January 26, 2011

Does immigration fraud affect an employee’s right to workers’ compensation income benefits?

By Lindy Z. Kerr

In Bollinger Shipyards, Inc. v. Director, OWCP (Rodriguez), 604 F.3d 864 (5th Cir), the 5th Circuit in Louisiana saw the intersection of federal workers’ compensation law under the Longshore Harbor Workers’ Compensation Act (LHWCA) and issues that commonly arise when undocumented workers are disabled as the result of a work injury.

The court held that an undocumented worker injured in the United States was entitled to Federal Workers’ Compensation benefits under the Longshore Harbor Workers’ Compensation Act (LHWCA). The decision is consistent with the position Georgia and other states have taken in state workers’ compensation claims.

In the case, employee Rodriguez falsely told his employer he was a U.S. citizen at the time of hire and provided a false Social Security number. Bollinger Shipyards uncovered the fraud after the employee was injured. In the workers’ compensation claim, the company argued Rodriguez was precluded from workers’ compensation benefits because of his immigration status and fraud. The Court disagreed, reasoning that the plain language definition of “employee” in the LHWCA does not preclude undocumented workers. The Court also rejected the argument that payment of income benefits would be at odds with the holding in the United State Supreme Court case of Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002). In Hoffman, the Supreme Court held the National Labor Relations Board could not award back pay to an undocumented alien who had never been legally authorized to work in the United States as such relief was contrary to federal immigration policy in the Immigration Reform and Control Act of 1986 (IRCA).

Georgia has taken a position similar to the federal court in Rodriguez. As set forth in several appellate decisions following Hoffman Georgia has rejected the argument that an undocumented worker does not meet the definition of “employee” under the Act. Georgia courts have also struck down the argument that paying income benefits to an undocumented worker is at odds with federal immigration policy as set forth in IRCA. In fact, Georgia has held that excusing employers from paying workers’ compensation benefits would reward employers for hiring illegal workers. See Earth First Grading v. Gutierrez, 270 Ga.App. 328, 606 S.E.2d 332 (2004); Continental Pet Technologies, Inc. v. Palacias, 269 Ga. App. 561, 604 S.E.2d 627 (2004). But see Martines v. Worley & Sons Const., 278 Ga. App. 26 (2006)(where light duty work is offered contingent on the claimant bringing documents which prove he can work legally his failure to produce such documents may justify a suspension of weekly benefits).

For questions about Longshore matters contact Lindy Kerr at (404) 446-4486. For questions regarding undocumented workers please contact David Willis at (404) 446-4491.

If you have questions or comments, please reply to this post or contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com. Nothing contained in this newsletter 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 david.willis@davidandrosetti.com.

Study shows more doctors are dispensing drugs at a cost to insurers

By Lindy Z. Kerr

A recently published study from The National Council on Compensation Insurance (NCCI) concludes more doctors are dispensing drugs directly from their office, and the practice is costly. The data used in the study was collected on July 1, 2009 and is for medical services provided between 1996 and 2008 for injuries that occurred between 1994 and 2008. Here are some key findings:

Doctor dispensed drugs often increase prescription costs in a claim because the cost per unit of physician-dispensed drugs is often higher than the cost per unit of the same drug dispensed by a pharmacy.
Nationally, workers’ compensation costs arising from physician-dispensed drugs rose significantly in 2008. In Georgia, there was a higher than average percentage spent on physician dispensed medications. Other states with higher than average percentages include South Carolina, Florida, and Alabama.
In Georgia, the practice of physicians dispensing medication has increased significantly. In 2007 physician dispensed medication only accounted 15% of the total spent on medications. In 2008 physician dispensed medication accounted for over 30% of the total spent on medications.

Ways to keep medicaton costs down:
Most employees have a pharmacy card for filling prescriptions. When possible, encourage employees to fill prescriptions at the pharmacy. Consider contacting the physician’s workers’ compensation coordinator and request medications not be filled at the doctor’s office. Even if the treating physician is not filling prescriptions in house, medication is a costly component of most workers’ compensation claims. Particularly with expensive medications or narcotics, it is important to find out why the particular medication is prescribed, how long it will be prescribed, and whether there are cheaper alternatives. In short, communication with the doctor’s office is key to controlling costs.

If you have questions or comments, please reply to this post or 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 david.willis@davidandrosetti.com.

Administrative Law Judges rotate territories

By Lindy Z. Kerr

Under the administration of Chief Judge Richard S. Thompson, the Board is rotating the Administrative Law Judges’ hearing territories each year. The Board recently released the list of territories for each ALJ for 2011. Notable changes include the rotation of ALJs Hartin, Mason, and Imahara to Atlanta. ALJs Belk, Snow, Fain, and Spalding are no longer hearing cases in Atlanta. ALJ Jocoy was rotated to Laurens County (Dublin), Tift County (Tifton), and surrounding counties. Also, ALJ Bohler left her position in 2010 to go into private practice. Therefore, cases with venue in Glynn County (Brunswick), Ware County (Waycross) and surrounding counties do not have a particular judge assigned until the time of the hearing.

For a comprehensive list of each judge’s territories, please see this document:
http://www.davidandrosetti.com/newsletter/pdf/aljhearing.pdf

If you have questions or comments, please reply to this post or 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 david.willis@davidandrosetti.com.