April 16, 2010

2010 Georgia Legislative Update

2010 Georgia Legislative Update

by Chuck DuBose, Esq.


House Bill 1101 has passed the House of Representatives and is currently under consideration by the Senate. As previously reported, this bill would allow the State Board of Workers’ Compensation to publish Awards. HB 1101 also proposes changes to the Guaranty Trust Fund statute to protect against insolvencies. Among other changes the Bill proposes increasing the surety bond or letter of credit requirement to $250,000 (up from $100,000), and also proposes reducing the threshold at which a special assessment may be levied from $7 million to $5 million.



A Bill has also passed through the Georgia House of Representatives which contains provisions by which employers that experience an “emergency circumstance” may buy into the Georgia Insolvency Pool and be shielded from liability if their workers’ compensation insurers become insolvent. House Bill 1364 defines “emergency circumstance” as one “in which an association or industrial insured captive insurance company, which subsequently converted from a captive insurance company, has been declared insolvent prior to the effective date of this Code section.” This Bill was proposed in response to the significant impact of the SEUS (Southeastern U.S. Insurance Co.) insolvency. Under the proposed Bill, employers electing to buy into the Insolvency Pool would pay either $20,000.00 or $5,000.00 into the Insolvency Pool, depending upon the net worth of the employer. This Bill is currently under consideration by the Senate.



There will be no change in the workers’ compensation rates or the mileage rate. Currently the maximum temporary total disability rate is $500 per week and the maximum temporary partial disability rate is $334 per week. These rates have been in effect since July 1, 2007. The mileage rate for travel between an employee’s home and the place of examination, treatment, physical therapy or pharmacy remains 40 cents per mile.


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. Nothing contained in this blog should be construed as legal advice or opinion on specific facts. For editorial comments or suggestions, please contact David W. Willis at (404) 446-4491 or by email at david.willis@davidandrosetti.com.



The End of the Subsequent Injury Trust Fund – Where Do We Stand Now?

The End of the Subsequent Injury Trust Fund – Where Do We Stand Now?

by Alissa C. Atkins, Esq.




David Taylor recently retired from the Subsequent Injury Trust Fund (SITF) as the Deputy Administrator. Jim Beck is currently serving as the Deputy Administrator. Mr. Beck spent five years as a lobbyist for Nationwide Insurance, and is familiar with many of the SITF’s policies. He recently confirmed the SITF’s monthly payout requests were $17.3 million in 2008 and $16 million in 2009. When asked to assume his new position, he was told the SITF was anticipated to have arrearages of approximately 180 million, although he reports it is actually “only” approximately $153 million. Since the SITF is now statutorily capped at receiving $100 million per year with which to pay out claims there will undoubtedly be delays in payment.


The SITF also recently issued an edict wherein the Fund would not agree to proceed with settlement of claims where an MSA was required until CMS had first approved the proposed MSA (if necessary). In view of the decisions we have been receiving from CMS lately some of us have already been bifurcating settlements, settling only the indemnity portion of the claim but withholding final settlement of the medical portion until CMS reviews the proposed MSA, reserving the right not to submit the medical settlement and simply continue paying out medical expenses. Some claimants’ attorneys have expressed frustration with bifurcating settlements in this fashion. They felt claimants’ needs will not be taken into account as some attorneys would lose interest in defending their client’s interests once the indemnity portion of the claim is settled, since claimants’ attorneys cannot take a fee off a medical settlement. Of course, if an employer/insurer refused to pay compensable medical treatment, the claimant would always have the option of returning to his attorney, who could assist him or her and then request assessed attorney’s fees.


With the pending dissolution of the SITF a question arises as to how to protect both employers and employees in cases of pre-existing injury. Previously, employers were protected when hiring an employee with a prior injury because of the SITF, and employees with prior injuries likewise had some measure of protection in the ability to obtain a job. Now, there is a concern that these types of employees may not be hirable in the future, or may not remain employed. While the Americans with Disabilities Act (ADA) may protect some of these employees, the ADA only applies to employers with 25 or more employees. That group constitutes less than 20% of the employers in Georgia.


For now the SITF is scheduled to continue receiving $100 million in annual funds, but this could change in the future. We will keep you posted with further developments.


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. Nothing contained in this blog should be construed as legal advice or opinion on specific facts. For editorial comments or suggestions, please contact David W. Willis at (404) 446-4491 or by replying to this email.

Responsibility for Attendant Care – Compensation for Family Members

Responsibility for Attendant Care – Compensation for Family Members

by Chuck DuBose, Esq.


Recently the Court of Appeals further clarified responsibility for attendant care services. In Medical Office Management v. Hardee, A09A2381 (decided March 23, 2010), the employer appealed an award of attendant care services in which those services were rendered to the employee by her husband. The employee sustained memory problems and vertigo following a blow to the head during a robbery. Three of her medical providers recommended at-home attendant care services as a medical necessity.


The Court of Appeals noted the Georgia Workers’ Compensation Act contains no express prohibition against the recovery by an employee of attendant care services provided by a family member, including a spouse. The Court also noted the fee schedule even contemplates reimbursement for home health care services provided by family members. The Court of Appeals determined that its 1939 decision in Bituminous Casualty Corp. v. Wilbanks (in which the Court had determined the ordinary services of a wife to her husband after his return from a hospital did not constitute compensable treatment under then applicable workers’ compensation law) did not preclude an award of attendant care in this case.


Specifically, the Court noted the Workers’ Compensation Act had changed since 1939 and now requires employers to furnish to employees “other treatment … and services which are prescribed by a licensed physician…which…shall be reasonably required and appear likely to effect a cure, give relief, or restore the employee to suitable employment.” The Court therefore concluded the change expanded benefits to include non-medical, at-home attendant care services. The Court also concluded the employee’s husband was entitled to be reimbursed for the at-home attendant care services he had provided while the employer had denied such services. While it was noted the husband could be expected to assist his brain-damaged wife, he was not legally required to provide the physician-prescribed attendant care. That responsibility, according to the Court of Appeals, fell upon the employer so that the husband was entitled to compensation for providing such care.



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. Nothing contained in this blog should be construed as legal advice or opinion on specific facts. For editorial comments or suggestions, please contact David W. Willis at (404) 446-4491 or by email at david.willis@davidandrosetti.com