Ala. Admin. Code r. 355-8-1-.02

Current through Register Vol. 43, No. 1, October 31, 2024

Section 355-8-1-.02 - General Provisions

(a) Definitions. Throughout this program, the following words and phrases as used therein shall be considered to have the following meanings, respectively, unless the context shall clearly indicate a different meaning in the connection used:

(1)Accident. The term, as used in the phrases "personal injuries due to accident" or "injuries or death caused by accident" shall be construed to mean an unexpected or unforeseen event, happening suddenly and violently, with or without human fault, and producing at the time injury to the physical structure of the body or damage to an artificial member of the body by accidental means.

(2)Adjudication. The review of claims to apply prevailing rules that adjust reimbursements for the amount of work required when multiple procedures are performed at the same time, when assisting surgeons are present, to eliminate duplicate billing from the unbundling of global fees, and to adjust for the most commonly occurring method adopted for total reimbursement.

(3)Benefits. The term shall in all cases be construed to mean compensation, medical, vocational or other benefits expended by the program on behalf of the employee.

(4)Bill Screening. The evaluation and adjudication of provider bills for appropriateness of reimbursement relative to medical necessity and prevailing rates of reimbursement, duplicate charges, unbundling of charges, relativeness of services to injury or illness, necessity of assistant surgeons, adjudication of multiple procedures, number of modalities, global procedures, and any other prevailing adjudication issues that may apply.

(5)Child or Children. The terms include posthumous children and all other children entitled by law to inherit as children of the deceased; stepchildren who were members of family of the deceased, at the time of the accident, and were dependent upon him or her for support; a grandchild of the deceased employee, whose father is dead or is an invalid, and who was supported by and a member of the family of the deceased grandparent at the time of the accident.

(6)Compensation. The money benefits to be paid on account of injury or death, as provided in Articles 2, 3 and 4. "Compensation" does not include medical and surgical treatment and attention, medicine, medical and surgical supplies, and crutches and apparatus furnished an employee on account of an injury.

(7)Contract Employee. A person employed by written contract who is deemed to be an employee, as opposed to an independent contractor, according to Internal Revenue Service criteria as applied by the State Comptroller and State Personnel Board.

(8)Dependent Child or Orphan. An unmarried child under the age of 18 years or one over that age who is physically or mentally incapacitated from earning.

(9)Division of Risk Management. A division of the State of Alabama, Department of Finance, charged with the implementation of this program. Also known as "DORM".

(10)Employee or Worker. The terms are used interchangeably and have the same meaning throughout this program. The terms include the plural and all ages and both sexes. The terms expressly include elected state officials and every person in the full time paid service of the employer, who is covered by the State Employees Insurance Board's medical insurance plan and whose wages are paid through the office of the state comptroller, provided that the assessed costs for the program have been paid by the employing agency. Other classes of employees may be covered if pre-approved by the Risk Manager, but coverage will not be effective until receipt by DORM of payment of assessed costs. Any reference in this program to a "worker" or "employee" shall, if the worker or employee is dead, include his or her dependent, as defined in this program.

(11)Employer. The State of Alabama and its agencies, departments, boards or commissions. The term shall include the Division of Risk Management, and service companies or agents with which it contracts for the administration of this program.

(12)Gender. Where the masculine gender is used, the feminine and neuter shall be included.

(13)Hospital. A hospital, ambulatory surgical center, outpatient rehabilitation center licensed by the State of Alabama, and diagnostic facilities accredited by the Commission on Accreditation of Rehabilitation Facilities.

(14)Injuries by an Accident Arising Out of and in the Course of the Employment. Without otherwise affecting either the meaning or interpretation of the clause, the clause does not cover workers except while engaged in or about the premises where their services are being performed or where their service requires their presence as a part of service at the time of the accident and during the hours of service as workers. Only injuries by an accident during the employee's duties while under the right of control of the employer shall be considered as arising out of and in the course of employment.

(15)Injury. "Injury and personal injury" shall mean only injury by accident arising out of and in the course of the employment, and shall not include a disease in any form, except for an occupational disease or where it results naturally and unavoidably from the accident. Injury shall include breakage or damage to eyeglasses, hearing aids, dentures, or other prosthetic devices which function as part of the body, when injury to them is incidental to an on-the-job injury to the body. Injury does not include an injury caused by the act of a third person or fellow employee intended to injure the employee because of reasons personal to him or her and not directed against him or her as an employee or because of his or her employment. Injury does not include a mental disorder or mental injury that has neither been produced nor been proximately caused by some physical injury to the body. Injury does not include physical injury caused by carpel tunnel syndrome disorder unless said disorder is a secondary condition which developed as a result of a specific injury by accident which occurred after the effective date of this program.

(16)Loss of Hand or Foot. Amputation between the elbow and wrist shall be considered as the equivalent to the loss of a hand, and the amputation between the knee and ankle shall be considered as the equivalent of the loss of a foot.

(17)Medical. All services, treatment, or equipment provided by a provider.

(18)Participating and Nonparticipating Hospitals. Those hospitals that have a negotiated rate of reimbursement or payment with the Division of Risk Management. "Nonparticipating hospitals" means those hospitals that have not negotiated a rate of reimbursement or payment with the Division of Risk Management.

(19)Prevailing. The most commonly occurring reimbursements for health services, other than those provided by federal and state programs for the elderly (Medicare) and economically disadvantaged (Medicaid). "Prevailing" shall include not only amounts per procedure code, but also commonly used adjudication rules as applied to multiple procedures, global procedures, used of assistant surgeons, and others as appropriate. For hospitals, "prevailing" rate of reimbursement or payment shall be established by the method contained in Rule .04(p).

(20)Providers. A medical clinic, pharmacist, dentist, chiropractor, psychologist, podiatrist, physical therapist, pharmaceutical supply company, rehabilitation service, or other person or entity providing treatment, service, or equipment, or person or entity providing facilities at which the employee receives treatment.

(21)Review Board. A panel composed of three persons designated by the Risk Manager to hear and consider claims by employees whose disagree with the determination by the employer or its agent or service company as to the employee's entitlement to compensation and medical benefits under this program and to approve settlements when required by this program. The Risk Manager and employees of the Division of Risk Management, along with other state employees, may be members of the Review Board.

(22)Singular and Plural. Wherever the singular is used, the plural shall be included.

(23)Utilization Review. The determination of medical necessity for medical and surgical in-hospital, out-patient, and alternative settings treatments for acute and rehabilitation care. It includes precertification for elective treatments. Concurrent review and, if necessary, retrospective review are required for emergency cases.

(24)Wages or Weekly Wages.

(i) The terms shall in all cases be construed to mean weekly earnings at the time of the injury, based on those earnings subject to federal income taxation and reportable on the State of Alabama tax form which shall include fringe benefits as defined herein. "Fringe benefits" shall mean the employer's portion of health insurance premiums and Retirement Systems of Alabama payments. Weekly earnings shall not include fringe benefits if and only if the employer continues the benefits during the time for which compensation is paid.

(ii) Determination of Average Weekly Earnings for Classes of Employees Who Are Other Than Full Time. Compensation under this section shall be computed on the basis of the average weekly earnings. Average weekly earnings shall be based on the wages of the injured employee in the state employment in which he or she was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury divided by 52, but if the injured employee lost more than seven consecutive calendar days during the period, although not in the same week, then the earnings for the remainder of the 52 weeks shall be divided by the number of weeks, remaining after the time so lost has been deducted. Where the employment prior to the injury extended over a period of less than 52 weeks, the method of dividing the earnings during the period by the number of weeks and parts thereof during which the employee earned wages shall be followed, provided results just and fair to both parties will thereby be obtained. Where by reason of the shortness of the time during which the employee has been in the employment of his or her employer or the casual nature of terms of the employment it is impracticable to compute the average weekly earnings as above defined, regard shall be had to the average weekly amount which during the 52 weeks prior to the injury was being earned by a person in the same grade, employed at the same work by the same employer, and if there is no person so employed, by a person in the same grade employed in the same class of employment in the same District. Whatever allowances of any character made to an employee in lieu of wages are specified as part of the wage contract shall be deemed a part of his or her earnings if and only if the employer does not continue those allowances.

(b) By accepting benefits under this program the employee agrees to release the employer and its officers and employees, professional or corporate agents of the employer and employees thereof, from any liability, other than that arising from willful conduct, for the injuries suffered by the employee for which benefits may be paid under this program. If an employee initiates a civil action against the employer or its officers or employees, or the employer's professional or corporate agents or employees thereof, other than for willful conduct, benefits under this program will terminate. If the injured employee, or in case of death, his or her dependents, recovers damages against another party, the amount of the damages recovered and collected shall be credited upon the liability of the employer for benefits. If the damages recovered and collected are in excess of the benefits payable under this chapter, there shall be no further liability on the employer to pay benefits on account of the injury or death. To the extent of the recovery of damages against the other party, the employer shall be entitled to reimbursement for the amount of compensation theretofore paid on account of injury or death. If the employee who recovers damages is receiving or entitled to receive compensation for permanent total disability, then the employer shall be entitled to reimbursement for the amount of benefits theretofore paid, and the employer's obligation to pay further compensation for permanent total disability shall be suspended for the number of weeks which equals the quotient of the total damage recovery, less the amount of any reimbursement for compensation already paid, divided by the amount of the weekly benefit for permanent total disability which the employee was receiving or to which the employee was entitled. The employer shall be entitled to subrogation for benefits expended by the employer on behalf of the employee.

(c) As used herein, "willful conduct" means any of the following:

(1) A purpose or intent or design to injure another; and if a person, with knowledge of the danger or peril to another, consciously pursues a course of conduct with a design, intent, and purpose of inflicting injury, then he or she is guilty of "willful conduct."

(2) The willful and intentional removal from a machine of a safety guard or safety device provided by the manufacturer of the machine with knowledge that injury or death would likely or probably result from the removal; provided, however, that removal of a guard or device shall not be willful conduct unless the removal did, in fact, increase the danger in the use of the machine and was not done for the purpose of repair of the machine or was not part of an improvement or modification of the machine which rendered the safety device unnecessary or ineffective.

(3) The intoxication of another employee of the employer if the conduct of that employee has wrongfully and proximately caused injury or death to the plaintiff or plaintiff's decedent, but no employee shall be guilty of willful conduct on account of the intoxication of another employee or another person.

(4) Willful and intentional violation of a specific written safety rule of the employer after written notice to the violating employee by another employee who, within six months after the date of receipt of the written notice, suffers injury resulting in death or permanent total disability as a proximate result of the willful and intentional violation. The written notice to the violating employee shall state with specificity all of the following:

(i) The identity of the violating employee.

(ii) The specific written safety rule being violated and the manner of the violation.

(iii) That the violating employee has repeatedly and continually violated the specific written safety rule referred to in b. above with specific reference to previous times, dates, and circumstances.

(iv) That the violation places the notifying employee at risk of great injury or death.

A notice that does not contain all of the above elements shall not be valid notice for purposes of this section. An employee shall not be liable for the willful conduct if the injured employee himself or herself violated a safety rule, or otherwise contributed to his or her own injury. No employee shall be deemed to have committed willful conduct for the violation of any safety rule by any other employee or for failing to prevent any violation by any other employee. In the event the employer has paid benefits to the employee or his or her dependent, or in the event the employer has received a claim for the payment of the benefits, a civil action against a third party may be maintained either in the name of the injured employee, his or her dependent in case of death, the employer, or the insurance carrier. In the event the damages recovered in the civil action are in excess of the benefits payable by the employer under this chapter and cost, attorney's fees, and reasonable expenses incurred by the employer in making the collection, the excess of the amount shall be held in trust for the injured employee or, in case of death, for the employee's dependents.

P. Maddock

Ala. Admin. Code r. 355-8-1-.02

New Rule: Filed September 30, 1994; effective November 4, 1994. Amended: Filed June 6, 1995; effective July 11, 1995. Amended: Filed October 30, 1995 effective December 4, 1995. Amended: Filed September 12, 1997; effective October 17, 1997.

Statutory Authority:Code of Ala. 1975, §§ 36-29A-1et seq.