees and workers' compensation carriers could be civilly liable for personal injuries caused by their negligence or wantonness. In 1985, the legislature passed Act No. 85-41, which amended the Alabama Workers’ Compensation Act to bar claims against co-employees and workers' compensation carriers based on negligence or wantonness. Under Act No. 85-41, a co-employee or workers compensation carrier is liable only for willful conduct that results in injury or death to the employee. Barron v. CNA Ins. Co., 678 So. 2d 735, 737-38 (Ala. 1996)

JURISDICTION AND LIMITATIONS OF ACTIONS

General Rule

The Alabama Workers’ Compensation Act generally extends jurisdiction broadly to any employee who physically sustains a work injury in Alabama. 2 Terry A. Moore, Alabama Workers' Compensation § 30:32. Moore notes that Ala. Code § 25-5-35 “implies that all in-state injuries are covered”.

Courts

Alabama Circuit Courts have jurisdiction over workers’ compensation claims brought under the Alabama Workers’ Compensation Act. Ala. Code § 25-5-88. Alabama does not have a workers’ compensation tribunal. Cases are tried before the same judges that preside over criminal and civil actions and are governed by the same rules of civil procedure and evidentiary rules as civil actions.

Extraterritorial Jurisdiction

Injuries sustained outside of Alabama may be covered by the Alabama Workers’ Compensation Act.. The Act applies to injuries occurring outside the state of Alabama in the following instances:

(1) His employment was principally localized in this state;

(2) He was working under a contract of hire made in this state in employment not principally localized in any state;

(3) He was working under a contract of hire made in this state in employment principally localized in another state whose workmen's compensation law was not applicable to his employer; or

(4) He was working under a contract of hire made in this state for employment outside the United States. (Ala. Code § 25-5-35(d)) (See also Ex parte Tri-State Motor Transit Co., 541 So. 2d 557 (Ala. Civ. App. 1989), Morrisette v. Fluor Corp. (Ex parte Fluor Corp.), 960 So. 2d 701 (Ala. Civ. App. 2006))

Time Limitation

Alabama has time limitations for notice of an accident, discovery of an occupational disease, filing of suit. Written notice of a job-related injury is required so that an employer can make a prompt examination, provide proper treatment, and protect itself against simulated or exaggerated claims. (Ex parte Brown & Root, Inc., 726 So.2d 601 (Ala. 1998)). Although the statute requires written notice, actual knowledge has been deemed to suffice where the employer learns that the employee has sustained an accidental injury in the course of employment. (Ex parte Singleton, 6 So.3d 515 (Ala. 2008)).

5 Day Notice Rule

An employee is required to give written notice of an accident within 5 days. Ala. Code § 25-5-78. Alabama’s courts eliminated the written notice requirement if the employer had actual notice. (Goodyear Tire & Rubber Co. v. Long, 31 So. 3d 715 (Ala. Civ. App. 2009)). Failure to provide notice within five (5) days of the accident bars the employee from recovery of benefits from the date of accident until the date of notice, unless the employee shows good cause for the failure. Goodyear Tire & Rubber Co. v. Foreman, 551 So.2d 409 (Ala. Civ. App. 1989). “Good cause” includes physical or mental incapacity and fraud.

90 Day Notice Rule

Ala. Code § 25-5-78 also contains a notice provision that actually has teeth. It states that “notwithstanding any other provision of this section, no compensation shall be payable unless written notice is given within 90 days after the occurrence of the accident or, if death results, within 90 days after the death.” (Wal-Mart Stores v. Elliott, 650 So. 2d 906 (Ala. Civ. App. 1994))

Statute of Limitations

Accidents

Workers' compensation claims for injuries resulting from work-related accidents must be brought within two years of either: 1) the accident or 2) the date of the employer's last voluntary payment of compensation benefits resulting from the accident. If a claim is not filed before the applicable period expires, the claim is barred by the statute of limitations in the Act. Ala. Code 1975, § 25-5-80.

Death Claims

In case of death, all claims for compensation shall be forever barred unless within two years after death, when the death results proximately from the accident within three years, the parties shall have agreed upon the compensation under this article or unless within two years after the death one of the parties shall have filed a verified complaint as provided in Section 25-5-88. Ala. Code 1975 § 25-5-80; White v. Riley Constr., Inc., 745 So. 2d 877 (Ala. Civ. App. 1999)

Occupational Diseases

The date of the injury in an occupational disease case other than those involving radiation exposure or pneumoconiosis is the "date of the last exposure to the hazards of the disease in the employment of the employer in whose employment the employee was last exposed to the hazards of the disease. Ala. Code 1975, § 25-5-117; Edmonds Indus. Coatings, Inc. v. Lolley, 893 So. 2d 1197, 1206 (Ala. Civ. App. 2004). For purposes of pneumoconiosis and radiation, "the date of the injury" shall mean the date of the last exposure to the hazards of the disease in the employment of the employer in whose employment the employee was last exposed to the hazards of the disease in each of at least 12 months, within a period of five years prior to the date of the injury. Code of Ala. § 25-5-117

Medical Benefits

There is no statute of limitations on medical benefits. (Ex parte Tuscaloosa County., 522 So. 2d 782 (Ala. 1988))

Discovery Rule

Alabama’s courts adopted a judicial exception to the general rule that a claim is barred if not filed within two years of the date of the injury. Am. Cyanamid v. Shepherd, 668 So. 2d 26 (Ala. Civ. App. 1995). According to Shepherd, "'[t]he time period [of the statute of limitations] does not begin to run until the claimant, as a reasonable person, should recognize the nature, seriousness, and compensable character of his injury or disease. See also Walker v. Flagstar Enters., 981 So. 2d 1137, 1140 (Ala. Civ. App. 2007)

Extensions of Limitations Period

The two-year statute of limitations is extended or tolled when the Claimant receives compensation payments. Once expired, the statute of limitations may not be revived by the payment of disability benefits. Payment of medical benefits does not toll or extend the limitations period.

The statute of limitations may be tolled where the actions or representations by the employer, even though they are nonfraudulent or unintentional, mislead the employee and delay the filing of his or her workmen's compensation claim. Stewart v. Carter Realty Co., 518 So. 2d 122, 124 (Ala. Civ. App. 1987)

COMPENSABILITY

General Rule

The Alabama Workers’ Compensation Act provides compensation for personal injuries and occupational diseases that “arise out of’ the employment and occur “in the course of” the employment.

“Injury”Defined

“Injury by accident arising out of and in the course of the employment, and not a disease in any form, except an occupational disease or when a disease results naturally and unavoidably from the accident. Injury shall include physical injury covered either by carpal tunnel syndrome or other cumulative trauma disorder and breakage or damage to eyeglasses, hearing aids, dentures, or other prosthetic devices when injury to them is caused by an on-the-job injury to the body. Injury does not include a mental disorder or mental injury unless caused by some physical injury to the body.” Ala. Code 1975 § 25-5-1(9)

“Accident” Defined

“An unexpected or unforeseen event, happening suddenly and violently.” Section 25-5-1(7)

“Arising out of” Defined

The phrase "arising out of" involves the idea of a causal relationship between the employment and the injury. See Wiregrass Comprehensive Mental Health Clinic, Inc. v. Price, 366 So. 2d 725, 726 (Ala. Civ. App. 1978).

“In the Course of” Defined

"In the course of" refers to time, place, and circumstances. If an injury occurs within the period of his employment, at a place where he may reasonably be while he is reasonably performing the duties assigned, such injury may be said to have occurred in the course of his employment. See Wiregrass Comprehensive Mental Health Clinic, Inc. v. Price, 366 So. 2d 725, 726 (Ala. Civ. App. 1978)

Legal Causation

If a claimant establishes that an accident arose out of and in the course of employment, legal causation is established. Trinity Indus. v. Cunningham, 680 So. 2d 253, 259 (Ala. Civ. App. 1995)

Medical Causation

As a general rule, “legal causation” must be established first. See Trinity Indus. v. Cunningham, 680 So. 2d 253, 258 (Ala. Civ. App. 1995) (Once legal causation has been established, i.e., once it has been established that an accident arose out of and in the course of employment, medical causation must be established, i.e., that the accident caused the injury for which recovery is sought.)

Medical causation is concerned with whether the physical condition of the claimant has been changed by a trauma, stress, or exposure. 1 Terry A. Moore, Alabama Workers' Compensation § 10:31 (1998).

To establish medical causation, an employee must produce substantial evidence tending to show that the exposure to the risk or conditions was in fact a contributing cause of the injury. Medical causation may be established by lay testimony or by lay testimony coupled with medical testimony. Trinity Indus. v. Cunningham, 680 So. 2d 253, 260 (Ala. Civ. App. 1995)

Types of Injuries

Hernia

In order to recover for a hernia, the employee must prove that it resulted from an accident arising out of and in the course of the employment and must establish that there was an injury resulting in a hernia, that the hernia appeared suddenly and was accompanied by pain, that the hernia immediately followed an accident and did not exist prior to the accident. Ala. Code 1975 § 25-5-57(a)(6)a.

Occupational Disease

Occupational disease is compensable where the employee establishes it arose out of and in the course of the employment and resulted from the employment. Ala. Code 1975 § 25-5-110& 25-5-111. The "date of injury" for an occupational disease generally means "the date of the last exposure to the hazards of the disease in the employment of the employer in whose employment the employee was last exposed to the hazards of the disease. ArvinMeritor, Inc. v. Handley, 12 So. 3d 669, 681 (Ala. Civ. App. 2008)

Infectious Disease

Infectious diseases are covered under the definition of occupational disease, so long as there is “clear and convincing evidence” the disease is acquired as a direct result of the employment. The employee has the burden of proving a causal link between the employment and the disease.

Cardiovascular

Cardiovascular problems may be compensable injuries under the Alabama Workers’ Compensation Act.. Benefits have been awarded for heart failures, strokes, aneurysms, seizures, blood clots and other cardiovascular problems. (Associated Grocers of the S., Inc. v. Goodwin, 965 So. 2d 1102 (Ala. Civ. App. 2007)(heart failure), Ex parte Trinity Indus., 680 So. 2d 262 (Ala. 1996)(stroke)

In order to establish causation in a workers' compensation case where the injury is nonaccidental, meaning that the injury was not caused by a sudden and unexpected external event, a claimant must satisfy a two-part causation test by producing substantial evidence establishing both (a) legal causation and (b) medical causation. See City of Tuscaloosa v. Howard, 55 Ala. App. 701, 318 So. 2d 729 (Ala. Civ. App. 1975); and Ex parte Moncrief, 627 So. 2d 385, 388 (Ala. 1993) (citing Hammons v. Roses Stores, Inc., 547 So. 2d 883 (Ala.Civ.App. 1989)) ("for an injury to be compensable under the Workers' Compensation Act, the employee must establish both legal and medical causation"). Merely showing that there is a close spatial or temporal relationship between the injury and the place or time of the claimant's performance of his or her job is not in itself always sufficient to satisfy either of the two prongs of Alabama's workers' compensation nonaccidental injury causation test. Ex parte Trinity Indus., 680 So. 2d 262, 269 (Ala. 1996)

Psychological

In order for a psychological injury to be compensable under the Alabama Workers’ Compensation Act, it must be "produced [or] proximately caused by some physical injury to the body.” Ala. Code 1975 § 25-5-1(9). See Goolsby v. Family Dollar Stores of Alabama, Inc., 689 So. 2d 104 (Ala. Civ. App. 1996). Additionally, the physical injury need not be the sole cause of the psychological injury so long as it is a contributing cause of the psychological injury. Ex parte Vongsouvanh, 795 So. 2d 625 (Ala. 2000), Jim Walter Res., Inc. v. Riles, 903 So. 2d 118, 122-23 (Ala. Civ. App. 2004). There is no “mental/mental” in Alabama.

EXCLUSIONS AND DEFENSES

Intoxication/Impairment

“No compensation shall be allowed for an injury or death caused … by an accident due to the injured employee being intoxicated from the use of alcohol or being impaired by illegal drugs.” § 25-5-51, Code of Ala. (1975).

Proof: “A positive drug test conducted and evaluated pursuant to standards adopted for drug testing by the U.S. Department of Transportation in 49 C.F.R. Part 40 shall be a conclusive presumption of impairment resulting from the use of illegal drugs

Refusal of Drug Test: “No compensation shall be allowed if the employee refuses to submit to or cooperate with a blood or urine test as set forth above after the accident after being warned in writing by the employer that such refusal would forfeit the employee's right to recover benefits under this chapter.”

The employer bears the burden of proving that the accident causing the injury was proximately caused by the employee’s intoxication/impairment.

Willful Misconduct\Intentional Self-Inflicted Accident

“[N]o compensation shall be allowed for an injury or death caused by the willful misconduct of the employee”. Ala. Code 1975, § 25-5-51. The employer bears the burden of proving that the accident causing the injury was proximately caused by the employee's willful misconduct/intentional conduct.

Fraud

“No compensation shall be allowed if, at the time of or in the course of entering into employment or at the time of receiving notice of the removal of conditions from a conditional offer of employment, the employee knowingly and falsely misrepresents in writing his or her physical or mental condition and the condition is aggravated or re-injured in an accident arising out of and in the course of his or her employment.” Ala. Code 1975, § 25-5-51.

Willful Failure to Use Employer-Provided Safety Device

“[N]o compensation shall be allowed for an injury or death caused by … [the employee’s] willful failure or willful refusal to use safety appliances provided by the employer.” § 25-5-51, Code of Ala. (1975). For this defense, the term “willful” means the employee’s actions were conscious or deliberate. This defense does not require the employer to prove the claimant intended to violate a rule, or intended to cause injury.

The employer bears the burden of proving that the accident or injury was proximately caused by the employee’s misconduct proscribed by the defenses listed in § 25-5-51. These defenses, if successful, only eliminate the employee’s rights to recover “compensation” and do not relieve the employer / carrier of the obligation to provide otherwise reasonably necessary medical treatment.

Recreational/Social Activities

Accidents occurring during social events or recreational activities sponsored by the employer are generally not covered as falling within the scope of employment. Circumstances may present coverage issues, where there is evidence that attendance is compulsory or that some economic benefits is derived by the employer, other than improved employee moral or employee relations.

Going & Coming Rule

Generally, an accident, which occurs while an employee is travelling to or from work, is not deemed to have occurred within the scope of employment and is not covered. Exceptions arise where the trip includes some activity on behalf of the employer, as opposed to a purely personal trip to or from home. Issues such as payment of travel expenses and provision of a company vehicle may also affect the issue.

Deviation from Employment

An employee’s injury arises out of and in the course of his employment when it occurs within the period of the employee's employment, at a place where the employee may reasonably be and while the employee is reasonably fulfilling the duties of the employee's employment or engaged in doing something incident to it. See 25-5-1(8), Code of Ala. (1975). In the course of employment Refers to the time, place, and circumstances under which the accident took place. Arising out of involves a causal relationship between the employment and the injury; that is, the job performance was the cause and source of the injury.

Horseplay

Generally, an accident is not covered where an employee engages in horseplay and is injured. However, where an employee is injured due to the horseplay of others, in which they did not participate, the accident is generally covered.

Assaults

Generally, assaults based upon reasons purely personal to the attacker are not compensable. If the reason for the attack has any connection to employment activities, compensability may become an issue.

Offset for Pre-Existing Disability

If the degree or duration of disability resulting from an accident is increased or prolonged because of a preexisting injury or infirmity, the employer shall be liable only for the disability that would have resulted from the accident had the earlier injury or infirmity not existed. Section 25-5-58.

Refusal of Medical Treatment

If the injured employee refuses to comply with reasonable request for examination, or refuses to accept the medical service or physical rehabilitation, which the employer elects to furnish under this chapter, the employee’s right to compensation shall be suspended and no compensation shall be payable for the period of the refusal. Ala. Code 1975, § 25-5-77(b).

Refusal of Suitable Employment

If an injured employee refuses employment suitable to his or her capacity offered to or procured for him or her, he or she shall not be entitled to any compensation at any time during the continuance of the refusal, unless at any time, in the opinion of the judge of the circuit court of the county of his or her residence, the refusal is justified. Ala. Code 1975, § 25-5-57(e).

Last Injurious Exposure Rule

If a second injury contributes even slightly to the employee’s disability, then the employer at the time of the second injury (and the insurer with coverage for that second injury) is responsible for the workers’ compensation payments. ‘The characterization of the second injury as a new injury, an aggravation of a prior injury, or a recurrence of an old injury determines which insurer is liable.’ North River Ins. Co. v. Purser, 608 So.2d 1379, 1382 (Ala.Civ.App.1992).

If the second injury is a ‘new injury” or an ‘aggravation of a prior injury,’ then the carrier at the time of the second injury is liable for the resulting medical bills and disability payments. If, however, the second injury is a ‘recurrence’ of a prior injury, then the carrier at the time of the prior injury is liable for the resulting medical bills and disability payments. Ex parte Pike County Com’n, 740 So.2d 1080, 1083 (Ala. 1999)

BENEFITS

Calculation of Average Weekly Wage

The average weekly wage is based on the employee’s earnings, which are subject to federal income taxation and reportable on the Federal W-2 tax form during the fifty-two week period prior to the accident in question. Wages from other employment are not considered. If the period of employment is less than fifty-two weeks, the trial court may use a lesser period of earnings, provided that the result is fair to both parties. The gross wages figure is to be divided by the number of weeks actually worked. Where there is not an adequate period of earnings for the employee in question, the wages earned by a similarly situated employee during the same period may be used. Ala. Code 1975 § 25-5-1(6)

Fringe Benefits

Fringe benefits are included in the average weekly wage only if the employer has discontinued the benefit. "Fringe benefits" shall mean only the employer's portion of health, life, and disability insurance premiums. Ala. Code 1975 § 25-5-1(6).

Temporary Disability

Payments of compensation are to be made at the intervals that the earnings were payable, as nearly as possible, unless the parties otherwise agree. Temporary total disability (TTD) begins with the first day the injured employee is not paid in full. Temporary total disability is computed by multiplying 66 2/3% times the average weekly wage (AWW). Ala. Code 1975 § 25-5-57

If 66 2/3% of the average weekly wage is more than the maximum compensation rate, only the maximum compensation rate in effect at time of injury should be used. If 66 2/3 % of the average weekly wage is less than the minimum compensation rate in rate in effect at the time of the injury then the minimum compensation rate should be used. However, if the average weekly wage is less than the minimum in effect at the time of injury, then 100% of the average weekly wage should be used. (See tables from Alabama Department of Labor establishing maximum and minimum compensation rates and the effective dates, in Section 13 of this guide. http://labor.alabama.gov/docs/guides/wc_weeklywage.pdf )

Temporary Partial Disability

Temporary Partial Disability (TPD) is paid when an employee returns to work, with restrictions, to light duty or part-time. Temporary Partial Disability is paid at 66 2/3% of the difference in the employee’s earnings at the time of injury and the earnings in his restricted capacity. This compensation is paid during the period of disability but not beyond 300 weeks, subject to the maximum only in effect on date of injury. Ala. Code 1975 § 25-5-57.

Waiting Period

There is a three (3) day waiting period in the State of Alabama. Compensation is owed beginning on the fourth (4th) day of disability. When the injured employee is out twenty-one (21) days, the three (3) day waiting period is added to the first compensation payment due after the twenty-one (21) days. If the employee sustains an injury, and it is obvious lost time will exceed twenty-one (21) days, the three (3) day waiting period may be waived and compensation begun on the first day of disability. Ala. Code 1975 § 25-5-59.

Scheduled Injuries

Generally, Ala. Code 1975 § 25-5-57(a)(3)a.1-33 sets a schedule of benefits for the injury, amputation, or loss of use loss of various areas of the body, including the following:

1. For the loss of a thumb, 62 weeks.

2. For the loss of a first finger, commonly called the index finger, 43 weeks.

3. For the loss of a second finger, 31 weeks.

4. For the loss of a third finger, 22 weeks.

5. For the loss of a fourth finger, commonly called the little finger, 16 weeks.

6. The loss of the first phalange of the thumb or of any finger shall be considered as equal to the loss of one half of the thumb or finger, and compensation shall be paid at the prescribed rate during one half of the time specified above for the thumb or finger.

7. The loss of two or more phalanges shall be considered as the loss of the entire finger or thumb, but in no case shall the amount received for more than one finger exceed the amount provided in this schedule for the loss of a hand.

8. For the loss of a great toe, 32 weeks.

9. For the loss of any of the toes other than the great toe, 11 weeks.

10. The loss of the first phalange of any toe shall be considered to be equal to the loss of one half of the toe, and compensation shall be paid at the prescribed rate during one half the time prescribed above for the toe.

11. The loss of two or more phalanges shall be considered as the loss of an entire toe.

12. For the loss of a hand, 170 weeks.

13. For the loss of an arm, 222 weeks.

14. For the loss of a foot, 139 weeks.

15. Amputation between the elbow and wrist shall be considered as the equivalent to the loss of a hand, and amputation between the knee and ankle shall be considered as the equivalent of the loss of a foot.

16. For the loss of a leg, 200 weeks.

17. For the loss of an eye, 124 weeks.

18. For the complete and permanent loss of hearing in both ears, 163 weeks.

19. For the complete and permanent loss of hearing in one ear, 53 weeks.

20. For the loss of an eye and a leg, 350 weeks.

21. For the loss of an eye and one arm, 350 weeks.

22. For the loss of an eye and a hand, 325 weeks.

23. For the loss of an eye and a foot, 300 weeks.

24. For the loss of two arms, other than at the shoulder, 400 weeks.

25. For the loss of two hands, 400 weeks.

26. For the loss of two legs, 400 weeks.

27. For the loss of two feet, 400 weeks.

28. For the loss of one arm and the other hand, 400 weeks.

29. For the loss of one hand and one foot, 400 weeks.

30. For the loss of one leg and the other foot, 400 weeks.

31. For the loss of one hand and one leg, 400 weeks.

32. For the loss of one arm and one foot, 400 weeks.

33. For the loss of one arm and one leg, 400 weeks.

Disfigurement/Scarring

34. For serious disfigurement, not resulting from the loss of a member or other injury specifically compensated, materially affecting the employability of the injured person in the employment in which he or she was injured or other employment for which he or she is then qualified, 66 2/3 percent of the average weekly earnings for the period as the court may determine, but not exceeding 100 weeks. Ala. Code 1975 § 25-5-57(a)(3)a.34.

Permanent Partial Disability

Permanent partial disability (PPD) benefits are paid after an employee has reached maximum medical improvement for a period not to exceed 300 weeks (Caveat: successive compensable injuries) less payment of temporary total disability (TTD) benefits.

Permanent partial disability (PPD), scheduled or unscheduled injury, is subject to a maximum of $220.00 per week

Permanent partial disability (PPD) benefits are generally paid out over time. The employee may not require a lump sum payment unless the employer is in default on payments. Ala. Code 1975 § 25-5-86. If payments are made in a lump sum, future payments are reduced to present value on a six (6%) percent basis. Ala. Code 1975 § 25-5-83.

Impairment Ratings

A trial court is not bound to accept a physician's assigned impairment rating and is free to make its own determination as to an employee's impairment. Fuller v. BAMSI, Inc., 689 So. 2d 128, 131 (Ala. Civ. App. 1996).

Loss of Ability to Earn

An award of permanent partial disability benefits is based upon the employee’s reduced earning capacity proximately caused by the injury in question. The trial court has discretion in determining the impact of an accident and injury on earning capacity and may consider vocational evidence and testimony from vocational experts.

Return to Work at Same or Greater Wages

Where an employee returns to work earning at or above their pre-injury wage, the trial court may not consider vocational evidence. The worker's permanent partial disability rating shall be equal to his or her physical impairment. Ala. Code 1975 § 25-5-57(a)(3)i. The PPI rating and any permanent restrictions may be considered by the trial court on the issue of PPD. If the employee loses his job through no fault of his own within 300 weeks from the date of injury, or if returned to a job paying less than his pre-injury wage, he may petition for his vocational disability

Medical Impairment

The American Medical Association Guides to the Evaluation of Permanent Impairment, Fourth Edition, shall be the recommended guide used by physicians in determining impairment and/or disability ratings. Ala. Admin. Code, r. 480-5-5-.35. Medical impairment is not the same as physical impairment, however.

Vocational Rehabilitation

If the employer so elects, the employee shall submit to and undergo vocational rehabilitation at the employer’s expense. If an employee who is unable in the opinion of the treating physician to return to his/her former employment, requests vocational rehabilitation and both a vocational rehabilitation specialist and a treating physician express their opinion in writing that in their judgment, vocational rehabilitation is reasonably calculated to restore the employee to gainful employment and is in the best interest of the employee, the cost shall be borne by the employer. The costs, where rehabilitation requires residence at or near a facility or institution away from the employee’s customary residence, shall include reasonable charges for the employee’s necessary board, lodging, and travel. Ala. Code 1975, § 25-5-77(c)

Permanent Total Disability

Permanent Total Disability (PTD) does not mean total helplessness. Permanent Total benefits have no limitations on the amount or length of time of payment. If an injured employee is determined to be a permanent total, whereby, he is unable to obtain suitable or gainful employment as a result of the injury, he is entitled to PTD benefits for the remainder of his life so long as he remains disabled, or until he is gainfully employed through vocational rehabilitation. See Thompson & Co. Contractors v. Cole, 391 So. 2d 1042, 1046 (Ala. Civ. App. 1980)(The period of compensation for permanent total disability lasts only so long as the disability continues. Should the disability cease to be other than total at some future time, the compensation for permanent total disability could be terminated).

Permanent Total Disability means the inability to:

1. Perform one’s trade

2. Obtain other reasonable gainful employment

3. Perform gainful employment with reasonable accommodations, or

4. Be retrained for reasonably gainful employment.

See James River Corp. v. Franklin, 840 So. 2d 164 (Ala. Civ. App. 2002)

Permanent Total Disability is computed at 66 2/3 % of the average weekly wage, not to exceed the maximum in effect at the time of injury. Benefits are paid for duration of disability (lifetime benefits) but can be altered by vocational rehabilitation.

Death

Where death results proximately from the accident within three years, compensation is payable to dependents entitled thereto without administration or to a guardian or other person as the Court may direct, for the use and benefit of the person entitled thereto. Ala. Code 1975, § 25-5-60.

Death benefits are based on the employee’s average earnings at the time of the accident, subject to the maximum and minimum in effect at the time of accident. If the employee leaves one dependent, the dependent is entitled to 50% of the employee’s average weekly wage, subject to maximum and minimum. If the employee leaves two or more dependents, the dependents are entitled to 66 2/3% of the employee’s average weekly wage, subject to maximum and minimum in effect at time of injury resulting in death. Precedence of dependents is listed in Ala. Code 1975, § 25-5-62 and the amount/percentage is determined by the Court. Death benefits are payable for 500 weeks, subject to limitations such as remarriage of the widow, etc., as defined in Ala. Code 1975, § 25-5-61. Death benefits are only payable to United States resident. Ala. Code 1975, § 25-5-82. See also Duran v. Goff Grp., 23 So. 3d 45 (Ala. Civ. App. 2009).

Death Following Disability

If death follows a period of disability, the period of disability will be deducted from the 500-week period due the dependent(s). If an employee dies of causes not related to the injury, while receiving permanent partial disability or permanent total disability, the remaining compensation due is payable to his dependents if the degree of disability has been agreed upon by the parties or if a court has determined the degree of disability. Compensation payable to dependents shall not exceed the amount due, had the death resulted from the injury. In all death claims where the cause of death is obscure or is disputed, any interested party may require an autopsy, the cost of which is to be borne by the party demanding the autopsy. The 1992 Amendment provided for a $7,500.00 death benefit for an employee who has no dependents at the time of his death. Burial expenses up to $3,000.00 are payable to all employees whose death is the result of an accident or illness arising out of and in the scope of employment.

Medical Benefits

Medical treatment is generally governed by Section 25-5-77, which provides:

If the employee is dissatisfied with the initial treating physician selected by the employer and if further treatment is required, the employee may so advise the employer, and the employee shall be entitled to select a second physician from a panel or list of four physicians selected by the employer. Ala. Code 1975, § 25-5-77(a).

Under Alabama’s workers’ compensation laws, the employer selects the initial treating physician. If the employee is dissatisfied with that physician, the employee may request that the employer provide the employee with a list of four other physicians from which the employee chooses another treating physician. The employee may only receive one panel of four physicians. There is a distinction between physicians and surgeons such that an employee who has been prescribed surgery may request a separate panel of surgeon to review the surgical recommendation.

The plain language of the Ala. Code 1975, § 25-5-77 differentiates between physicians and surgeons. The Act allows an employee dissatisfied with the initial treating physician the right to request that the employer provide a panel of four new physicians from which the employee can select a replacement. As to surgeons, the Act states that an employee shall have a right to a panel of four different surgeons if surgery is needed and the employee is dissatisfied with the surgeon designated by the employer. Section 25-5-77(a) provides for both a panel of four physicians and, if surgery is required and the employee is dissatisfied with the surgeon designated by the employer, a panel of four surgeons.

Authorized Treating Physician

Where the employee has an authorized treating physician, the employee may not unilaterally seek treatment with another physician, even a previously authorized physician. The only procedure available to the employee is a request for a panel of four physicians pursuant to Section 25-5-25(a). The Act allows the employee only one request for a panel of four physicians, should the employee become dissatisfied with the physician chosen by the employer. The statute distinguishes between a panel of four physicians and a panel of four surgeons, when surgery is necessary.

Once an employer authorizes treatment for an employee by a particular physician and the employee is satisfied with the treatment provided by that physician, the employer loses its authority to withdraw its authorization for treatment by that physician. The authorized treating physician often refers the employee for additional treatment with another physician. Unless the previous authorized treating physician discharges the employee from his care or the employee expresses dissatisfaction and picks from a panel of four, referral by an authorized treating physician to another physician generally does not render the referring physician “unauthorized.”

The law does provide for instances in which the employee is justified in incurring medical treatment and expense without first obtaining the employer’s authorization:

1. Where the employer has neglected or refused to provide the necessary medical care.

2. Where the employer has consented to the selection by the employee.

3. Where notice of and request for alternative care would be futile.

4. Where other circumstances exist which justify the selection of alternative care by the employee

Reasonably Necessary Medical Treatment

The employer is responsible for “reasonably necessary medical” treatment. The Administrative Code defines medical necessity as: