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Alabama Enacts Solid Wastes and
Recyclable Materials Management Act

    On April 15, 2008, Governor Bob Riley signed into law the Solid Wastes and Recyclable Materials Management Act (“SWRMMA” or “the Act”), Ala. Act 2008-151, amending the Alabama Solid Waste Disposal Act (“SWDA”).  The SWRMMA provides for a statewide fee on solid waste disposal and unified statewide regulatory control on the management of solid wastes and recyclable materials.

    In particular, the SWRMMA requires the Alabama Department of Environmental Management (“ADEM”) to adopt minimum statewide recycling and waste minimization standards for solid waste generated in Alabama.  The Act also creates new penalties for the “creation, contribution to, or operation” of unauthorized dumps while protecting innocent landowners from liability.  The SWRMMA also establishes new penalties for any person who knowingly or negligently violates the provisions of the Act or its implementing regulations.

    The Act also authorizes the state to collect fees for solid waste disposal in the state from generators of solid waste at $1 per ton.  Fees are to be levied by operators of permitted solid waste disposal facilities.  Twenty-five percent of revenues generated by this fee will be deposited into a trust fund for a recyclable materials management grants program.  Another twenty-five percent of revenues generated by collection fees will support a separate trust fund to pay the cost of investigation, required cleanup, and closure of unauthorized dumps by innocent landowners.  These fees will required to be collected starting on October 1, 2008.

How This Act Affects Tire Dealers:  

      Currently, we are being been told this fee encompasses all solid waste, including tires that are landfilled.  However, before this Act can be implemented, ADEM must go into rulemaking.  It is during the rulemaking process that tire dealers need to let their voice be heard on this “double taxation.”  The Alabama Tire Dealers Association will keep you posted with updates on this issue.  Visit the ATDA website at www.alatiredealers.com or contact the ATDA office at 256-616-3587 for more information.

Synopsis & Impact of Workers Compensation Bills
Pending in the Alabama Legislature
Thursday, February 28, 2008 / Alabama Self-Insurer's Association

 Senate Bill 403 (Permanent Partial Disability Benefits) 

* Elimination of 300 week limitation for permanent partial disabilities; Benefits would be payable through age 67 of the employee

Impact: A 30 year old employee’s loss of toe injury costs the employer $66,000 under the current law. Under SB403, the court could award as much as $1,000,000.

* Scheduled member injuries (finger, toe, etc) would no longer exist if the court found that the injured member caused a loss of earning capacity

Impact: Same as above if 300 week limitation removed. If 300 week limitation not removed the loss of a toe would be $66,000 under the old law and as much as   $660,000 under the new Act and possibly more.

* There is only a “rebuttable presumption” of no loss of earning capacity where the employee returns to work earning as much as pre-injury

Impact: “Rebuttable presumption” creates uncertainty as to benefits owed an employee who returns to work making as much or more money as pre-accident. 30-year old employee with toe injury could be worth 0 or it could be worth $660,000 or more.

* Permanent total awards may be ordered payable in a lump sum if the employer has been found in contempt previously by the court

Impact: There is uncertainty as to present value of an injury pending an award by he court. The $1,000,000 toe injury above could have a present value of one-half that amount if financed via an annuity. Also, under current law an employer can petition to set aside a permanent total benefit award if the employee has returned to work. This would not be possible if the court had previously awarded permanent benefits paid in a lump sum.

* A set-off for the employer paid portion of disability, retirement or sick pay benefits is not allowed where those benefits arise out of a collective bargaining agreement

Impact: This provision could lead to employers refusing to voluntarily offer retirement, disability or sick pay plans because they can no longer set off those benefits in the event of a work comp injury as they can now set off under current law. (Immediate increase in costs to unionized employers in Alabama.)

Senate Bill 405 (Co-Employee and Exclusivity)

* An employer may face a third party claim (in addition to the workers’ compensation claim) if the injury or death to the employee results from the “reckless conduct” of the employee’s manager, supervisor or policy maker

Impact: A return to the co-employee days of the 1970's made worse because it is the employer that is subject to the 3rd party suit instead of management and supervisory level employees. There will be no coverage to the 6 person employer whose employee had the toe injury under the workers’ compensation policy and general liability policies may exclude coverage leaving small employers to defend these types of claims without coverage.

* Allows retaliatory discharge claims to be more freely filed and would allow a claim to be made if the filing of a workers’ compensation claim or assisting a fellow employee in a workers’ compensation claim was a “motivating factor” in the employee’s discharge

Impact: Numerous retaliatory discharge verdicts of $500,000 into the millions have been reversed by the Alabama Supreme Court because current law requires the termination to be “solely” based upon the filing of a workers’ compensation claim. All of these verdicts would likely be affirmed if the law only required the filing of the claim to be a “motivating factor” in the termination. Again the small 6 -10 employee businesses would likely have no coverage available to defend these claims and would face exposure on their own, including the significant costs just to defend these claims.

Senate Bill 389 (Medical Benefits Amendments)

* Would require employers to pay for any “apparatus” which assists the employee in activities of daily living and/or improves the employee’s quality of life as opposed to assisting in return to gainful employment

Impact: A 6-10 employee small business might be required to purchase the employee a van or retrofit or rebuild his home because of the loss of his big toe. Workers’ compensation insurance costs would increase over time because such costs are not required under current law. Hot tubs, spas, health club memberships and other costs not currently imposed under law could be covered

under this amendment.

* Would require “Panel of Four” physicians offered by the employer to be from the employee’s “local labor market”

Impact: In many areas this would be impossible. In small towns like Evergreen, Brundidge, Winfield and Clayton, for example, if the employer couldn’t seek orthopoedics from Columbus, Ga, Montgomery, Mobile or Birmingham to fill out the “panel of four” the employer might be held in contempt of court.

* An “employee only” has the right to seek a “neutral physician” and the court may empower the neutral physician to become the employee’s designated

treating physician

Impact: Employers are already required to provide a physician and later may be required to provide a panel of four physicians if the employee is dissatisfied with the first physician. Under this bill, an employee could request a 3rd physician who could impose a different treatment protocol or surgery.

* Refusal by the employer to provide medical, surgical or rehabilitation benefits shall result in the employer paying two times the temporary total benefits above and beyond other benefits therein payable

Impact: Even if the employer believes that certain medical treatment is unrelated or unauthorized under the workers’ compensation act, a refusal to pay those benefits could result in payment of over $1300 per week. Employers would never use utilization review of medical bills and costs of medical under the Act would most likely escalate considerably.

* Employer representatives (case managers?) may not communicate verbally with the treating physician regarding the employee’s treatment

Impact: Case managers currently work with employers and the physician to help return employees to gainful employment. Only communication in writing would be allowed under the new amendments which would likely slow the employee’s return to work.

* Utilization review guidelines under current law significantly restricted by a provision that nothing shall interfere with the treatment of the authorized treating physician

Impact: Utilization review guidelines help control escalating medical costs. These guidelines would be of no utility since the amendments preclude any restrictions on the treatment by the physician.

* Trial judge may award an attorneys fee where a denial of medical/vocational benefits is successfully challenged

Impact: Since same does not exist under current law, this is another cost escalator in workers’ compensation.

Senate Bill 139 (Retaliatory Discharge Amendments)

* Retaliatory Discharge claims may be filed if the employee’s termination was “substantially” related to his/her filing of a workers’ compensation claim currently requires termination to be “solely” based upon filing of a workers’ compensation claim

Impact: As previously addressed under SB405 numerous retaliatory discharge verdicts of $500,000 into the millions have been reversed by the Alabama Supreme Court because current law requires the termination to be “solely” based upon the filing of a workers’ compensation claim. All of these verdicts would likely be affirmed if the law only required the filing of the claim to be a “substantial” factor in the termination. Again the small 6 -10 employee businesses would likely have no coverage available to defend these claims and would face exposure on their own, including the significant costs just to defend these claims.

* Allows a retaliatory discharge claim if the employee was terminated for filing a workers’ compensation claim with a prior or concurrent employee

Impact: Doesn’t exist at all under the current act. (Potential for increased litigation and increased costs to employer in defending.)

House Bill 502 (Employee may Select Own Physician)

* An employee shall always have the right to select his own physician whose charges are paid by the employer. Where the employee’s injury is a sprain or strain without broken bones, the employer shall not be obligated to pay for more than 16 treatments or 4 weeks of treatment

Impact: Current law requires an employer to offer two physicians (the original treating doctor and a panel of four from whom employee may select a second). As previously discussed amendment (SB389) would allow the court to appoint a third physician and this bill would then allow the employee to have a 4th physician of his own choosing. The employer could thus be obligated to provide 4 physicians with 4 different treatment protocols for the employee.

Full Bills:

SB403-intSmitherman        SB405-intBedford        SB389-intZ.Little
SB139-intSmitherman        HB502-intGordon

Credit Card Scam Hits
McGriff Tire & Moody Tire

       In the last few months there have been several dealers throughout Alabama who have been hit by credit card fraud. Mike Griffin with McGriff Tire reported the problem to the ATDA.  The Association sent a warning, by e-mail, to its members, and Moody Tire in Montgomery reported also having been victims of the same credit card scam. 
       The scammers will call, and say they need truck tires because DOT has them stopped. They will give a credit card number and expiration date as well as the security code. When the credit card is approved, they come and pick up the tires, sometimes in a U-Haul truck.  A few days later the dealer will find out the credit card was stolen.  The best defense against this fraud is if you get a call from someone that needs 8 or 10 tires in a hurry and is giving credit card information over the phone, tell them they are approved, (even if the card is denied), and have the police waiting for them when they come for the tires.
       The ATDA is a network of dealers and suppliers working together for the good of our industry. If anyone has any other thoughts or information on how to stop these people please let us know.

Mike Griffin
mikeg@mcgriffindustries.com
(256) 590-1770

UPDATE:  Great News!!! The person(s) who "bought" (stole) tires from McGriff Tire and Moody Tire with fraudulent credit cards have apparently been caught in Troy. The police were waiting at Troy Discount Tire after being made aware of the situation. A special thank you to our members who were instrumental in bringing this crime spree to an end. Look for more details in the next copy of the Spare Tire.