vocational

Published on: October 31, 2022

Workers Compensation And The Return-To-Work Provision

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.

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Published on: December 16, 2019

Work Comp in Alabama: The Vocational Rehabilitation Myth

By Jeff Blackwell

Workers’ compensation benefits are intended to help restore injured workers. At least, that’s the original intent. That’s why medical treatment and vocational rehabilitation should be top priorities. Heal and restore whenever possible.

Yet, over the last couple decades, our system has largely devolved into a mess leaving many injured workers without benefits. Instead of help, too many injured workers are simply shuffled through the system. I’ve written numerous articles about the current work comp medical system and how it fails injured workers.

Another area where our current work comp system fails — Vocational Rehabilitation. What does “vocational rehabilitation” even mean in Alabama? The phrase is never fully defined by our workers’ compensation statute. Most lawyers and most courts really don’t understand the meaning of the phrase. Why not? The answer is that our courts have so limited its practical effect to the point vocational rehabilitation is largely non-existent and never legitimately offered.

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Published on: September 3, 2019

Biestek v. Berryhill: Did The Supreme Court Open The Door To Vocational Charlatans?

By Jeff Blackwell

What’s The Deal With Biestek v. Berryhill?

In Biestek v. Berryhill, a construction worker applied for Social Security disability benefits. Following a hearing, the Administrative Law Judge (ALJ) denied his benefit application. The ALJ decision denying social security benefits is not unusual. The real question in the case was whether or not Biestek had a fair hearing.

In Social Security hearings, the ALJ will often retain a vocational expert to provide opinion testimony. In Biestek, that vocational expert testified the worker could perform a number of different jobs in the national economy. In other words, Biestek was not vocationally disabled. The vocational expert then testified she reached her opinions based upon individual market surveys in her possession. So, on cross-examination, Biestek’s attorney asked to see the data. That’s fair. That’s a very reasonable request. Should any expert be allowed to give an opinion while refusing to show the underlying data? That’s when the ALJ intervened and refused the lawyer’s request. What we now have is an expert who provided an unsubstantiated and unsupported opinion.

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Published on: March 11, 2019

Tinnitus And Hearing Loss Are The Most Common Military Disabilities

By Jeff Blackwell

We have been investigating claims related to defective 3M earplugs used by members of our armed forces. Why are these defective earplugs an important issue? To answer that question, we need to examine first the impact of hearing loss and tinnitus on our veterans. I thought hearing loss and tinnitus among veterans may be a good topic for this post.

Veterans Suffer Significant Hearing Loss And Tinnitus Problems

Are hearing problems a major issue for veterans? Here is what the U.S. Department of Veterans Affairs says about the issue:

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Published on: April 24, 2017

Five Deceptive Tactics Employed By Defense Vocational Experts

By Jeff Blackwell

In many personal injury cases, wage losses are an important part of the damages. In many workers’ compensation claims, vocational disability (either partial or total) is the essential issue. How do we prepare our clients’ wage or vocational claims? We often use vocational experts. What is a vocational rehabilitation expert? Vocational experts possess special training related to the labor market and the jobs which may be available given a person’s limitations or restrictions.

Over the last two decades, I’ve questioned many vocational experts at trial. Too many lawyers attempt to cross-examine vocational experts using an argumentative style that gets nowhere. Big mistake. A lawyer who handles personal injury and workers’ compensation claims needs to understand the basics of vocational evaluations. This knowledge makes a huge difference in how much an injured client recovers by settlement or trial. If you are looking for a personal injury lawyer, make sure you ask if he or she has real trial experience using and questioning these experts.

A skilled lawyer can often expose deceptive defense experts. This requires an understanding of the Dictionary of Occupational Titles (DOT). And, it requires a knowledge of how restrictions can impact a person’s ability to work. What are five common tricks used by defense vocational experts to harm your personal injury claim?

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Published on: July 27, 2016

Work Comp: Why The Right To Re-Petition Is Important

By Jeff Blackwell

A recent workers’ compensation settlement made local news. An Athens city employee fell when a walkway came loose. He suffered significant injuries — requiring surgeries on both knees. He then returned to work at the same or higher pay. While off work receiving medical care, the injured worker received $3,126 in temporary total disability benefits. After returning to work and reaching maximum improvement, he settled for an additional $3,953 in permanent partial disability benefits. That’s a total of $7,079 for an injury which resulted in multiple surgeries.

That does not sound like much. And, it isn’t. Workers’ compensation benefits in Alabama are calculated by formulas. A key factor in deciding what formula applies is — whether or not the injured employee returns to work at the same or greater wage. Where the injured worker does return to work at the same or greater wage, “the worker’s permanent partial disability rating shall be equal to his or her physical impairment and the court shall not consider any evidence of vocational disability.” Alabama Code Section 25-5-57.

What does the statutory language mean? Let’s consider an employee who suffered a bad back injury at work. The employee had spinal surgery. Afterwards, the surgeon placed permanent restrictions on the injured worker preventing significant lifting and many other activities. If the worker is unable to return to his past employment (or similar work), the court can consider evidence of vocational disability — how the injury affects his ability to find gainful work. An employee with significant restrictions may be significantly or totally disabled from work. A severely injured employee could be 100% vocationally disabled. Yet, based on the AMA Guidelines used by doctors, this same injured worker may have only a 5% to 15% impairment rating for his back surgery. So, the difference between considering real vocational disability versus some type of impairment rating can make a huge difference in compensation.

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Published on: May 19, 2016

How Lawyers Ruined The Grand Bargain

By Jeff Blackwell

I recently finished a workers’ compensation trial in a small north Alabama county. The trial took just one day. It was a straightforward case. The issue was simple — how disabled was my client. In my law practice, I have workers’ compensation trials frequently.

If the case was so simple, why did the defense firm bring 2 law partners and 2 law clerks for a one day trial? Why are four legal minds needed for the task? I’m flattered by the opportunity to face such a large trial team from Birmingham in a one day case. But, I doubt they came just to see me. From my table, it was clearly overkill. One defense attorney did all the work – arguing the case, making the objections, questioning the witnesses, talking with the court. I guess the others were present to carry the file and cheer for him. From my seat at the other table, the extras did nothing.

I’m sure all four legal professionals were billing to attend this trial a couple hours from their office. When I see tactics like this, I’m always curious as to how the defense lawyers justify the extra costs to their client. The extra lawyers (sitting the bench) added nothing but probably cost a lot.

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