Alabama Administrative Code › Title 355 - STATE OF ALABAMA DEPARTMENT OF FINANCE › Chapter 355-8-1 - DIVISION OF RISK MANAGEMENT › Section 355-8-1-.04 - Compensation Schedule

Current through Register Vol. 42, No. 9, June 28, 2024
(a)
			 Compensation schedule. - Following is the schedule of compensation:
(1)
Temporary Total
			 Disability
. - For injury producing temporary total disability, the
			 compensation shall be 66 2/3 percent of the weekly earnings received at the
			 time of injury, subject to a maximum and minimum weekly compensation as stated
			 in Rule .04(n), but if at the time of injury the employee received weekly
			 earnings of less than the minimum stated in Rule .04(n), then he or she shall
			 receive the full amount of the weekly earnings per week. This compensation
			 shall be paid during the time of the disability, but at the time as a temporary
			 total disability shall become permanent, compensation for the continued total
			 disability shall be governed by (a)(4) of these rules with respect to permanent
			 total disability. Payments are to be made at the intervals when the earnings
			 were payable, as nearly as may be, unless the parties otherwise
			 agree.
(2)
Temporary
			 Partial Disability
.
a. Amount and
			 Duration of Compensation. - For temporary partial disability, the compensation
			 shall be 66 2/3 percent of the difference between the weekly earnings of the
			 worker at the time of the injury and the weekly earnings he or she is able to
			 earn in his or her partially disabled condition. This compensation shall be
			 paid during the period of the disability, but not beyond 300 weeks. Payments
			 shall be made at the intervals when the earnings were payable, as nearly as may
			 be, unless the parties otherwise agree, and shall be subject to the same
			 maximum weekly compensation as stated in Rule .04(n).
b. Effect of Change in Employment. - If the
			 injured employee who is receiving compensation for temporary partial disability
			 leaves the employment of the employer by whom he or she was employed at the
			 time of the accident for which the compensation is being paid, he or she shall,
			 upon securing employment elsewhere, give to the former employer an affidavit in
			 writing containing the name of his or her new employer, the place of
			 employment, and the amount of wages being received at the new employment, and
			 until he or she gives the affidavit, the compensation for temporary partial
			 disability shall cease. The employer for whom the employee was employed at the
			 time of the accident for which the compensation is being paid may also at any
			 time demand of the employee an additional affidavit, in writing, containing the
			 name of his or her employer, the place of his or her employment, and the amount
			 of wages he or she is receiving; and if the employee upon demand fails or
			 refuses to make and furnish the affidavit, his or her right to compensation for
			 temporary partial disability shall cease until the affidavit is made and
			 furnished.
(3)
Permanent Partial Disability
.
a. Amount and Duration of Compensation. - For
			 permanent partial disability, the compensation shall be based upon the extent
			 of the disability. In cases included in the following schedule, the
			 compensation shall be 66 2/3 percent of the weekly earnings, during the number
			 of weeks set out in the following schedule:
1.
			 For the loss of a thumb, 62 weeks.
2. For the loss of a first finger, commonly
			 called the index finger, 43 weeks.
3. For the loss of the second finger, 31
			 weeks.
4. For the loss of the third
			 finger, 22 weeks.
5. For the loss
			 of a fourth finger, commonly called the little finger, 16 weeks.
6. The loss of the first phalange of the
			 thumb or of any finger shall be considered as equal to the loss of the one half
			 of the thumb or finger, and compensation shall be paid at the prescribed rate
			 during one half of the time specified above for the thumb or finger.
7. The loss of two or more phalanges shall be
			 considered as the loss of the entire finger or thumb, but in no case shall be
			 the amount received for more than one finger exceed the amount provided in this
			 schedule for the loss of a hand.
8.
			 For the loss of a great toe, 32 weeks.
9. For the loss of any of the toes other than
			 the great toe, 11 weeks.
10. The
			 loss of the first phalange of any tow shall be considered to be equal to the
			 loss of one half of the toe, and compensation shall be paid at the prescribed
			 rate during one half the time prescribed above for the toe.
11. The loss of two or more phalanges shall
			 be considered as the loss of an entire toe.
12. For the loss of a hand, 170
			 weeks.
13. For the loss of an arm,
			 222 weeks.
14. For the loss of a
			 foot, 139 weeks.
15. Amputation
			 between the elbow and wrist shall be considered as the equivalent to the loss
			 of a hand, and amputation between the knee and ankle shall be considered as the
			 equivalent of the loss of a foot.
16. For the loss of a leg, 200
			 weeks.
17. For the loss of an eye,
			 124 weeks.
18. For the complete and
			 permanent loss of hearing in both ears, 163 weeks.
19. For the complete and permanent loss of
			 hearing in one ear, 53 weeks.
20.
			 For the loss of an eye and a leg, 350 weeks.
21. For the loss of an eye and one arm, 350
			 weeks.
22. For the loss of an eye
			 and a hand, 325 weeks.
23. For the
			 loss of an eye and a foot, 300 weeks.
24. For the loss of two arms, other than at
			 the shoulder, 400 weeks.
25. For
			 the loss of two hands, 400 weeks.
26. For the loss of two legs, 400
			 weeks.
27. For the loss of two
			 feet, 400 weeks.
28. For the loss
			 of one arm and the other hand, 400 weeks.
29. For the loss of one hand and one foot,
			 400 weeks.
30. For the loss of one
			 leg and the other foot, 400 weeks.
31. For the loss of one hand and one leg, 400
			 weeks.
32. For the loss of one arm
			 and one foot, 400 weeks.
33. For
			 the loss of one arm and one leg, 400 weeks.
34. For serious disfigurement, not resulting
			 from the loss of a member or other injury specifically compensated, materially
			 affecting the employability of the injured person in the employment in which he
			 or she was injured or other employment for which he or she is then qualified,
			 66 2/3 percent of the weekly earnings for the period as the Review Board may
			 determine, but not exceeding 100 weeks.
b. Successive or Concurrent Temporary Total
			 and Permanent Partial Disabilities Resulting from Same Injury. - When a
			 permanent partial disability, the number of weeks compensation for which is
			 scheduled in subdivision (a)(3) of this rule, follows or accompanies a period
			 of temporary total disability resulting from the same injury, the number of
			 weeks of the temporary total disability shall not be deducted from the number
			 of weeks payable for the permanent partial disability.
c. Concurrent Disabilities. - If an employee
			 sustains concurrent injuries resulting in concurrent disabilities, he or she
			 shall receive compensation only for the injury which entitled him or her to the
			 largest amount of compensation, but this paragraph shall not affect liability
			 for the concurrent loss of more than one member for which members compensation
			 is provided in the specific schedule.
d. Loss of Use of Member. - The permanent and
			 total loss of the use of a member shall be considered as equivalent to the loss
			 of that member, but in such cases the compensation specified in the schedule
			 for such injury shall be in lieu of all other compensation, except as otherwise
			 provided herein. For permanent disability due to injury to a member resulting
			 in less than total loss of use of the member not otherwise compensated in this
			 schedule, compensation shall be paid at the prescribed rate during that part of
			 the time specified in the schedule for the total loss or total loss of use of
			 the respective member which the extent of the injury to the member bears to its
			 total loss.
e. Effect of Refusal of
			 Suitable Employment. - If an injured employee refuses employment suitable to
			 his or her capacity offered to or procured for him or her, he or she shall not
			 be entitled to any compensation at any time during the continuance of the
			 refusal, unless at any time, in the opinion of the Review Board, the refusal is
			 justifiable.
f. Maximum and Minimum
			 Compensation Award. - Compensation provided in this subsection (a) for loss of
			 members or loss of use of members is subject to the same limitations as to
			 maximum and minimum weekly compensation as stated in Rule .04(n).
g. Compensation for Permanent Partial
			 Disabilities Not Enumerated. - For all other permanent partial disabilities not
			 above enumerated, the compensation shall be 66 2/3 percent of the difference
			 between the weekly earnings of the worker at the time of the injury and the
			 weekly earnings he or she is able to earn in his or her partially disabled
			 condition, subject to the same maximum weekly compensation as stated in
Rule .04(n)
. If a permanent partial disability, compensation for
			 which is not calculated by use of the schedule in subdivision (a)(3) of this
			 rule, follows a period of temporary total disability resulting from the same
			 injury, the number of weeks of the temporary total disability shall be deducted
			 from the number of weeks payable for the permanent partial disability.
			 Compensation shall continue during disability, but not beyond 300 weeks. The
			 following formula shall be used to determine the compensation rate for injuries
			 subject to this section: current weekly wage times the percent of disability
			 times two thirds.
h. Affidavit of
			 New Employment. - If the injured employee leaves the services of the employer
			 for whom he or she was working at the time of the accident and accepts
			 employment elsewhere, he or she shall make and furnish affidavit as to his or
			 her new employment in the manner as required in (a)(2) of this rule.
i. Return to Work. - If, on or after the date
			 of maximum medical improvement, except for scheduled injuries as provided in
			 Rule .04(a)(3), an injured worker returns to work at a wage equal to or greater
			 than the worker's pre-injury wage, the worker's permanent partial disability
			 rating shall be equal to his or her physical impairment and the program shall
			 not consider any evidence of vocational disability. Notwithstanding the
			 foregoing, if the employee has lost his or her employment under circumstances
			 other than any of the following within a period of time not to exceed 300 weeks
			 from the date of injury, an employee may petition the Review Board within two
			 years thereof for reconsideration of his or her permanent partial disability
			 rating:
(i) The loss of employment is due to a
			 labor dispute still in active progress in the establishment in which he or she
			 is or was last employed. For the purpose of this section only, the term "labor
			 dispute" includes any controversy concerning terms, tenure, or conditions of
			 employment, or concerning the association or representation of person in
			 negotiating, fixing, maintaining, changing, or seeking to arrange terms or
			 conditions of employment, regardless of whether the disputants stand in the
			 proximate relation of employer and employee. This definition shall not relate
			 to a dispute between an individual worker and his or her employer.
(ii) The loss of employment is voluntary,
			 without good cause connected with such work.
(iii) The loss of employment is for a
			 dishonest or criminal act committed in connection with his or her work, for
			 sabotage, or an act endangering the safety of others.
(iv) The loss of employment is for actual or
			 threatened misconduct committed in connection with his or her work after
			 previous warning to the employee.
(v) The loss of employment is because a
			 license, certificate, permit, bond, or surety which is necessary for the
			 performance of such employment and which he or she is responsible to supply has
			 been revoked, suspended, or otherwise become lost to him or her for a cause.
The burden of proof is on the employer to prove, by clear and
				convincing evidence, that an employee's loss of employment was due to one of
				the causes (i) through (v) above. At the hearing, the Review Board may consider
				evidence as to the earnings the employee is or may be able to earn in his or
				her partially disabled condition, and may consider any evidence of vocational
				disability. The fact the employee had returned to work prior to his or her loss
				of employment shall not constitute a presumption of no vocational impairment.
				In making this evaluation, the Review Board shall consider the permanent
				restriction, if any, imposed by the treating physician under Rule .04(p), as
				well as all available reasonable accommodations that would enable the employee
				in his or her condition following the accident or onset of occupational disease
				to perform jobs that he or she in that condition otherwise would be unable to
				perform, and shall treat an employee able to perform with such accommodation as
				though he or she could perform without the accommodation.
(4)
Permanent Total Disability
.
a. Amount, Duration, and Payment of
			 Compensation. - For permanent total disability, as defined in paragraph d. of
			 this subdivision, the employee shall receive 66 2/3 percent of the weekly
			 earnings received at the time of the injury, subject to a maximum and minimum
			 weekly compensation as stated in Rule .04(n). Notwithstanding the foregoing, if
			 at the time of injury the employee was receiving earnings of less than the
			 minimum as stated in Rule .04(n), then he or she shall receive the full amount
			 of his or her earnings per week. This compensation shall be paid during the
			 permanent total disability, as defined in paragraph d. of this subdivision.
			 Payment of the compensation shall be made at the intervals when the earnings
			 were payable, as nearly as may be, unless the parties otherwise agree. The
			 payments, with the approval of the Review Board or by the agreement of the
			 parties, may be made monthly, quarterly, or otherwise as the parties may agree.
			 Payments for permanent total disability shall not be ordered to be paid in a
			 lump sum without the consent of both the employer and the employee.
b. Alteration, Amendment, or Revision of
			 Compensation. - At any time, the employer may petition the Review Board to
			 alter, amend, or revise the award or approval of the compensation on the ground
			 that as a result of physical or vocational rehabilitation, or otherwise, the
			 disability from which the employee suffers is no longer a permanent total
			 disability and, if the Review Board is so satisfied after a hearing, it shall
			 alter, amend, or revise the award accordingly. If compensation for permanent
			 total disability is being paid pursuant to a written agreement between employer
			 and employee without approval, the employer may make application to the Review
			 Board to alter, amend, or revise the agreement on such grounds. If an employee
			 is receiving benefits for permanent total disability other than as a result of
			 an award or a written agreement between the employer and employee and if the
			 employer terminates the payment of the benefits, the employee may, within two
			 years of the last payment, petition the Review Board to reinstate the benefits
			 and, upon a showing that the permanent total disability still exists, shall be
			 entitled to have the benefits reinstated effective the date of the last
			 payment.
c. Employees in Public
			 Institutions. - In case an employee who is permanently and totally disabled
			 becomes an inmate of a public institution, no compensation shall be payable
			 unless the employee has wholly dependent on him or her for support a person or
			 persons named in Rule .04(g) and (h), whose dependency shall be determined as
			 if the employee were deceased, in which case the compensation provided for in
			 this subdivision shall be paid for the benefit of the person so dependent,
			 during dependency, in the manner so ordered by the court, while the employee is
			 an inmate in the institution. Nothing contained herein shall be construed to
			 deprive a permanently and totally disabled employee who has no dependent named
			 in Rule .04(g) and (h) from receiving benefits to which he or she would
			 otherwise be entitled if the employee, although an inmate of a public
			 institution, is paying or on whose behalf funds are paid from any source to the
			 public institution the normal and customary charge for the services rendered by
			 the public institution. Normal and customary charge shall mean that charge
			 actually made by the public institution to persons able to pay for the services
			 rendered them whether the charge actually covers the expense of the upkeep of
			 the inmate or not. If the employee has had a guardian appointed by a court of
			 competent jurisdiction, the employee injury compensation payments shall be
			 directly paid to the guardian.
d.
			 Definition. - The total and permanent loss of the sight of both eyes or the
			 loss of both arms at the shoulder or any physical injury or mental impairment
			 resulting from an accident, which injury or impairment permanently and totally
			 incapacitates the employee from working at and being retrained for gainful
			 employment, shall constitute prima facie evidence of permanent total disability
			 and shall constitute the sole basis on which an award of permanent total
			 disability may be based. Any employee whose disability results from an injury
			 or impairment and who shall have refused to undergo physical or vocational
			 rehabilitation or to accept reasonable accommodation shall not be deemed
			 permanently and totally disabled.
e. Second Permanent Injuries Generally. - If
			 an employee has a permanent disability or has previously sustained another
			 injury than that in which the employee received a subsequent permanent injury
			 by accident, as is specified in this section defining permanent injury, the
			 employee shall be entitled to compensation only for the degree of injury that
			 would have resulted from the latter accident if the earlier disability or
			 injury had not existed.
f. Second
			 Permanent Injury in Same Employment Resulting in Permanent Total Disability. -
			 If an employee receives a permanent injury as specified in this section after
			 having sustained another permanent injury in the same employment, and if the
			 previous and subsequent injuries result in permanent total disability,
			 compensation shall be payable for permanent total disability only.
g. Concurrent Compensation Payments. - If an
			 employee receives an injury for which compensation is payable while he or she
			 is still receiving or entitled to receive compensation for a previous injury in
			 the same employment, he or she shall not at the same time be entitled to
			 compensation for both injuries, unless the later injury is a permanent injury,
			 as specified in this section, but he or she shall be entitled to compensation
			 for that injury and from the time of that injury which will cover the longest
			 period and the largest amount payable under this article and Articles 3 and 4
			 of this program.
h. If an employee
			 receives a permanent injury as specified in this section, after having
			 sustained another permanent injury in the same employment, he or she shall be
			 entitled to compensation for both injuries, subject to paragraph e. of this
			 subdivision, but the total compensation shall be paid by extending the period
			 and not by increasing the amount of weekly compensation, and in no case for
			 permanent partial disability exceeding 700 weeks.
i. Effect of Rehabilitation or Recovery on
			 Permanent Total Disability Benefits. - If an employee who is receiving benefits
			 for permanent total disability shall, as a result of physical or vocational
			 rehabilitation or otherwise, obtain gainful employment, the obligation to pay
			 permanent total disability benefits shall thereupon terminate; provided, that
			 at any time that the employee's weekly wage from the employment shall be less
			 than the employee's weekly wage at the time of injury, the employer shall
			 remain obligated to pay to the employee as compensation an amount equal to 66
			 2/3 percent of the difference, subject to each of the following limitations:
1. The employer's liability for the payment
			 of 66 2/3 percent of the difference shall continue for 200 weeks from the date
			 of reemployment or 300 weeks from the date of injury, whichever is the longer
			 period.
2. In no event shall the
			 amount of weekly benefits paid by the employer to the employee exceed the
			 weekly benefit the employee was receiving for permanent total
			 disability.
3. No payments shall be
			 due for any week the employee earns as much as or more than his or her average
			 weekly wage at the time of injury. If the employee who obtains gainful
			 employment suffered a permanent partial disability as specified in subsection
			 (a), subdivision (3) of this rule, the total amount of compensation paid for
			 permanent total disability shall not be less than that amount which would have
			 been payable for the permanent partial disability.
j. Affidavit of Gainful Employment. - If an
			 employee who is receiving benefits for permanent total disability shall, as the
			 result of physical or vocational rehabilitation, accommodation, or otherwise,
			 obtain gainful employment with an employer other than with his or her former
			 employer, he or she shall, upon securing employment, give to his or her former
			 employer an affidavit in writing containing the name of his or her new
			 employer, the place of employment and the amount of wages being received at the
			 new employment. Until he or she gives the affidavit, the compensation for
			 permanent total disability shall cease. The employer for whom the employee was
			 employed at the time of the accident for which compensation is being paid may
			 also at any time demand of the employee additional affidavit, in writing,
			 containing the name of his or her employer, the place of his or her employment,
			 and the amount of wages he or she is receiving. If the employee, upon demand,
			 fails or refuses to make and furnish the affidavit, his or her rights to
			 compensation shall cease until the affidavit is made and furnished.
(5)
Death Following
			 Disability
. - If an employee sustains an injury occasioned by an
			 accident arising out of and in the course of his or her employment and, during
			 the period of disability caused thereby, death results proximately therefrom,
			 all payments previously made as compensation for the injury shall be deducted
			 from the compensation, if any, due on account of death. If an employee who
			 sustains a permanent partial or permanent total disability, the degree of which
			 has been agreed upon by the parties or has been ascertained by the Review
			 Board, and death results not proximately therefrom, the employee's surviving
			 spouse or dependent children or both shall be entitled to the balance of the
			 payments which would have been due and payable to the worker, whether or not
			 the decedent employee was receiving compensation for permanent total
			 disability, not exceeding, however, the amount that would have been due the
			 surviving spouse or dependent children or both if death had resulted
			 proximately from an injury on account of which compensation is being paid to an
			 employee.
(6)
Hernia
.
a. Proof -
			 For hernia resulting from injury by an accident arising out of and in the
			 course of the employee's employment, it must be definitely proven to the
			 satisfaction of the court all of the following:
1. That there was an injury resulting in
			 hernia.
2. That the hernia appeared
			 suddenly.
3. That it was
			 accompanied by pain.
4. That the
			 hernia immediately followed an accident.
5. That the hernia did not exist prior to the
			 accident for which compensation is claimed.
b. Treatment. - All hernia, inguinal,
			 femoral, or otherwise, proved to be the result of an injury by accident arising
			 out of and in the course of the employment, shall be treated in a surgical
			 manner by radical operation. If the injured employee refuses to undergo the
			 radical operation for the cure of the hernia, no compensation will be allowed
			 during the time the refusal continues. If, however, it is shown that the
			 employee has some chronic disease or is otherwise in physical condition that
			 the Review Board considers it unsafe for the employee to undergo the operation,
			 the employee shall be paid as otherwise provided herein.