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Last Friday, I spoke at a workers’ compensation seminar in Birmingham. Let me start by saying thank you to Birmingham attorney David Nomberg (Nomberg Law Firm) for organizing the event and asking if I would speak. I enjoyed teaching about return-to-work issues in Alabama law. I also enjoyed learning on different topics from the other speakers David scheduled. When I attend these seminars, I always leave with some great insights that help me better prepare and try my Alabama workers’ compensation cases.

What are return-to-work issues in Alabama’s comp law? Alabama workers’ compensation law has a special provision, often referred to as the Return-To-Work section. The Alabama Supreme Court and Court of Civil Appeals have only addressed this section directly in about 3 to 4 cases. And, two of those are mine. The first involved a workers’ compensation case I tried a number of years ago in Athens. My client suffered a really bad lower back injury while working at the local Steelcase plant that left him severely restricted. He tried unsuccessfully to keep working. The second involved a more recent case I tried in Guntersville. In the Guntersville case, my client suffered two accidents, underwent a spinal surgery, and returned to work unsuccessfully despite significant efforts to accommodate his restrictions. My client worked for the City of Guntersville, itself. Both of these guys were hard workers who did everything possible to keep working. Both suffered such severe injuries that they just could not continue. In both cases, we won full benefits for our clients at trial and through appeal. So, these are compensation issues I’ve debated for clients through the Alabama court system.

I have not written much on this blog about the Return-To-Work provision of our workers’ compensation laws. There is a reason for that. This section is a major provision that impacts many injured workers. But, it’s also a long section with some complicated issues. So, it’s an area that’s really difficult to discuss in a short blog post. Since I just returned from teaching on the topic, I thought I would try to touch on a few issues in this area of Alabama law.

The Goals Of The Alabama Workers’ Compensation System

If you suffered a work-related accident and injury, you first need to know:  What are the purposes of Alabama’s Workers’ Compensation Act? Our comp laws were originally designed to achieve two very important purposes. One is to provide medical care with the hope the worker can be rehabilitated. Two is to provide monetary benefits as a substitute for lost wages and lost earning capacity. Honestly, the law fails on both purposes. Although the system should be simple, it has been corrupted by insurance companies trying to avoid providing any meaningful benefits to seriously injured workers.

Insurance adjusters have become skilled in delaying or denying needed medical care. Our law provides little or no punishment for bad adjusters who neglect injured workers. The answer to those delays is to hire an experienced attorney who will actually fight for you in court. Too many lawyers refuse to take their cases to trial when needed. As a result, too many injured workers are left without necessary medical care. That’s a topic I’ve discussed in numerous other blog posts.

While monetary disability benefits were originally intended as a substitute for lost earning capacity, the Alabama Legislature has largely failed injured workers on this issue. For partial disability benefits, the legislature has left benefits capped at a maximum amount set decades ago. This arbitrary cap no longer has any basis in reality! For total disability benefits, Senator Arthur Orr regularly introduces legislation to apply arbitrary cut-offs for an already limited benefit. Our most disabled workers deserve better than a constant attack on benefits earned from years of hard work! Thankfully, his annual effort has not yet been successful. That’s an issue I’ve also discussed on this blog.

I Want To Work. Can I Continue Despite My Injuries And Limitations?

This is where the Return-To-Work section applies. Monetary benefits under the Alabama Workers’ Compensation Act are calculated pursuant to math formulas. As I tell clients, it’s like doing algebra in school. Keep that in mind — Because if you want to get the benefits to which you are truly entitled, you better hire legal counsel who understands these formulas. Too many lawyers do not. Trust me, many insurance adjusters will make you a settlement offer based on the wrong formula.

I won’t go deep into the formulas here. For this post, I’ll keep it simple. You just need to know that two main formulas exist for permanent, partial disability. One formula applies if you are unable to return to work at the same or greater wages than when you were injured. The other formula applies if you are able to return to work at the same or greater wage. So, the key is simple:  After reaching maximum improvement, can you return to work at the same or greater wage than when you suffered the accident?

Like anything legal, there are a lot of gray areas. I’ve fought in court many times over how to even calculate wages or earnings. That’s too in-depth for this short post.

All you need to know here is that your return-to-work makes a difference on which formula applies. If you are able to return to work (at the same or greater wage), the formulas typically pay less in benefits. The opposite is true if you are unable to find a comparable job. You typically receive greater benefits pursuant to the formulas if limited and unable to resume work at the same or better earnings.

I’ve counseled injured workers for over twenty-five years. Injured people want to heal. They want to get back to their normal lives at work and at home. I tell all my clients — Workers’ compensation benefits are very limited. You are always better if you can resume normal work or some work earning comparable wages. Always! You will make more. You will live a better, more productive life. I spend a lot of time trying to help many of my clients resume normal work. But, if they cannot, I want to get them the most compensation possible.

The Law (And The Lawyers) Should Protect Injured Clients Who Try To Continue Working

I’ve heard the questions so many times. Can I keep my job? Can I make my employer take me back to work? What can I do if my boss is harassing me? What should I do if my boss wants me to work beyond my restrictions? Is my employer going to keep me long-term? Is my employer just trying to keep me long enough to avoid paying real benefits? What can I do if I try but fail to keep my job?

Again, almost every injured worker I counsel wants to resume normal life. That includes gainful employment. At the same time, they are worried. What if the person is hurt so badly they try but fail to keep working? What if the person puts forth a good faith effort but the employer (or its insurance company) is just working them for a short-period to avoid paying true disability benefits. Remember, the formulas allow the insurance company to pay less if you are working at the same or greater wage when your case gets to court. I understand the concerns. I’ve seen them all. Yes, I’ve seen employers and insurance companies that are simply trying to avoid paying full benefits by keeping the person just until the case gets through court. So, concerns are genuine.

That’s where my two cases arise. In both cases, the workers suffered pretty debilitating injuries. In both, the workers tried to resume their jobs with accommodations. In both, the workers really tried hard to keep their jobs, but could not, due to their pain and limitations.

Wait, workers compensation pays less in benefits by formula where the worker returned to work at comparable (or better) wages! Can a worker who later loses his or her job return to court and ask for benefits based on the better formula? In my two cases, that’s what my clients did. The Alabama Return-To-Work section is designed to encourage work efforts but also to provide full benefits if an injured worker fails.

What do you need to know?  The Return-To-Work section is pretty lengthy. And, it’s pretty complicated. As I mentioned while teaching the seminar Friday, for many years courts struggled with this provision that allows workers to re-petition for benefits. If you suffered a work-related accident that left you with significant impairments (either restrictions or pain) and you are trying to keep working, you need to discuss the issues with an experienced Alabama attorney. You need to know:

• What are my benefits under the different formulas? Ask an experienced attorney to explain the amount owed under each formula so you can better understand your rights.
• How can I preserve my rights if I settle while trying to work? If you settle your claim for the smaller formula while trying to work, do not include language in your settlement paperwork giving up your rights under this special section. Instead, put language in the paperwork preserving these special rights.
• What is the time period when I can re-petition the Court for full vocational benefits if I lose my job? Yes, the law has time limits. If you return to work after your accident, you only have a limited time to see whether or not you can truly perform the work. After that time expires, you cannot re-petition for full vocational benefits.
• What reasons for losing my job allow me to re-petition? What reasons for losing my job prevent me from re-petitioning? This section allows the employer to avoid providing full vocational / wage benefits if you later lose your job for certain reasons un-related to your disability. It’s best to consult an experienced attorney who can explain those reasons to you. While many employers work to keep valuable employees, some act in bad faith. Those bad faith employers look for a reason to terminate your employment that prevents you from re-petitioning the court for appropriate benefits. You need to be aware of the circumstances that may prevent proper compensation.

I could discuss these issues all day. We spend much of our time working with clients who suffered serious disabling accidents but are trying their best to work. These are important (and often complicated) issues. You need to understand the law has provisions that protect your efforts to try and work. And, you also need to understand the pitfalls used by savvy insurance adjusters and bad bosses to avoid these protections.

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From its office in Huntsville, the Blackwell Law Firm helps injured and disabled workers across Alabama. From car accidents, to work-related accidents, to serious industrial events, our philosophy for serious accident and injury cases is simple. Preparation. We believe in preparing our cases fully so we can obtain the maximum compensation available for our injured clients.