by Bernard D. Nomberg, Partner, The Nomberg Law Firm
Alabama is one of the only states that allow its state courts to adjudicate workers’ compensation cases instead of using an administrative court system. This means that in Alabama, a case can be heard in any venue that is proper for that particular case. Determining if a venue is proper usually includes several factors such as residence of the parties, location of the event in question, the location of the evidence for the case and how changing the forum would affect each party’s case. In an administrative court system a venue is selected through strict rules which leave little room for there to be multiple proper venues.
What makes the state courts advantageous for the first to file is that in making a ruling on venue decisions, a court will only find a venue improper when there are two potential proper venues if one party can show that another venue is much better suited to hear the case. Thus, if you file the case first, your employer must show that the venue that you have selected is much less suited than where he wants the case to be heard. Court decisions that turn on this point such as a recent Alabama Court of Civil Appeals case of Ex parte Blair Logistics, LLC in June of 2014 show us that this burden is not an easy one to overcome.
Another issue to consider in when to file a workers’ compensation claim is that the Alabama Workers’ Compensation Act provides that either the injured worker or the employer can file the lawsuit in a workers’ compensation claim. (“In case of dispute between employer and employee…either party may submit the controversy to the circuit court of the county which would have jurisdiction of a civil action in tort between the parties……” Ala. Code §25-5-81). Therefore, both you and your employer may file the initial suit. Since the advantage goes to the party who is the first to file a case in workers’ compensation claims due to the high burden of changing the venue, the best situation is one where you are able to file the suit first and in a venue that will not harm your case.
To have a successful workers’ compensation claim in Alabama, there are certain things for the injured worker to consider — such as these mistakes to avoid.
Employers file suit to select the venue, prevent the employee from filing in a venue favorable to the employee, to control the claim, possibly to save money, and to force the employee to hire an attorney or negotiate a settlement before the employee hires an attorney.
In Alabama, parties are allowed to file their case for workers’ compensation in any court in which the case may be proper. This selection will only be overturned if the venue is shown to be improper or it is substantially outweighed by a more convenient venue. The burden of this showing is solely upon the respondent to the first filing. Thus, it is advantageous to be the first to file in workers’ compensation cases in the state of Alabama because of the protections this burden allows the first to file.
Bernard D. Nomberg has practiced workers’ compensation law in Alabama for more than 20 years. Bernard has earned an AV rating from Martindale-Hubbell’s peer-review rating. He has been selected a Super Lawyer by Super Lawyers Magazine as well as a Top Rated Attorney by B-Metro Magazine.