A Tort Defense in Crisis? the Defense That Is the Alabama Workers' Compensation Act

JurisdictionAlabama,United States,Federal
CitationVol. 81 No. 2 Pg. 0137
Publication year2020
A Tort Defense In Crisis? The Defense That Is the Alabama Workers' Compensation Act

Vol. 81 No. 2 Pg. 137

The Alabama Lawyer

March, 2020
By Lawrence T. King


Sometimes it seems like workers' compensation law just trots along under the radar, never getting the news attention of a given week's $120 million verdict or the latest ruling about some Washington scandal. But every once in a while, something happens and folks take notice.

On May 8, 2017, the earth beneath the feet of practitioners of personal injury and workers' compensation law shook a little bit. On that date, Jefferson County, Alabama Circuit Court Judge Pat Ballard found that the "[$220 per week] cap [for permanent partial disability benefits] set forth in [Alabama Code] § 25-568 is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States," that the same cap "is unconstitutional under Article 1, §13, of the Constitution of Alabama (1901)," that the cap on claimants' attorneys' fees set forth in § 25-5-90(a) "fails to afford due process of the law" under the state and federal constitutions, and that the attorneys' fee cap "is unconstitutional under Alabama's constitutional guaranty of separation of powers" pursuant to Alabama Constitution (1901), § 43.1

Judge Ballard wrote: "Because the Court finds those statutes to be unconstitutional, the entire Workers' Compensation Act is declared unconstitutional because of the non-severability statute (Alabama Code § 25-5-17) inserted into the Act by the Legislature in 1984."2 That court observed that if the Worker's Compensation Act were to be held unconstitutional, that "[e]mployers will face tort lawsuits upon the occurrence of industrial [accidents], subjecting them and co-workers of the injured victim[s] to lawsuits for compensatory and punitive damages available within the confines of the common law."3 Although that ruling was stayed and the case later settled before either the ruling was implemented or appellate review had, those familiar with litigation in this area of Alabama law fully expect further constitutional challenges to be forthcoming, in state court, federal court, or both.4 And it is in that regard that the first true essence of what the Workers' Compensation Act is comes most sharply into focus: a defense to tort actions, given that the Act in most instances is the exclusive remedy against employers for workers injured in industrial accidents.5

The"Exclusivity Provisions"of the Alabama Workers' Compensation Act

Immunity for employers from tort liability in the event of industrial accidents injuring or killing employees is codified in two places. In § 25-5-52:

Except as provided in this chapter, no employee of any employer subject to this chapter, nor the personal representative, surviving spouse, or next of kin of the employee shall have a right to any other method, form, or amount of compensation or damages for an injury or death occasioned by an accident or occupational disease proximately resulting from and while engaged in the actual performance of the duties of his or her employment and from a cause originating in such employment or determination thereof.

And in § 25-5-53:

The rights and remedies granted in this chapter to an employee shall exclude all other rights and remedies of the employee, his or her personal representative, parent, dependent, or next of kin, at common law, by statute, or otherwise on account of injury, loss of services, or death. Except as provided in this chapter, no employer shall be held civilly liable for personal injury to or death of the employer's employee, for purposes of this chapter, whose injury or death is due to an accident or occupational disease while engaged in the service or business of the employer, the cause of which accident or occupational disease originates in the employment.

Those few words, lodged into two statutes now so ingrained as an academic concept as to be obscure as actual citations to most practitioners most of the time, are all that stand between an injured worker being able to successfully sue his employer under common law theories of negligence or wantonness for injuries sustained in a work accident. To phrase it alternatively, those few words are the difference between an injured worker being relegated to receiving the benefits available under the Workers' Compensation Act versus compensation for pain and suffering, mental anguish, lost wages, loss of ability to earn, and, perhaps, punitive damages.

The Fair Price That Must Constitutionally Be Paid for the Immunity Conveyed by the Exclusivity Provisions

At the common law, employers of workers injured in the course of their employment could-and often did-face negligence lawsuits for tort damages. There is no question that the legislature can abolish common law remedies if it wants to do so.6 But there are constitutional requirements to consider in deciding whether the abolition of common law remedies can live harmoniously with the Alabama Constitution's guarantee of a remedy.7

Under the common-law-rights approach to testing the constitutional validity of legislative enactments, common law rights can be legislatively abrogated either to ameliorate social evils, or where "exchange[d] for equivalent benefits or protection."8 Given the evident paucity of social evil sought to be ameliorated by the Workers' Compensation Act, the search for equivalent benefits to those offered by the common law must be undertaken. At least with the current co-employee law, for example, where no remedy exists against a co-employee for causing workplace injuries except for certain types of intentionally tortious conduct, there is equivalent mutuality of immunity among co-employees to sustain the limitations on co-employee lawsuits.9 But perhaps the same cannot be said for many other concepts presently embodied in Alabama's Workers' Compensation Act.

Judge Ballard, in his ruling holding the Act unconstitutional in the Clower litigation, wrote to the $220 cap on permanent partial disability benefits fixed by the § 25-5-68.10 That cap became law for all permanently partially disabling injuries occurring after February 1, 1985 as the result of legislation passed in the Second Special Session of 1984-85.11 Judge Ballard noted that the $220 cap, when passed, exceeded the minimum wage and transcended the poverty level for a family of four; it no longer does either.12 Coupled with the subsequent diminution of medical rights under the Act (such as rights to deny medical treatment via utilization review,13 or capping the time within which injured workers may seek reimbursement for mileage expense connected with medical treatment14 ), one readily sees why even the casual observer has grave difficulty swallowing that the Act in its present form provides anything near what it did circa 1985, particularly when the $220 cap annually erodes in value even further given annual increases in Alabamians' wage-earning capability.15

And yet the tort immunity continues seemingly iron-clad for employers for the injuries workers sustain in the course of their employment, despite the fact that the cost for obtaining the immunity, in real dollars paid to the permanently partially disabled worker, is lessening every year. To the extent that a workers' compensation act is referred to as a grand bargain of American society,16 and to the extent that one might rightfully expect the trade-off for an "injury done" in the lexicon of Section 13 of the Constitution (1901) of Alabama would be something equivalent or virtually so, serious re-examination of how we have permitted ourselves to be governed in this context might very well be sorely overdue.17

What Do Employers Face without the Immunity Conferred By the Exclusivity Provisions?

The short answer to that question is "probably a lot of trouble."

Once upon a time in Alabama the Workers' Compensation Act was truly elective, and employees and employers could simply opt out and play by the rules of common law. But even the late Justice Richard L. "Red" Jones once observed, on the occasion of a majority of the Supreme Court of Alabama upholding the constitutionality of the statute granting immunity to an injured claimant's co-employees except in the cases of willful conduct now codified at §§ 25-5-11( c)(1) and (c)(2), that:

It is preposterous to suggest at this late date that constitutionality of either the original Workmen's Compensation Act or the subject amendment rests upon the right of the employee to elect not to be covered by the act. Notwithstanding the weight earlier given by the courts to this contractual doctrine in holding the workmen's compensation acts constitutional, over a half century of experience has shown that the "right to elect," at least from the employee's

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