Injuries Must Arise Out of AND In the Course of Employment ...

On November 9, 2009 the Georgia Court of Appeals underscored a fundamental point in workers’ compensation cases. For an on-the-job injury to be compensable, the injury must not only occur during one's employment, but it must "arise out of" and directly result from the performance of an employee's work duties. St. Joseph’s Hospital, et al., v. Ward, No. A09A1398 (Nov. 9, 2009). Ward worked as a nurse for St. Joseph’s Hospital and asserted workers’ compensation claims for several injuries: left knee (12/19/2003); right knee (6/23/2005); right knee (7/7/2005); and both knees (9/16/2005). Following a hearing the administrative law judge (ALJ) found that the employee sustained a compensable accident on 6/23/2005 when she turned around to get a patient a cup of water and twisted her right knee. She unsuccessfully attempted to return to work on 7/7/2005, then remained out of work until 8/15/2005 when she was offered light duty work. She worked light duty until 9/16/2005 when she went out for right knee replacement surgery. The ALJ found 9/16/2005 to be a fictional date of accident due to a gradual worsening of her condition.

St. Joseph’s appealed and the State Board Appellate Division concluded that, based on the 2004 Court of Appeals decision in Chaparral Boats v. Heath, 269 Ga. App. 339, 606 S.E.2d 567 (2004), the claimant’s right knee injury was not compensable because she was not exposed to any risk unique to her employment by standing and turning, and that, in turning, she did not come into contact with any object or hazard of employment. In Chaparral Boats the Court readdressed the positional risk doctrine and determined that if an employee’s injury was caused by a risk to which they would have been "equally exposed" apart from their employment, and the injury was not related to or caused by any peculiar condition of the employment, the injury was not compensable because there was no causal connection. In other words, the injury did not arise out of the employment. Ward appealed the Appellate Division ruling and the superior court reversed. The Superior Court concluded the Appellate Division misconstrued Chaparral Boats because the employee’s injury “directly resulted from the performance of her work duties of assisting a patient to get the patient a cup of water.”

St. Joseph’s appealed, and the Court of Appeals found that the superior court exceeded its authority when it rejected the Appellate Division’s application of Chaparral Boats. The Court stated, “the Board’s appellate division is authorized to review the evidence adduced before the ALJ, weigh that evidence, and assess witness credibility.” Moreover, “when reviewing awards in workers’ compensation cases, ‘both the appellate court and the superior court must construe the evidence in the light most favorable to the party prevailing before the appellate division of the State Board of Workers’ Compensation. It is axiomatic that the findings of the State Board, when supported by any evidence, are conclusive and binding.’” Quoting Ray Bell Constr. Co. v. King, 281 Ga. 853, 854, 642 S.E.2d 841 (2007).

Thus, the Appellate Division was justified in concluding that Ward was not exposed to any risk unique to her employment by standing and turning. Both the Court of Appeals and the superior court were required to defer to this finding. However, this is the most recent decision in a line of cases addressing the positional risk doctrine. While this represents a shift back to the Court’s position in Chaparral Boats, it remains to be seen whether the Supreme Court of Georgia will grant certiorari and review this case.

David W. Willis, Esq.
Melissa B. Whitman, Esq.
David & Rosetti, LLP
229 Peachtree Street
International Tower, Suite 950
Atlanta, Georgia 30303
Main: (404) 446-4488
Fax: (404) 446-4499

david.willis@davidandrosetti.com
melissa.whitman@davidandrosetti.com

Workers' Compensation Subject to Federal Racketeering Law?

In a recent article published in Business Insurance it was announced that the U.S. Supreme Court declined to review a Court of Appeals decision which allowed workers compensation claimants to sue an employer and its third-party administrator (TPA) under federal racketeering law. In October 2009 the 6th Circuit Court of Appeals held in Paul Brown vs. Cassens Transport Co. that several employees could pursue a claim for mail and wire fraud violations of RICO (Racketeer Influenced and Corrupt Organizations Act) against their employer and its third-party administrator.

Their allegations were based upon denials of their workers' compensation claims by the employer/self-insurer and third party administrator. Specifically, the plaintiffs alleged that Cassens Transport and its TPA used "unqualified doctors" to give fraudulent medical opinions in support of a denial of their workers compensation claims. The workers also alleged the company, the TPA and doctors committed mail and wire fraud in their communications about the claims.

As expected, employer groups have severely criticized the decision. The case has been remanded back to the trial court level, but if it stands this provides a precedent for federal courts to rule on workers comp claims. Equally as significant is what this may signal for the future. Will this mean communications between employers/insurers and medical providers fall under closer scrutiny, or become barred altogether? Will workers' compensation administrative law judges look closer at doctors providing medical care? Who is to determine whether a doctor is qualified or unqualified, and isn't that what independent medical evaluations (IMEs) and second opinions are for? If an employer and/or claims adjuster cannot effectively communicate with medical providers won't this be detrimental for the overall administration of workers' compensation claims?

The decision bears close watching as all states may be impacted by this decision. Stay tuned for more details.


David W. Willis, Esq.
404-446-4491
david.willis@davidandrosetti.com
www.davidandrosetti.com

Update from the Workers' Compensation Attoney Seminar October 15 - 17, 2009

A panel of three Administrative Law Judges – Judge Melodie Belcher, Judge Vicki Snow, and Judge William Cain – addressed the workers’ compensation section of the State Bar on October 15, 2009. A major focus of their presentation was good and bad practice habits of employers, insurers, and attorneys.

The Judges made several useful recommendations.

• File the Forms: All three judges stressed the importance of filing forms correctly, and timely. Remember to file the WC-1 within 21 days of the employer’s knowledge of the accident. A WC-2 must be filed and served upon both the employee and the employee’s attorney if represented, and failure to provide timely notice of suspension of benefits (10 days) can result in additional benefits owed. A WC-3 must be filed within 21 days of the employer’s knowledge of the accident or within 81 days of a claim which was initially accepted as compensable. Failure to file board forms in a timely manner may result in assessed penalties and attorney’s fees against the employer/insurer.

• File the Forms Part II: Filing the proper forms is so important to Administrative Law Judges, they advised that even a form filed after the deadline can avoid penalties and fees, so long as it is filed. The lesson to take from this is to the file the forms, even if they’re late.

• Retain Counsel at the Outset of Litigation: Judges do not like having to track down insurers to determine whether they want an attorney to represent them at an upcoming hearing. They also do not like attorneys asking for a continuance because they are new to the file. Hiring an attorney early in the process avoids this frustration. It also helps protect the employer/insurer’s interests and may lead to a greater chance of success at the hearing.

• Peer Review is for Medical Bills Only: Peer review is a forum to resolve disputes over medical expenses between medical providers and employers/insurers. The Judges correctly pointed out that peer review was not intended to serve as a substitute for an IME or to negate the opinion of the authorized treating physician.

The Effect Weekly Benefits, Remedial Treatment and Estoppel Have on the All Issues Statute of Limitation

O.C.G.A. 34-9-82(a) states '[t]he right to compensationn shall be barred unless a claim therefor is filed within one year after injury, except that if payment of weekly benefits has been made or remedial treatment has been furnished by the employer on account of the injury the claim may be filed within one year after the date of the last remedial treatment furnished by the employer or within two years after the date of the last payment of weekly benefits"

If no income benefits are paid or remedial treatment provided, the application of the rule is straight forward. However, when medical benefits are furnished or income benefits paid, issues arise concerning the date the clock begins running for a a claimant to file a timely claim. Those issues include what constitutes remedial treatment and weekly benefits. Read the full article.


by Christina J. Bevill and Benjamin I. Jordan
David and Rosetti, LLP
Workers' Compensation Defense Attorneys in Atlanta, Georgia
http://www.davidandrosetti.com/

So what exactly is an MSA and how does it affect my workers’ compensation claim?

September 29, 2009

In handling workers’ compensation claims in Georgia we frequently reach the point at which the parties finally decide to settle the claim. Aside from numerous other issues to consider as part of the settlement, we also have to consider the interests of Medicare and determine whether to include a Medicare Set Aside (MSA) as part of our settlement and whether we are required to submit our MSA to the Centers for Medicare and Medicaid Services (CMS) for approval.

The usage of MSA’s in workers’ compensation settlements arose as a result of stricter federal government enforcement of the Medicare Secondary Payer Act (MSP). One of the primary purposes of the MSP is to avoid shifting responsibility for future medical expenses for work-related conditions over to Medicare (so that Medicare will remain a secondary payer if a primary payer exists).

An MSA is essentially an estimate or a projection of lifetime future medical costs covered by Medicare. If an MSA is utilized in a workers’ compensation settlement, a portion of the settlement (the MSA) is set aside to cover medical care needed for the work injury which would otherwise have been covered by the claimant’s Medicare entitlement.

CMS says we should always consider Medicare’s interest when settling any workers’ compensation claim in which we are closing out responsibility for future medical treatment. However, CMS has review thresholds for settlements with MSAs and has indicated it will not review or approve any MSAs which do not meet these criteria:

(1) If the claimant is already a Medicare beneficiary, an MSA should be included in the settlement. The MSA should be submitted to CMS for approval if the settlement is for more than $25,000.

(2) If the claimant has a reasonable expectation of becoming Medicare eligible within 30 months of the date of settlement AND the total settlement amount exceeds $250,000, an MSA should be included and it should be submitted to CMS for approval.

Typically, an individual has a “reasonable expectation” of becoming Medicare eligible within 30 months of the settlement when the individual:

(1) Has applied for Social Security Disability (SSDI) benefits
(2) Has been denied SSDI but anticipates appealing that decision
(3) Is in the process of appealing and/or re-filing an application for SSDI
(4) Is at least 62 ½ years old
(5) Has end stage renal disease (ESRD) but does not yet qualify for Medicare enrollment based upon ESRD.

CMS has announced plans to make available a secure Internet web-based portal or interface so that MSA’s can be submitted for approval online, which will hopefully simplify the process and make it quicker. Stay tuned for more details.

Please visit us at www.davidandrosetti.com

Chuck DuBose, Esq.
404-446-4490

Light duty job offers in workers’ compensation claims

The light duty job offer is one of the best tools available to employers and insurers in the workers’ compensation arena. A light duty offer helps reduce the cost of claims where an employee is receiving weekly indemnity benefits.

Under O.C.G.A. §34-9-240, an employer/insurer must first present a light duty job description to the authorized treating physician. This is usually done on a form WC-240a which sets forth the details and specific requirements of the light duty job. Next, if the doctor approves the job, the employer/insurer should make a formal “job offer” on a form WC-240 to the employee (and their attorney, if represented) with at least 10 days advance notice. The signed WC-240a should be attached behind the form WC-240. If the employee fails to show up for the light duty job assignment her weekly disability benefits may be suspended immediately. Usually, the employee will appear and briefly “attempt” the job. If she does not continue working at least 15 days she is entitled to a resumption of benefits; however, the employer/insurer can request a hearing on the suitability of the light duty job and request that weekly benefits be suspended.

An employer committed to offering light duty work to injured employees can help drive down the cost of claims. More often than not this will also help to get the claim resolved.

Please visit us at www.davidandrosetti.com

David W. Willis, Esq.

Controlling medical costs in workers' compensation claims

As a workers' compensation defense attorney in Georgia I frequently handle claims in which the choice of doctor in a claim has a tremendous impact on the outcome of the claim. In Georgia employers generally have control of the physician-selection process in connection with workers' compensation claims, as long as they post a proper panel of physicians. Georgia law requires a posted panel to include at least six unassociated physicians, including at least one orthopedic, no more than two industrial clinics, and posted panels should include at least one minority physician. Aside from having the proper number and type of doctors listed on the panel, employers should post the panel in prominent places where employees can see the panel, and employers should also take steps to make sure employees understand the purpose of the panel and their rights under the workers' compensation system.

It is important to know the doctors and providers listed on your panel. For more information about this issue or to find specific doctors or providers visit us at www.davidandrosetti.com.

Chuck DuBose, Esq.
chuck.dubose@davidandrosetti.com