February 22, 2010

Could Surveillance As We Know It Be Coming To A Close?

Could Surveillance As We Know It Be Coming To A Close?
by Teesha T. McCrae, Esq.


Colorado’s House Judiciary Committee recently approved H.B. 10-1012. The bill would prohibit employers and insurers from conducting surveillance of workers’ compensation claimants unless they have “a reasonable basis to suspect that the employee has committed fraud or made a material misstatement concerning the claim.” The proposed legislation will now go before the Colorado House Appropriations Committee. Under Colorado’s current law, employers and insurers may initiate surveillance on any workers’ compensation claimant without a showing of probable cause or any other justification.


The effect of Colorado’s proposed legislation is potentially far reaching and not without controversy. In fact, public hearings have been held on this bill at Colorado’s State Capitol. One of the most vocal critics of House Bill 10-1012 is Pinnacol Assurance, a quasi-governmental agency that handles approximately 60% of all workers’ compensation claims in Colorado. Pinnacol contends the proposed legislation makes it easier to commit fraud in Colorado by placing the burden on the employer and insurer to show wrong doing on the part of the claimant before initiating surveillance. Furthermore, surveillance helps to root out claims that are not legitimate so that resources can be focused on those that are. Conversely, proponents of the bill contend surveillance unfairly treats claimants as criminals forcing them to stay locked away in their homes for fear of being followed by cameras. Proponents also state surveillance is nothing more than a thinly veiled attempt to lower the value of the claim by pressuring claimants to settle sooner and for less money.


Attorneys and those in the insurance industry in Colorado are following this development rather closely. If the bill were to pass and become law, Colorado would be faced with the task of defining “reasonable,” which can be a nebulous term. The task of defining “reasonable” would be left to the courts. The extent of the restrictions placed on employers and insurers when investigating claims would be unclear until the courts have had an opportunity to interpret the law. Until then, the law in Colorado (as in Georgia and most states) remains that employers and insurers are free to diligently investigate workers’ compensation claims through the use of surveillance.



If you have questions or comments, please contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com.


February 19, 2010

Medical Marijuana in Workers’ Compensation Claims

Medical Marijuana in Workers’ Compensation Claims
by Alissa C. Atkins, Esq.

Recently, New Jersey became the 14th state to authorize the use of medical marijuana for pain management for “debilitating” or “serious” medical conditions. To date, Georgia does not authorize the use of medical marijuana under any circumstances. However, Tennessee, North Carolina, and Alabama are among 12 additional states with a bill pending to introduce similar legislation.

If legalized in Georgia, doctors could be free to prescribe medical marijuana to injured workers even though the Federal government continues to ban recreational use of the drug. The effect of using marijuana to treat injured workers raises significant issues. Generally, medical management is recommended to provide a better quality of life, but the Georgia Workers’ Compensation Act is specifically designed to return injured workers to work. If an injured worker is capable of working only while taking medicinal marijuana, should the worker be allowed back in the work force? Workers under the influence of drugs in the workplace could be a danger to themselves, their co-workers, customers, and any number of others with whom they come in contact. Potentially, employers and insurance companies who pay for medical marijuana could become liable for super-added injuries caused by drug intoxication. These ramifications suggest that employers and insurance companies could face rampant exposure if workers’ compensation patients are approved to use this drug.

If you have questions or comments, please reply to this email or contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com.

Decline in National Workers’ Compensation Claims

Decline in National Workers’ Compensation Claims
by Alissa C. Atkins, Esq.

NCCI recently released a report entitled “Updated Analysis of Frequency and Severity of Claims Across the Country Valued as of 12/31/2008,” posted at www.NCCI.com. The report is part of an annual update of data collected by NCCI on a national basis determining the frequency and severity of workers’ compensation claims. The analysis found that the frequency of workers’ compensation claims declined 3.4% for the accident year of 2008. However, indemnity severity for the same period increased by 5.8%.

In Georgia, 814 workers’ compensation claims were made per 100,000 workers in 2008, which was an increase of 1.6% over the past year. The numbers for 2005-2007 all reflected a drop in frequency of claims. Costs of indemnity claims increased from an average of $27,426.00 in 2004 to $37,052.00 in 2008, a relatively significant increase, whereas the value of medical benefits also increased, but not as significantly, from an average of $24,245.00 to $29,155.00 over the same time period.

If you have any comments or questions, please call your David & Rosetti attorney at (404) 446-4488 or by visiting our website at www.davidandrosetti.com

Undocumented Workers Entitled to Workers’ Compensation Benefits

Undocumented Workers Entitled to Workers’ Compensation Benefits
by Alissa C. Atkins, Esq.

Two recent decisions at Florida’s appellate level confirmed that undocumented workers were entitled to the equivalent of temporary total disability payments. In the case of Rene Stone Work Corp. v. Gonzalez, the employer/insurer attempted to deny indemnity payments to a claimant who was involved in an injury that resulted in a partial left leg amputation. The employer/insurer contended the claimant’s average weekly wage should be zero because he did not report all of his taxable income in the year 2008, thereby violating Florida law. The First District Court of Appeals ruled on January 25, 2010 that the standard the employer/insurer sought would hold the claimant to a level of accuracy in filing his taxes that Florida did not require. Mr. Gonzalez had filed some tax forms with the help of a CPA. He did not report all of his income from every employer as required on Federal taxes, but did report his income earned with the employer where he was injured. The Court found this to be sufficient.

Based on its decision in this case, the court in JBD Bros. v. Miranda approved the claimant’s request for indemnity benefits despite the fact that he also did not file complete information with the IRS.

Courts in Georgia have refused to penalize employees for failing to include all of their wages in IRS documentation. In 1992, the Georgia Court of Appeals ruled that the average weekly wage of a waiter could be increased by tips, even if the waiter did not properly report the tips as income on his taxes. Pizza Hut Delivery v. Blackwell, 204 Ga. App. 112. Thus, most courts appear to be taking a liberal approach when considering claims filed for weekly benefits.

If you have any comments or questions, please call your David & Rosetti attorney at (404) 446-4488 or by visiting our website at www.davidandrosetti.com

February 18, 2010

Update on Medicare Reporting Requirements - New Deadline

Update on Medicare Reporting Requirements - New Deadline
by: Chuck DuBose, Esq.

The Centers for Medicare & Medicaid (CMS) continues changing the deadlines involved with the new Section 111 Mandatory Medicare Reporting Requirements. CMS just announced it has delayed implementation of the Medicare reporting requirements until January 1, 2011 (rather than April 1, 2010 as previously planned). This delay is certainly welcome news and follows a request by the American Insurance Association (AIA), the Self-Insurance Trade Institute of America, Inc. and various representatives of the insurance industry who claimed that more time was needed. CMS also announced that all RREs (Responsible Reporting Entities) should be registered now and should either be in the file testing state of preparing for it. According to CMS, the file testing stage should be completed by December 31, 2010.

Implementing the reporting deadlines as CMS had previoulsy planned (on April 1, 2010) would undoubtedly have caused significant hardship and possible substantial fines to insurers and self-insured companies, especially in light of the fact that CMS has not yet provided the final reporting parameters to meet the requirements. We will continue our involvement in this important area and keep you updated with any further changes.

If you have any comments or questions, please call your David & Rosetti attorney at (404) 446-4488 or by visiting our website at www.davidandrosetti.com

February 16, 2010

New Prosthetics technology may help catastrophically injured workers return to the workforce

New Prosthetics technology may help catastrophically injured workers return to the workforce
by Lindy Z. Kerr, Esq.

For many employees who have sustained a work injury resulting in amputation, the loss of a limb permanently disables them from performing the only type of jobs they are trained to do. Yet, recent technological advances in medicine may mean that workers who are catastrophically injured because of an amputation will be able to return to work, even in manual labor positions.

Earlier this year a naval officer who lost all five fingers on his left hand was the one of 50 people in the world and the first person in the Southeast to receive a new technology called “Prodigits.” “Prodigits” uses a technology called myoelectrics, which sends signals from muscles to a computer that sends the signal impulse to the prosthetic extremity. The technology allows the prosthetic fingers to move naturally.

The technology is still very new, and still expensive. However, it is foreseeable that in the near future technological advances in prosthetics will allow otherwise catastrophically injured workers to regain function and return to work at a cost that is more manageable for employers and insurers.

If you have questions or comments, please contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com.

Compensability of injuries and deaths caused by violence in the workplace

Compensability of injuries and deaths caused by violence in the workplace
by Lindy Z. Kerr, Esq.


In the aftermath of the recent tragedy in Atlanta committed by former Penske employee Jessie James Warren it is helpful to examine how Georgia treats attacks made in the workplace. In Georgia, an injury or death caused by workplace violence “arises out of and in the course of employment” if the incident is employment-related or even if it is considered a "neutral" risk. The injury or death will generally not be compensable if it is the result of a purely personal attack. For example, in the case of an employee who was shot to death at work by the jealous husband of a former co-worker the Court of Appeals ruled the claim was not a compensable one.

When the injured worker is not the aggressor to an altercation and the incident occurs at work it will generally be considered compensable. Employment-related risks are also found where the nature of the job makes it more likely than not the employee would be a victim of physical violence. For example, in one 1999 case the Court of Appeals found than an assault on a pizza delivery driver was compensable. The Court found his job required that he travel along at all hours in a marked car and come in contact with all sorts of people in an area that was considered "high crime."

If you have questions or comments, please contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com.

U.S. v. Stricker: How Medicare’s aggressive stance on conditional payments affects workers’ compensation settlements

U.S. v. Stricker: How Medicare’s aggressive stance on conditional payments affects workers’ compensation settlements
by Lindy Z. Kerr, Esq.

In December the United States Government used the Medicare Secondary Payer Statute (MSP) as a basis for filing a complaint against both sides of settlement agreement reached in a class action liability claim in 2003. Medicare is seeking to recover conditional payments of medical expenses made on behalf of Medicare-eligible individuals who were part of the settlement. The lawsuit, filed as U.S. v. Stricker, is also seeking a ruling that would require the parties to pay Medicare before any other future payments in the settlement are made.

Several years may pass before there is a final decision in the claim. Nevertheless, the case has immediate implications in the arena of workers’ compensation settlements. The easiest way to determine whether conditional payments have been made is to have a lien verification performed. A lien verification is often one of the services performed by MSA projection companies. If the verification uncovers payments made by Medicare for treatment of the work -related injury then the employer/insurer will need to be prepared to reimburse Medicare for these costs.

The question then becomes, when is it appropriate to do a lien verification since not every claim reaching settlement requires one? Conditional payments only become an issue when the claimant in the workers’ compensation claim is a Medicare beneficiary. Otherwise, Medicare would not have paid for medical expenses that should or could otherwise be covered under workers’ compensation. Therefore, it is important to verify early on whether the claimant is a Medicare beneficiary, prior to filing any settlement agreement with the State Board of Workers’ Compensation. If the claimant is such a beneficiary a lien verification is recommended.

The most prudent course of action is to obtain a lien verification for any settlement involving a Medicare beneficiary, prior to finalizing the terms of settlement or filing any documents. The verification process may require some additional time and resources, but resolving this issue upfront will help avoid uncertainty and allow all parties to move forward without risk of the settlement later being challenged.