August 11, 2010

Workers are retiring later. Does this mean more work injuries?

By: Christina Bevill, Esq.

Workers are working longer and retiring later. Does this mean more injuries? The Wall Street Journal recently reported that at least ten states were increasing the number of years that state employees had to work before becoming entitled to their full pension. A number of older workers have found that they must go back to work or work longer than they originally planned because their retirement is not worth what it once was before the economy took a turn for the worse.


The mere fact that an employee is working longer does not necessarily mean that he is more likely to have a work accident, but it does mean employers should be cognizant of the conditions that can develop with an aging work force. In Georgia, as in many states, the fact that an employee has non-work related condition(s) does not necessarily preclude those conditions from becoming a work-related problem if such conditions are exacerbated or aggravated at work. Thus, workplace safety should be even more of a focus as the employee workforce continues to age. What do you think?

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.

Permanent Partial Disability (PPD) benefits: when are they due?

By: Christina Bevill, Esq.

From time to time a situation arises where an employee is injured on the job, returns to work, is no longer receiving TTD or TPD benefits but continues to receive medical treatment. The question arises when permanent partial disability benefits are due.

Many believe reaching maximum medical improvement determines when permanent partial disability benefits are due. In Georgia, however, reaching maximum medical improvement is not a condition precedent to those benefits. This is why sometimes claimant’s attorneys will request an estimated impairment rating and demand payment of the rating even if the claimant continues to treat. Of course, just because the employee demands payment of PPD benefits does not mean payment is due. It is the employee’s burden to show that his condition is “permanent” in nature, meaning it will not improve during his lifetime. For example, a worker with an amputated finger does not have to wait until a doctor determines he has reached maximum medical improvement because the amputation is permanent. However, an employee with a back injury whose condition may improve (or worsen) over time, may not be entitled to payment of the permanent partial disability rating until after the employee has actually reached maximum medical improvement. Each case will depend on the facts. Follow-up with the authorized treating physician is always recommended.

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.

Has the threat of the WC-205 lost its bite? Selective HR Solutions, Inc. v. Mulligan

by Christina Bevill, Esq.


Does the failure of the employer/insurer to respond to a WC-205 request for advanced authorization of medical treatment or testing, within five business days, trigger a right to payment of that medical care - regardless of whether the underlying injury is work-related? The Court of Appeals has determined it does not.


Ms. Mulligan injured her back at work in July of 2006. She recovered enough to work. In May of 2007 she re-injured her back at home. She treated with a few different doctors and even submitted payment for her medical bills through her private insurance. On October 26, 2007, a treating doctor concluded lumbar surgery was needed and sent a WC-205 to the workers’ compensation insurance carrier requesting authorization to proceed with surgery. On December 11, 2007, the insurance company faxed the form back refusing to authorize the surgery. The surgeon operated three days later. The Board found the employee did not show a change in condition for the worse or that surgery was compensable. The Superior Court affirmed this decision but reversed the award denying medical treatment. The Superior Court found that because the insurance company failed to respond within five business days, there was an obligation to pay for the medical treatment.


The Court of Appeals disagreed and reversed to the extent that Board Rule 205 essentially alters the burden of proof as to compensability in favor of a claimant. The State Board of Workers’ Compensation is limited in its ability to make rules in that the rules must be consistent with the Workers’ Compensation Act and they cannot enlarge, reduce or otherwise affect the substantive rights of the parties. Because the effect of the rule shifts the burden of proof from the claimant to the employer on the issue of compensability, Board Rule 205 is invalid to this extent. However, where compensability is not an issue, failure to timely respond by the employer/insurer may result in civil penalties and attorneys fees. In short, Board Rule 205 becomes ineffective only when there is a dispute as to whether or not an underlying injury is work-related. However, for compensable injuries a Board form WC-205 remains a viable document and should be addressed immediately upon receipt.

If you have questions or comments, 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.