Hosts: “David I’ve been doing this since September and each month we try to bring to you guys news of national interests news of Alabama case law and we’re starting to bring on some of our friends from different parts of the country and our friend today is Mack Babcock he is out in Colorado works out of Denver Mack if you would and I appreciate you stepping out of your conference for a little bit to have some time with us but if you would tell us about yourself and you in your practice what do you guys do out in Denver?”
Mack Babcock: “Well, I’ve been practicing law for, I guess i’m in my 18th year. I graduated law school in 2002, a fairly typical story, although I think you guys are a little bit different. Actually, my first job out of law school was as a defense attorney.
I spent about 5, a little bit over five years, representing insurance companies and employers. I did a lot of workers compensation defense, I did some some general liability, personal Injury, and insurance defense stuff. I decided I didn’t want to represent insurance companies anymore and and wanted to have my own business.
So, I left that practice and switched sides and I’ve been doing claimants plaintiffs work for the last 13 years and also worked for another firm for a short time. But, I’ve had my firm for most of that. Our practice is about 70% workers compensation cases, all injured workers or their families. The other 30%, most of that is personal injury or car accidents, product liability approaches, liability falls, accidents on people’s property, construction accidents, that sort of thing. Then I also do some insurance bad faith work. Lots of people don’t know that means. But, when certain insurance companies misbehave more than they typically misbehave, they could be sued either in federal or state court if the damage is caused by their obnoxious conduct. Often times resulting in penalties and sanctions and that sort of thing, so we do a little bit of that, as well.
Hosts: Well. it sounds like you’ve got a very practice. David you and and Mac have known each other for a few years now. Let’s talk about that organization that all three of us are now a part of but you guys have some real responsibilities within. After joining the Workers Injury Law Advocacy Group (WILG) that’s when I met Mac. Mac do you want to talk a little bit about WILG and what your role is this year?
Mack Babcock: “Yes I want to say about five or six years now, David and I met at one of their annual conferences. The first time was down in Scottsdale, Arizona. WILG is A professional organization for attorneys that represent injured workers in different types of cases all across the United States. There’s certainly a lot of state workers compensation lawyers, but then we also get people that do things like longshore, that represent longshoremen. People that do defense based work, that represent the government, department of defense contractors who are injured overseas, and different types of unique practices and that sort of thing. WILG is an interesting organization and a really great organization to be a member of just because I find it incredibly helpful to meet people from across the country that do what I do, but under a different set of laws. To be able to think and compare how different different states and different laws work. The other thing that is a reality is that on the other side of us is the insurance industry, the people like the chambers of commerce and employer groups that really want to minimize the claims of our injured clients. Sometimes without a care for what happens to our clients and their families or not. What we see a lot is that they’ll try some bad idea in Oklahoma and and all of a sudden, when it works in Oklahoma and in Texas, they want to bring it to Utah and Colorado and Alabama and so on. WILG will aid workers injury lawyers and advocacy groups and is really the organization that is on the forefront of watching across the entire country what’s going on. You know David and I were both board members and we were co-chairs of the annual conference convention a year and a half ago and put on one of the educational conferences that focuses on a lot of these national issues and that sort of thing, so it’s a great organization. I’m currently an officer in the organization under the organization’s treasurer. Last year, I was the secretary. In two years, I will have the distinct honor and burden, good burden, but still burden of leading the organization and hopefully about 1,200 members across the entire United States in terms of our mission of protecting injured workers on a nationwide scale.
Hosts: “Is it true that you’re putting in for a trademark to change your name officially for that year to El Presidente?
Mack Babcock: Well, I think you both know that being a rough teen for my parents growing up in Chicago, I was asked to move out of my parents house as a young man, and as a result, made the very wise decision to find some maturity by enlisting in the United States Marine Corps right out of high school. I spent about nine years of combined active and Reserve time I stayed in reserves to college and right before I started law school is when is when I decided I couldn’t I couldn’t do it anymore. But, as United States Marine, I think that I am allowed to ask that when I enter a room that they play hail to the chief and that everybody stands right you know? So we’ll see if we can make That happen.
Hosts: “One of our WILG friends is watching live. We want to say hello to Ben Garber at Gerber and Holder in Atlanta. He’s a WILG board member and a good friend of ours. Ben thanks for for joining us today.
Mack Babcock: I’m also one of the chairs of the Membership Committee and Ben is on that committee and we had just finished up our first membership committee call just before joining you all for this.
Hosts: On the eve of the Super Bowl we’re going to jump off with the first Case. This is the first situation that we’ve got is out of Pennsylvania and it involves a former Steelers linebacker who was injured on the job and the title of the article, and again I’ll put all the links to these articles in the show notes, “Ex Steelers linebacker wins workers compensation battle” and I’ll throw this to you guys, but what really interested me was the issue that turned about seasonal employment versus someone who is contracted to be year-long. I know you’ve got that issue in Colorado, we don’t have as much here, but let’s talk about the case and then let’s see what Colorado has to say about that?”
Mack Babcock: We see this argument all the time in Colorado. Obviously, we have we have a lot of seasonal employees here with the ski resorts, the rafting companies, the fly fishing outfits, the mountain guides, that sort of thing. So you’ll see people who either come to Colorado and work for a season that leave or maybe it’s somebody who works that season and they have different employment summer. Where this argument comes from right, it affects the wage loss benefits referred to as temporary disability benefits in Colorado, probably the same in Alabama, as they are in most states. What they ultimately want to do is, they want to reduce the cost of the claim by paying less through wage loss benefits. But, also what they want to do in a really nasty way Is to starve out an injured worker. So, they’ll make one or two arguments with the seasonal employment. What they do in Colorado is either they say “Okay, well your season, the ski season, would have ended in April and so we only owe you wage loss benefits in April. Even though that injured worker is still restricted from working and maybe can’t go to their summer job or find a new job. We’re going to cut off your benefits and then try to strong-arm them into maybe under- settling their claim or ending their medical treatment.” That, where they’ll take four months of wages and say “we’re going to divide that over 52 weeks and pay you maybe a third or half as much as we normally would.”
Hosts: Mack I think that’s what they initially had attempted. David what did you find out about what this football players contract and maybe then NFL PA had to say About that?
David: Right so the court ruled that it was a yearly salary and one of the reasons is his football season may have lasted from, you know say September to January, as far as a 16-game schedule but his contract required him to attend camps to work out and to have media appearances which were throughout the calendar year. So, therefore was a yearly calendar and a yearly employee versus a seasonal one.
Host: Another interesting note as part of his contract with the Steelers he couldn’t participate with any other professional organizations in his area of expertise playing football. The NFL PA has addressed this over the last couple years and the collective bargaining agreement, as well. But here’s another interesting note about that: You can get hurt on the job and file a workers compensation case if you’re an NFL player for your respective state but you also can file a grievance with the NFL PA that would take you through an arbitration process. Now admittedly, I don’t know much about how that part works and Mack I don’t know if you’ve had any experience with that, but it seems like that they may be able to go on both tracks. But this one is just talking about the work comp aspect. A huge difference in what he was entitled to from a compensation standpoint.
Mack Babcock: The last comment I’ll make about this case, I don’t know if you guys feel the same way about this but, you know I represent people from all walks of life. You know I’ve represented doctors, lawyers, accountants, school teachers, cops, firefighters, all the way down to guys that are laborers on a construction site or whatever. Oftentimes, the more educated or maybe the more affluent, higher wage earner clients are shocked that they get treated the same way by the insurance company that maybe the janitor or the ditch digger does. Well, guess what guys? This guy’s a professional football player whose insurance company doesn’t care. They treat him the same way and make the same arguments that they do to reduce his claim that they do to everybody else.
Hosts: Great point. You know Mack that we’re capped depending on the date of your injury in Alabama. We cap and it goes up a little bit each year. I think but you could be making two thousand to three thousand dollars a week, but if you get hurt say July 1st of 2019, you are capped at I think $865 a week and that doesn’t include benefits, so it doesn’t matter what you do.
Mack Babcock: Our caps are a little bit higher than yours. That’s probably due a little bit to cost of living difference, but the Colorado max compensation rate is a little bit over a thousand bucks and likewise adjusts for inflation cost-of-living every year.
Hosts: Let’s move to California where we’ve got an issue here that we’ve talked about a few times on our show and it’s the California new independent contractor law AB5. This has really been in the news for months now because it affects, not just hundreds of thousands of people, but potentially millions of workers and whether it’s going to have a trickle effect into other states. I think that’s what’s coming down the pike, but Dave let’s kick off what what you know and what you’ve seen about the law out of California.”
David: A quick overview of California AB5 this law went into effect January 1 of this Year and a created new set of laws for California companies that work with Contractors. Specifically the law changes the definition of an independent contractor in California and under this new law, someone can only be considered a contractor if – and there’s three things – they control how they work, the work done falls outside the hiring company’s usual course of business, and they customarily engage in an independent trade. So, this basically codified, or made into law, what they count a contractor is defined as in California.
Mack Babcock: So, a little bit more background on a couple of things. This issue we talked about at WILG at the outset of this this issue and the growing use of independent contractors, whether rightly or wrongly, largely associated with what gets commonly referred to as the “gig economy.” You know all the apps and people working through the apps. That sort of thing is becoming a huge issue and it’s coming a huge issue because independent contractors don’t get protections like unemployment insurance, workers compensation, that sort of thing. You know they’re not subject to to federal law when it comes to fair wages, fair labor, and that sort of thing. There are also other implications in terms of lacking. They don’t pay taxes the same way that the rest of us do and that can affect states budgets and federal budgets. I could do an hour show on this case. I don’t know if you guys know the history but the the AB5 law was originally a California Supreme Court decision in the Dynomax case that changed the independent contractor test and then they codified it in the next legislative session in the California Legislature. The Dynomax case created the EBC test, which is what David just discussed and then they codified the AB5 law and got it passed last year. They did try to pass this same test, I believe in Oregon and Washington maybe, and were not successful last legislative session. Here’s something going on now in the California Legislature: legislature is in session and companies like Uber, Lyft, Walmart and Amazon are expected to spend something like over a billion dollars in lobbying money to try and get this law reversed and taken off the books. There is a huge battle going on because, like we know at WILG, that ideas go from state to state. They’ve already seen this try to go to Oregon and Washington and they’re scared that it’s going to go to other states.
Hosts: Well Mack, one of the reasons why they’re really fighting this is, not only the change in the status and they’ll have to provide different protections for these folks, but the MISclassification lawsuits that are pending or coming their way could put companies out of business is one of the things they fear. So they’ve got to get be proactive to make sure that they’re in compliance with AB5.
Mack Babcock: The most significant thing about this new test is the first and third elements. which is really how much is the potential employer controlling the employee or Contractor? Is it more like an employer has a lot of control over schedule and how the work is done and all that stuff? In the third test, part of the test which is is the individual acting like an independent contractor would? Are they customarily out in their independent trade? That’s the very standard independent contractor test. That’s what we have in Colorado. That’s what you see in most states. The second part is are they doing something that is the normal business or the ordinary business of the employers? So, when you look at Uber and we know Uber likes to say they’re a technology company or an application company – nobody believes that anymore. They’re a transportation company. So, if you’re a driver, that’s their normal business, that’s the essential function of their business. I’ve had lots of debates and I spoke at a couple of conferences across the country on this particular issue last year in my role as a WILG officer. I was up in Montana and a couple of other places. If you think about that test it could be applied very broadly right? So, I don’t know if it’s a good idea or a bad idea to be honest with you. At the law firm do you guys ever bring on contract paralegals or contract attorneys to help you out with a big case or something like that? Well, we do occasionally. Under this law, do I have to make those people employees? Even if they’re only gonna work there for a month or two? I think different states are trying to address this issue because of the emergence of the use of independent contractors. So, it’ll be interesting to see where it goes.
Hosts: Well, this is certainly not going away anytime soon. I think in our past five shows we’ve brought this up and I anticipate it’ll be on our agenda for months to come.
Mack Babcock: Yeah, I would also say that even though in Colorado we don’t have the AB5 or the AB5 test, I know you don’t Alabama either, I will say that I run into bogus independent contractor Classifications and misclassifications all the time and fight them successfully, I would guess that the Nomberg Law Firm does as well. If any injured worker out there that is being told that they should not get workers compensation because they’re an independent contractor should talk to a lawyer and see if they agree.
Hosts: I tell you where I see it most in our practice is from long-haul truck drivers. Those are the 1099 folks. But, we could talk about any of these and well I know we both we need to keep moving forward. We’re gonna go to the land of cheese, we’re moving up to Wisconsin. A claim where over 64,000 Delta employees have sued Land’s End. Not their employer – but Land’s End over a sickness due to uniforms. Now Dave, I know that you like to wear a lot of polyester at work.
David: It’s flattering. Haha.
Hosts: I don’t know, I haven’t heard any complaints that it’s making you sick. What type of a case of are these employees pursuing?
David: So, Delta Airline employees were issued Land’s End made uniforms and the employees complain that they suffered skin rashes, headaches, fatigue and other issues.
They filed a lawsuit against the manufacturer almost like a product liability claim against Land’s End and Land’s End denies that there’s an issue. Delta says that they conducted a rigorous toxicology study that said that the uniforms met the highest textile standards. It’s very weird situation. Mac why do you think they did not sue the Employer?
Mack Babcock: I was just going to say, you know we talked about my practice at the beginning, and that I do both workers comp and personal injury work. We get a lot of potential clients to contact us who don’t understand that in exchange for providing workers compensation coverage in most states the United States – I think it’s true in Alabama and I know it certainly true in Colorado – that most states, in exchange for providing workers compensation coverage to employees that is no-fault coverage, that you don’t have to prove the employer did anything wrong. That they caused your injury or that they were negligent. Did something else occur to make to make your injury happen? They automatically have to provide you workers compensation benefits with this coverage and with certain benefits that are mandatory, like medical wage loss permanence at the end of the case. But, that in exchange for that, you cannot sue your employer for a traditional personal injury suit even if they were at fault. Even if they were negligent. They have what’s called “immunity” from personal injury suits. It’s a little bit unusual in Colorado to have an attorney that does both workers comp and personal injury, so a lot of my personal injury practice is this type of thing. where we have a workers compensation claim, but then also has a personal injury case that arises out of the same incident. While you can’t sue your employer – they’re immune – if your injury is caused by a non co-worker third party, somebody who doesn’t work for the same employer, you can sue them in a or file a claim for a traditional personal injury bodily injury claim. The most common thing we run into is car accidents, salespeople, truck drivers, people who get accidents while working. They get both workers comp and they have a bodily injury claim against the responsible driver. But we get unique situations like this, as David said, that is a product liability case. When people get hurt they need to know that they need to talk to their attorneys and say, “Okay, I understand I have a worker’s comp case, but what else?” We’ve had people, and I’m sure you guys get this in Alabama, who are injured at work, they’re getting medical treatment and then their doctor or a hospital commits medical malpractice. They continue to treat under the workers comp case and the workers comp insurance carriers to continue to pay for the fallout from that malpractice, but then they also have a claim against that doctor or against that hospital. This is a very unique circumstance because it is also product liability.
Hosts: It is and you’ve got two very high-profile corporations who’ve been around the world for decades, so there’s a lot at stake right here. We will come back to this case in the upcoming months when there’s more news about it. Let’s head east – we’re gonna head to Connecticut and this is where the robots have just taken over. The issue here is about robots taking over big warehouse situations. Two things are really happening. One, people are losing jobs and Two; those who are there and having to interact with these robots are getting injured in a way or in ways that they never anticipated. Probably when they first were hired on with respective companies. Mac do you guys have large companies like Amazon and those types that are out there?
Mack Babcock: We don’t have as much manufacturing in Colorado as you see in other places but, you know what I took away from this article? And, I think it’s a common theme – not just in manufacturing but across all walks of life – that we’ve created all this technology to make a more efficient more flexibility in the way we work and and in the way we do things. What’s kind of central to this article is talking about like the robots are supposed to be doing the more dangerous more mundane tasks and making these jobs safer. But, they’re actually creating new issues. I don’t know about you guys but I feel like technology creates health issues in my life. Wouldn’t you guys like to go back to practicing law before email and before you could get a hundred emails in an hour in your inbox? There’s a conversation that I think we all need to have about whether or not technology is adding to our lives or detracting from it. Large corporations, and this talked about Amazon specifically, and the robots in their warehouses and that sort of thing. We see it a lot with corporations that are after maximizing that profit while seemingly minimizing costs in turn of injuries and labor costs and that sort of thing. You know it would nice be nice to see a broader conversation about how is this really good for us? Should we really be going faster? Is bigger and better and faster really any better? Because there’s these types of things that happen and people are still getting hurt.
Hosts: There was a study they did as part of this investigation that was marked as the basis of this article. They looked at records from 28 Amazon warehouses across 16 states and found the overall rate of serious injuries was more than double than the typical warehouse industry average. That’s remarkable. You know we love ordering something online and you have it in 12 hours or within 24 hours or 48 – or two hours if you’re in certain parts of the country. And so, while we can we talk about Amazon frequently on this show just because it’s the 800-pound gorilla and they’re meeting customer demands, but it’s also causing more injury to its to their employees. We love the the efficiency and the promptness of Amazon, but there’s a rising cost to that. With any warehouse environment you’re gonna have injuries, it’s just part of owning that type of a business. But now you’ve got these extremely heavy machines that either are working on their own accord or have humans running them. As it said in the article, one of the employees said it’s kind of creepy or eerie how sometimes you don’t hear them and they’re up on you before they realize it. That leads to some really bad situations for some workers. This is not going away. In 2014, Amazon had 15,000 robots and at the end of 2019 at 200,000.
Mack Babcock: Here’s another interesting thing about Amazon and some of these companies that are really pushing efficiency. In search of overwhelming corporate profits and things like that, tallying back into the previous article, Amazon is on the forefront of pushing these independent contractor issues, so guess what? They can have all these injuries in their dangerous warehouses in the search of corporate profits and then characterize all their drivers and all the workers as independent contractors and not protect them. You’re right, I like home delivery and I’m an Amazon Prime member and all those things. But, not if it’s going to cost people their livelihood and their health.
Hosts: While we’re talking about misclassification in that earlier situation about AB5 out of California, that bleeds us to this next article which we should have talked about then. The title is “Lyft offers to settle New York driver classification disputes.” Now, this was from three weeks ago and I did not follow up and see if there’s been another one since then. But, this ties into exactly what we were talking about the problems that potentially these large corporations find that if they’re not proactive and figure out how this law works and then fall within the parameters of the law, millions upon millions of dollars are at stake here.
Mack Babcock: Here’s an interesting thing I read in the article and it talks about the offer to settle the misclassification lawsuit was that they were going to pay $600 per driver in this class action and that the class is estimated to be eight thousand people. Now, it talked about the lawyers handling it, what we call the steering committee, they had lawyers directing and the lawsuit writes that they are advising the drivers to to turn down that lawsuit. The lawyers don’t get to make the decision, they have to go to the class members and have them on to vote on whether they want to accept this or not. Because they don’t think it’s enough. If you do the math they say the class is about eight thousand drivers and six hundred dollars per driver. I did that math and that’s about 4.8 million dollars, okay? Do you think Lyft has made more or less in profit than 4.8 million dollars by misclassifying their drivers and not providing workers comp coverage, not providing unemployment, not providing health insurance, not complying with federal and state minimum wage laws, and not not paying taxes? Lyft has made billions by not having to follow federal and state law. So, oftentimes we see some of these lawsuits and we know the people and we know the attorneys involved because we go to conferences and conventions and speaking events with them. I don’t know these particular attorneys, but good on them. $600 per driver does not make up for not paying taxes properly and not following minimum wage laws. I mean lyft is notorious for the guys that are sleeping in their cars while not earning a liveable wage.
Hosts: Some of those who hustle in maybe college towns or who drive for Lyft or Uber, I think they could make five to six hundred dollars on a given night. But, it really doesn’t represent much Money. Let’s pivot to our last article today, Mack. We’re coming down south to Tennessee. This is dealing with truck drivers again and it seems like we’re picking on Amazon, but they’re one of the biggest employers now in the country. There’s just so many legal issues that seem to surround some of the things they do. The quote here is “Like a rented mule” was the description for this truck driver who was so exhausted before he had a crash. Dave, what did you take away from this article?
David: This truck driver filed a lawsuit in Tennessee. Interestingly, the article says he is representing himself. That he does not have a lawyer, which will be interesting to see how the case proceeds. But, he’s saying that as a contract driver, he was forced to drive more than federal law allows. Federal Law says that drivers are only allowed to drive a certain amount of time before they have to take a break and he says that he far exceeded that. So, he’s actually suing for negligence and violation of federal Drivetime laws. He ended up having a tractor trailer crash and he sued after this crash. Mack, he said he was on the road 49 hours without a proper break and fell asleep. He filed in federal court to sue Amazon and it’s contractor Triple 8 Freight. He’s probably lucky to be alive, but what was your take on this one?
Mack Babcock: As David pointed out, I know we were talking about this before we started the show, but he is representing himself. We talked about the Delta Airlines case where those employees were allowed to sue Land’s End, but they couldn’t sue Delta for the uniforms because of workers comp immunity. My concern here is that this guy, and good on him for for calling out what sounds like bad behavior, but I I’m concerned that really he’s got a workers compensation case. But, he’s not going to be able to sustain a suit for his injuries against his employer Amazon, and this Triple 8 Freight, the contractor. You know, again good on him for calling out bad behavior, but workers compensation is one of the largest in terms of a social safety net that came out of the the labor revolution, or the Industrial Revolution of the early 1900’s, when laws were passed to protect to workers and to provide a safety net. To provide safe workplaces and that sort of thing there’s lots of good about it. It’s not no-fault when their employers required to provide it and it should get paid more quickly than trying to pursue a personal injury case. One of the downsides Is that because the employer gets 100% immunity in most places that stretch across the entire United States, and it is true in Colorado and Alabama, if the company does get away with bad behavior then all they have to pay is a workers compensation case. Some states have changed their laws that says that if you can show that an employer acted with you, knew something more than negligence, willful, and wanton conduct or reckless disregard, that you could you can pursue them. I don’t think Tennessee has that law, but I could be wrong. It’s this type of situation that is why states are starting to make those exceptions so that an employer can’t do this type of conduct and just get away with it.
Hosts: I’m wondering if he survives a dispositive motion here or a motion to dismiss of summary judgment if his injuries are enough? Maybe he’ll pick up counsel that may run with it and help help him toward the end of this case?
Mack Babcock: Right? I don’t know if this gentleman looked for an attorney you know we get calls, as I said before, clients all the time that don’t necessarily understand what their rights are. He may be somebody who called around was told that you can’t file this type of lawsuit and decided to do it anyway. That would be unfortunate because he’s obviously calling out bad behavior in the search for corporate profits.
Hosts: That’s one of the services that we provide and I’m sure you do too, Mack. Is that we help explain to injured workers what their rights are and what they’re not. And so often we’ll get a call from someone who’s been hurt at work and really they’re calling us about a work comp claim but they want to talk about the employer’s negligence, what the employer did wrong, what the employer was at fault about. Pretty much every time we have to tell them “Sir, you got hurt at work your claim is against your employer for work comp and the liability the negligence does not enhance the value of your claim.” Mack, I bet you have this experience a lot of times. it’s all about emotion and personal relationships and people’s feelings getting hurt. You gotta explain through all of that, that it is just business. When you’re working for the company and you’re producing and the company’s doing well – you’re the man, you are awesome. But, as soon as your hurt, you get kicked to the curb because they’ve got to replace you – whether it’s part-time or for costs.
Mack Babcock: You’re a cost right? I explained to clients a lot, and it’s not just workers compensation cases, it happens with bodily injury personal injury cases as well. You know these compensation systems and then where their focus needs to be. Let’s get you back to health, let’s get you back to work, let’s avoid financial catastrophe for you and your families. I do get clients who maybe have worked for some of the not-so-nice employers, like Walmart the Amazon and some of these others, and they want to make a point and and to have their day in court to be heard. A lot of our job is counseling people and making them understand. Because listen, Walmart and Amazon and all these companies we’ve talked about on some of these cases, they get tagged with multi-million dollar verdicts regularly. Does it change their behavior? Not really. Do they feel bad about themselves? No. Really what we do is to protect individuals and families and try to get them to a better place in their lives.
Hosts: We now going to transition Mack and we’re going to do a little comparison about how certain parts of the Alabama workers comp laws in comparison to Colorado laws. Admittedly, our laws are over 30 years old and they are outdated, they’re antiquated, and don’t fit with the current cost of living – not even close. We won’t get too far into that today because that could be a whole show on it’s own, but the purpose of bringing this up, and I know that Colorado’s laws are a little bit more progressive and a little more modern than than ours are, we just want to show a little comparison here. Dave explain what is mileage reimbursement in the context of Alabama work comp law?
David: One of the benefits that an injured worker receives under Alabama law is reimbursement for their mileage when they go to the hospital, authorized doctor, physical therapy, or go pick up prescriptions at the pharmacy. Our current rate changes every year and I think we may be at about 58 cents a mile. So, the injured worker submits a list of all the places they have been, they send that into workers comp and then they get a mileage reimbursement check for travel to the Medical place. You’ve got one year to do it from the most recent or last most excuse. Whether you’ve been to the doctor or wherever else you may have been, it has to be for authorized care. Sometimes there is a discrepancy when the adjuster is calculating the mileage versus what our client may have sent in. Typically, I have seen that either comes from Google Maps or one of the recognized Maps companies as opposed to our client, you know, watching it on their own. Mack talk to us a little bit about how this is in Colorado.
Mack Babcock: It’s the exact same thing, you know, one of the aspects of workers compensation I think true in Alabama and Colorado, and also in other states, and one of the very common aspects is that they’re trying to avoid it, it’s a protective system, it’s a compensatory system and they’re trying to not create a financial catastrophe for the injured worker and get them back to work as quickly as possible. The medical coverage under workers compensation, unlike what we see with health insurance, Medicare and Medicaid, and one of the real differences is that it’s not supposed to cost the injured worker anything. No out-of-pockets, no co-pays, no deductibles, right? Stuff that would not normally be covered by health insurance gets covered by workers comp in Colorado. Mileage reimbursement is a medical benefit, right? In Colorado, it’s part of the medical coverage because they don’t want you to have to pay for the expense of going to your doctor’s appointments, so they do mileage reimbursement here. If that’s not going to work or you can’t drive and when you’ve broken your legs or whatever, they provide transportation services. What it’s interesting is that our reimbursement rate is lower than yours at 53 cents a mile. This year, it does adjust and it actually went down. They look at the cost of transportation in Colorado and how gas prices go. I think it was 56 cents last year and now it’s 53 cents for 2020, so it does fluctuate a little bit. Much higher than what you see in terms the IRS medical reimbursement rate. I don’t know if you guys have run into this, but the insurance companies we talked about with the seasonal employment and the NFL guy and how insurance companies used that to try and starve people out and make the system difficult, and maybe you know help force people out of the system or give them Motivation to drop it. They love to screw around with mileage, especially with my low-income clients. We’re actually a part of the the trial bar here this year – the workers compensation trial bar. We’ve got a state group that we work with, organized labor, and other groups to push pro-injured worker, pro-labor legislation. One of our pieces of legislation this year is to stop these games. We did not have specific timelines before and now we’re making it so that you have to submit your mileage within 180 days, about six months. Okay, but that once you submit it, the insurance company has 30 days to pay it or deny it. The the 30 days that lines up with their other medical bills time. That 30-day timeline it’s the same for pain and physical therapy bills.
Hosts: We have similar provisions here along those lines. Let’s talk about pharmacies. In the work comp Dynamics case, we actually had a case ten years ago that the insurance companies were trying to dictate what pharmacy and limit you to what pharmacy you could use. Well the case went our way and you’re not limited, so long as that company pharmacy can provide that type of medicine and has a contract with whatever or accepts whatever work comp coverage company that there is. Is there something similar or do you have provisions in Colorado like that?
Mack Babcock: We don’t have a specific thing in terms of a statute or a regulation. But, we we do have insurance companies who like to try and talk people into specific Pharmacies. They’ll contract with with a national pharmacy provider who will do mail-order. They try to get workers to use their preferred provider for additional discounts that the providers can provide to them. We’re also seeing stuff where the insurance company picked provider will automatically substitute generic medications when a when a provider may have written it for a name-brand medication or an alternative medication. We see them doing things like sending letters to doctors and providers suggesting cheaper, lower-cost medications or different medications, or suggesting that they cut off certain medications. So, attorneys here have Engaged very much in what it sounds like the fight you had ten years ago. The one that says if the worker agrees to use your pharmacy, great. The injured worker is also free to pick any other pharmacy. It’s really been through case law, the judges decisions and things where we fought that battle, so it sounds very similar.
Hosts: It’s good that the employee has the option to either go pick up his medication or have it delivered to the house so they don’t have to leave the house, but then sometimes you worry about when it arrives and whether it gets stolen. There’s certain issues on both sides. Well guys we’re going to transition into our last topic for today and we’re still talking about Alabama law we’re comparing it to how called the Colorado law operates. and this is really one of our biggest areas of contention sometimes in our cases what usually can lead to litigation and it’s the “coming and going rule” as well as the exceptions that helps in those. Why don’t you explain a little bit about the “coming and going rule.
David: In Alabama, if you are leaving your house and you’re on your way to your job, say it’s at a factory or warehouse and you’re injured in an accident. Usually that’s not going to be covered by work comp, right? Same thing if you leave your job and you’re on the road going home. That’s probably not going to be covered. Some of those exceptions are if you’re in the company parking lot and you get injured. That might likely be covered by work comp or even if you have just clocked in or just clocked out you’re still on company Property, You’re still so close to the in the proximity of having just finished working or about to start, That is probably going to be covered, but again leaving work and off property or on the way to work probably are not covered under Workers comp law.
Hosts: Another scenario that I’m thinking of is if you’re assigned a company vehicle and you are on call, so to speak. That could be a situation of an exception where you would be covered. Mack, I’m sure you guys have these issues, as well. They are probably very specific arguments but talk to us a little but about your experience under Colorado Law.
Mack Babcock: Like it is in Alabama, we have the general going and coming law. But then there are exceptions to that and there’s a test that gets applied from a Supreme Court case that we had here in Colorado in 1999. That set the test for the exceptions to the going and coming Rule. Basically what it says is things like David said. In terms of the parking lot exceptions, that if you’re close enough in proximity to still be considered within the the scope of your employment. Things like you’re still on the company property, you’re walking into the company parking lot, that’s so going to be covered. There are also cases where travel is contemplated as part of the employment relationship or that it is done for the benefit of the employer. For example, there was a case a couple of months ago was actually an attorney that worked for the City and County of Denver, a prosecutor, and she left her house in the morning, she was driving right to the courthouse she wasn’t going to her office and she was driving right at the courthouse and she’s gotten into a car accident and that injury was covered. Because it wasn’t the normal commute. This type of situation it’s going to be the same for the plumber who has a plumbing truck from his employer and instead of going into the the warehouse in the morning, goes right to his first job. We see these exceptions with salespeople, people who are in their cars a lot for work situations. You know the foreman is picking up the three other co-workers before they go to the job site. That sort of thing. Interestingly, this issue is starting to overlap significantly with the independent contractor stuff. Because the way we all work and the way we all interact with our employers is much different today than it was when workers compensation laws were put into place. We could have just as easily had done this show on a Saturday with me sitting next to a pool and you guys sitting on a golf course. If we all got hit by lightning, Is that covered by work? The old hard and fast rules in terms of what is, and what is not work is getting very muddy. I had a guy who was on the weekend wearing flip-flops and board shorts, He had stopped at his office downtown and he was leaving the office and he was gonna go back home to pick up his kids and go to their soccer game, He was on his cell phone talking to a client, he was a financial man or something like that. He was walking across a crosswalk and got run down by a car. Unfortunately, he was killed by the other driver. Workers compensation coverage was originally denied. But, we got the cell phone records, we had the person who was on the other line that was a client say, “yes he was a consultant and he was working.” He was on the clock and so that’s a very unique situation.
Hosts: Those are definitely fact-specific. Everytime we talk I feel we could talk all day. We appreciate your time and hope that we’ve covered everything we wanted to today. Dave, you got anything else to contribute?
David: A special shout-out and recognition to Ben Gerber in Atlanta who was watching the whole time and he asked for recognition, so you’re welcome Ben. Again, we’re sorry that the settings for our YouTube didn’t permit comments, but maybe that was for the best today. At the end of each month, we try to come to you the last Thursday of the month, in Alabama. Where we address national cases of interests and situations and news where it Matters. We try to bring to you info on how Alabama treats certain situations, certain cases, and we’ve had our good buddy Mack out in Colorado with us today. Mack, thank you for your time and your expertise today.
Mack Babcock: I very much appreciate you guys having me. You know it takes a big risk to have a guy that you know talks too much on anyway. So, I appreciate that and i’m very honored to be invited. I enjoyed it.
Hosts: We certainly appreciate you and we hope to break bread with you in the upcoming months when we see you again. All right and this is the longest show that we’ve had – almost 60 minutes. So no doubt that was going to happen with you on the show, Mack. So, that’s good.