Faqs

The Alabama Workers’ Compensation Act provides statutory defenses to claims based on willful misconduct. These defenses can lead to the absolute bar of certain benefits under the Act. Medical care and weekly compensation payments can be denied if the injured worker is found to have violated written safety rules, or test positive for a banned substance and this condition proximately causes the accident and injury.

If you have any questions or concerns about this issue or other issues on the law, please call the Nomberg Law Firm at 205-930-6900. Our website is www.NombergLaw.com. Follow us on X https://x.com/@alabamaworkcomp or like us on Facebook https://www.facebook.com/NombergLawFirm/

The insurance company is permitted by law to perform surveillance on an injured party after an on the job accident or in a personal injury claim.  So long as the injured worker follows the advice and opinions of the treating doctor about limitations or restrictions then it should not be a problem for the injured worker.  However, by ignoring the doctor’s orders, it could lead to credibility issues at trial if the injured worker is filmed doing something in violation of the doctor’s orders.

We previously blogged about this topic: https://nomberglaw.com/blog/workers-compensation/legal-insurance-company-surveillance-work-injury/

Hey, it’s Bernard Nomberg with the Nomberg Law Firm. I wanted to take a few minutes to talk to you guys about surveillance in an insurance claim.

Whether it’s a workers’ compensation matter or a personal injury claim, how does surveillance fit into the case? Yes, it is legal and lawful in Alabama for a third party to perform surveillance on an injured worker. It’s actually done quite often by insurance companies. They would either do it themselves and have their own detective or they may hire somebody, but the type of surveillance that I’m referring to that is legal and lawful is can be done from public streets, public walkways, rest stops, you name it. What they can’t do is come onto your property and then peer into your house or look at the footage on your Ring camera.

There’s a big difference there but the bottom line is surveillance can be done so what do we do in response to that? Because we can’t stop it because we assume that most insurance companies are going to do surveillance of our of our injured worker clients, is we ask of you, the injured worker, to be logical about your movements. To be sensible about what you do. If a doctor who’s treating you has given to you restrictions and limitations that you should be following then that’s just what you need to do in public life.

If you’re not supposed to lift more than ten pounds, if you’re not supposed to be climbing or walking stairs, or whatever it may be and you then are found on camera or during somebody’s surveillance of you doing something that exceeds   those limitations that the doctor has said for that apply to you during the time period, then it takes away from your credibility. And it really hurts your ability to be successful in court because that surveillance video will not only be shown at your trial and you’ll be cross-examined, but then the judge will see those things. And it really hurts your case because your credibility is put at issue. It’ll save you a lot of headaches and a lot of time and a lot of mental stress that if you just will not do those things.

Just be sensible and logical and what you’re doing in your day to day life. You don’t need to in the event that you see somebody doing surveillance or suspect them you don’t need to confront them just let your attorney know and we’ll handle it. But in most instances you’ll never know that they’re there and even if you do there’s not much we can do about it.

If you have any questions or concerns about this issue or other issues on the law, please call the Nomberg Law Firm at 205-769-4824.  We are also on Facebook and Twitter.

Whether a worker is an “employee” or an “independent contractor” is critical when it comes to  such important issues as pension eligibility, workers’ compensation coverage, wage and hour law,  and many other matters. In some situations, federal law will govern, but the question is most  often resolved by looking to state law, particularly in areas such as unemployment tax liability, workers’ compensation, and state wage and hour requirements.

Alabama uses a reserved right of control test to determine whether a worker is an employee or an independent contractor. This is a common-law right to control test.   If there is no evidence that the employer reserved no control, except an inference from the circumstances, the question is one for the judge or jury to decide. The test for determining whether a person is an agent or employee of another, rather than an independent contractor with that other person, is whether that other person has reserved the right of control over the means and method by which the person’s work will be performed, whether or not the right of control is actually exercised.

If you have any questions or concerns about this issue or other issues on the law, please call the Nomberg Law Firm at 205-930-6900.

 

 

In this video, Bernard addresses frequent issues injured workers face when returning to work following an on the job accident in Alabama.

The video focuses on two important times when an injured worker returns to work after an on the job accident: 1. when the authorized treating physician assigns light-duty work restrictions (which are usually temporary) and 2. after being placed at maximum medical improvement.

For more information on return to work issues, please see our blogs on this topic:

https://nomberglaw.com/blog/workers-compensation/return-work-issues-alabama-workers-compensation-claimants/

One of the benefits an injured worker can receive in an Alabama workers’ compensation claim is reimbursement on mileage when they go to the doctor, pharmacy, physical therapist or hospital. Alabama Code Section 25-5-77(f).

In this short video, Birmingham workers’ comp attorney Bernard Nomberg discusses mileage reimbursement for Alabama workers’ compensation claims.

Weekly checks are paid in compensable workers’ compensation claims in Alabama.  However, there are situations when those checks are stopped.  Some examples when those checks are stopped include: after investigation by the insurance carrier; if the injured worker returns to work or once the injured worker reaches maximum medical improvement as opined by the authorized worker compensation doctor.

I wanted to take a few minutes with you to discuss another topic under the workers’ comp laws of Alabama. This video’s going to discuss the weekly workers’ compensation checks that injured workers receive once they get hurt on the job and their case is considered to be compensable and they are taken off of work by their authorized treating physician.

Several things to share with you, but first and foremost, the insurance company or the employer gets to investigate the claim. If they don’t contest it and they don’t deny it, but consider it to be compensable, those checks, which will be two-thirds of the average weekly wage for the previous 52 weeks before the accident for the injured worker, those checks will be paid every week or every second week. There is a state maximum as well a state minimum for the amounts. That changes each July by operation of law. But those checks will be paid so long as the claim is considered compensable.

The insurance company and the employer have the right to investigate at any point in time. And a lot of times, if they have reason to deny the claim, either from the beginning of the claim or any point after, when they find new evidence or any evidence that could give them pause to make it compensable, they can stop those checks. Sometimes that leads us to having to file a lawsuit if we’re not already in litigation.

But they could, for example, find medical evidence that shows that a preexisting condition was the actual reason for this injury that’s being complained about. They could use the reason of intoxication or illegal drugs after a drug screen, post-accident. Those are reasons, typically, why they may get cut off if the checks had already been started. But it changes.

At some point, the authorized treating physician may be of the opinion that the injured worker can go back to work with or without some restrictions, depending on the situation. If the employer can accommodate the restrictions for the injured worker during this healing process, then the injured worker goes back to work, those checks stop, and hopefully the salary or compensation from employment kicks back in.

But there’s also situations where the employer can’t accommodate the restrictions by the authorized treating doctor for the injured worker, and usually the injured worker will not return back to that workplace, and those checks will continue. They usually will continue through the end of the healing phase, when the authorized treating doctor feels or is of the professional opinion that the injured worker has reached maximum medical improvement, and that’s the doctor’s opinion that there’s no medical treatment that can help with the medical disability that is at issue for the worker.

When those checks stop, usually that’s about the time that ratings are determined, and we hopefully can move to the next phase of the case, which is trying to get it resolved through suit or settlement.

If you have any questions or concerns about this issue or other issues on the law, please call the Nomberg Law Firm at (205) 930-6900.

Play video: Tips When Preparing for and Taking a Deposition

The transcript below provides a convenient summary about preparing for your deposition. However, it may contain inaccuracies and miss some of the subtleties of the spoken dialogue. For the most accurate information and to fully experience the content as intended, we strongly encourage you to watch attorney Bernard Nomberg’s video. We appreciate your understanding.

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There are a few things that you can do before your deposition that will greatly help you during the day of your deposition so that it’ll be a little bit less stressful than maybe you’re otherwise thinking. 

This video is not meant to be a substitute for meeting with one of the lawyers at our firm but really more to supplement for you to watch at home or at your leisure. 

You’ll also be getting a letter from us that’s a little bit more detailed about do’s and don’ts and tips and things, but I want to take a couple of minutes to share a few thoughts with you.

The purpose of a deposition

The purpose of your deposition is really for the other side, typically the insurance company, to:

• get a good look at you
• figure out who you are more than the paperwork that they’ve probably been reading in the medical records and the other papers that are involved in your case. 

And they’re gonna find out a few things. They want to know:

•  the facts of what happened
•  what you claim occurred in your case
•  everything that took place leading up to you filing this lawsuit that we’re dealing with here. 

They want to know what you’re claiming that the defendant, the employer, or the other side, the other driver, whatever your situation may be, might have done wrong, and to the nature and extent of your damages and injuries. 

They’re also sizing you up, per se, if you will. 

• How truthful are you? 
• How does this person’s story make sense? 
• Does the timeline of events meet up with what they’re claiming? 
• Do the medical records match what’s being said in the lawsuit, what you’re testifying about, and things like that.

And I’m sure you’ll do just fine. Just tell the truth. 

We always tell our clients when preparing for these things – just tell the truth. It’s always the best way to go.

You need to be sincere and humble when you’re in your deposition. 

Wear comfortable clothes. I don’t mean clothes you normally lounge around the house in, but you don’t have to be dressed up in a three-piece suit either. 

If you’re more comfortable in jeans and a collared shirt or khakis, those kinds of things. 

Some folks may have injuries that prevent them from wearing certain clothing. Whatever is most comfortable for you. 

Always be polite when you’re in your deposition. 

It’s our job as your lawyer to defend your rights and to make sure that they’re following the law and the way that the procedures go. So, if you see us get heated or have elevated discussions or even yelling, which occasionally occurs, just let us handle those things. 

You just need to sit there and keep your wits about you.

Keep your emotions in check. 

Be forthright. Make eye contact with the questioner, whether it’s the attorney on the other side of the case sitting actually on the other side of the table from you, or the court reporter, whoever it may be. Just make contact from an eye standpoint. 

Shake hands, use your manners, those kinds of things. 

Again, don’t use any temper. Let us handle those types of things. 

Don’t be a smart aleck. Don’t cut jokes. Don’t make things up just to seem to be funny or witty. 

Again, we need you to be on your game, and be focused on your answers. 

Again, being polite and being courteous are two very good ways to help your day go along.

Don’t volunteer answers. If you’re asked what time it is, look at your watch and tell them exactly what time it is. Don’t tell them how you got the watch, where it came from, and what it cost, those kinds of things. 

The more answers that you volunteer, the longer you’re going to be sitting there, I promise you. So please be mindful of what the questions are and answer accordingly.

On that note, don’t guess at anything. If you don’t hear what was being asked of you, ask the person who asked the question to repeat it or rephrase it. 

You control this deposition. It’s your deposition. We’re not in a hurry. This is not a sprint; it can be more along the pace of a marathon or a slow jog. 

And I don’t want you to feel that you’re being rushed, so just take a deep breath, slow down, make sure you answer the questions as you hear them.

If there are objections that are made by me or by your attorney in the case or by the other side, just let the objections be stated by the attorneys. There’s nothing for you to do. However, if you’re instructed not to answer, or if you’re instructed to even leave the room at times (that’s quite rare), but just be listening out for those things.

During the course of the deposition, you and I are not going to talk while it is time for you to testify. 

We can take a break or go outside the room to talk, but it’s always better that you’re able to answer those questions under oath directly with the person asking the questions. 

Don’t look to me for answers. If you don’t understand or if you have a real concern about whether you should answer it, then maybe we can take a short recess, step outside, and discuss it. But don’t turn towards your lawyer and start asking questions when you’re being asked questions.

Don’t forget that I’m your friend in that room, not the attorney who may be quite courteous to you across the table. They’re not there to be your friend. They’re there to do their job, and most attorneys are quite cordial, quite courteous. 

There are very few moments where it gets heated, but the person sitting next to you, your attorney representing you, is the person who you need to rely upon and not anyone else.

Don’t hesitate to correct any mistakes you might have made. Sometimes people get nervous and they make mistakes. They misspeak, they miss-state something. I’m sure that 99.9% of the time, it is not intentional. Just correct it. 

Sit up in your chair, don’t slouch. That’s pretty evident.

Records and documents: don’t bring anything into the room. You might be shown documents, and if you are, look at the document to make sure there’s a question that’s being asked of you before you start volunteering or responding to anything.

Don’t be a complainer. Don’t feel sorry for yourself. No one in that room does, and if you start acting that way, then you tend to feel bad, and your answers will reflect such, and it won’t help your case.

One or two other things: be distinct in your responses. Don’t mumble, don’t use “mm-hmm” or head nods. Those things are not recordable properly on a transcript. And you’ll notice at the end of the table during a deposition that there’ll be a court reporter. He or she will be taking down everything that’s said under oath. So, every answer that you respond to a question, needs to be audible. 

So, if the answer is “yes,” don’t say “mm-hmm,” but in fact, respond with “yes.” Those types of things. It’ll be easier once the transcript’s been read or is being read by the judge and so forth. Plus, it’ll give you more credibility.

There are a lot of other things to go over. These are just meant to be a few tips for you to review. 

If you have any questions or concerns about this issue or other issues on the law, please call or fill out our online form.

What’s it like to attend a Best Interests Hearing (aka settlement walk-through hearing) to get my workers’ compensation case approved?  This is the final step before an injured worker’s claim is paid. In Alabama, workers’ compensation settlements must be approved.  One such process for approval is a hearing before a circuit court judge. This court hearing is short (10-15 minutes) and not confrontational, but still can be stressful for any person who is not prepared. This video helps to explain the process.