March 11, 2011

Immigration Reform Update: House Bill 87

By: Alissa C. Atkins, Esq.

On the heels of Senate Bill (SB) 7, which seeks to prevent undocumented workers from receiving workers' compensation benefits, the Georgia House of Representatives recently voted to pass House Bill (HB) 87. This bill is modeled on the Arizona law that is currently being challenged on constitutional grounds. Should HB 87 become law some of its provisions may significantly affect employers throughout Georgia.

Essentially, HB 87 authorizes state and local police to verify the immigration status of certain suspects. It also mandates that private employers use E-Verify to confirm newly hired workers are legally entitled to work in the United States, and criminally penalizes applicants who "willfully and fraudulently" use false identification to seek employment.

Now that the House has passed the bill, it will move to the Senate. If passed by the Senate the bill will be submitted to Governor Nathan Deal. While the bill is not yet law, employers are questioning what might be required of them. As it stands, the bill does not require employers to use E-Verify to determine work status for current employees. However, the bill underwent 16 drafts prior to passage by the House, so there will likely be more versions of the bill to come. We will continue to update you on developments with the immigration legislation regarding employment and workers' compensation issues.

Read more information on E-Verify:
http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=e7f29589cdb76210VgnVCM100000b92ca60aRCRD&vgnextchannel=e7f29589cdb76210VgnVCM100000b92ca60aRCRD

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.

Chronic Pain and Workers' Compensation Claims

By: Michael E. Memberg, Esq.

The term “pain” has many connotations. Webster’s Dictionary provides at least nine definitions of the word, including: “[a] symptom of some physical hurt or disorder”; “[e]motional distress; a fundamental feeling that people try to avoid”; and “[a] somatic sensation of acute discomfort.”

Recently, TIME conducted a special investigation on this issue ranging from diagnosis to treatment. Articles include discussions on various chronic pain conditions (e.g. chronic regional pain syndrome or fibromyalgia), traditional medical treatments (e.g. medication, surgery, spinal cord stimulators), and alternative treatments (e.g. acupuncture), from the perspective of both medical professionals and patients. The lead article can be viewed here: http://www.time.com/time/health/article/0,8599,2057269,00.html

Both the causation and treatment of chronic pain make it difficult for employers/insurers to handle claims and limit exposure. Every person handles pain differently—one employee might return to work following back surgery, and another might remain totally disabled following a wrist sprain. Furthermore, doctors vary greatly in their opinions on chronic pain—some will immediately refer a patient to pain management, while others believe pain is more psychosomatic and easily exaggerated.

Chronic pain is frustrating for all participants in a workers’ compensation claim—doctors have difficulty diagnosing and treating the pain; employees feel like no one is listening to them; and employer/insurers are often left to pay for years of ongoing benefits. The resulting effect is that workers’ compensation claims involving chronic pain are more likely to linger and are difficult to resolve, particularly in cases where Medicare concerns will arise.

As claims involving chronic pain become increasingly common, it is even more important to maintain good communication with the injured worker and the treating physicians. Employers/insurers may need to consider more alternative treatments options such as massage therapy and acupuncture. As in any claim, there will be red flags and warning signs in these cases that call into question the legitimacy of the claim. However, the longer such a claim takes to resolve the more important it is for the participants involved to consider all options.


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.

Employee’s Willful Misrepresentation May Bar Recovery of Benefits

By: David W. Willis, Esq. and Michael E. Memberg, Esq.

In Georgia Elec. Co. v. Rycroft, 259 Ga. 155, 378 S.E.2d 111 (1989), the Georgia Supreme Court set forth a three part test, whereby an employee’s intentional misrepresentation of his medical condition at the commencement of his employment could bar recovery of workers’ compensation benefits.


The 3 Part Test:

The employee knowingly and willfully made a false representation as to his physical condition at the time of hire;
The employer relied upon the false representation, and this reliance was a substantial factor in the hiring; and
A causal connection existed between the false representation and the employee’s injury.

The Rycroft defense provides employers/insurers with a defense to a workers’ compensation claim if all three elements can be proven by a preponderance of the evidence. A common scenario where the Rycroft defense may arise is when medical records obtained following a work injury indicate the injured worker had a previous injury to the same body part, and this injury or condition was not disclosed to the employer at the time of hire. However, it is incumbent upon employers to ask the right questions. This is most often done in the form of an employment “physical” and/or post-hire medical questionnaire.

Any statements made by the employee, whether written or oral, which intentionally misrepresented his or her medical condition, would satisfy the first element of the Rycroft defense. However, subjective statements such as “I will have no problem performing a job that requires frequent lifting over 50 pounds” may not be specific enough. Statements such as “I have never had a previous back surgery” (when later found to be false) are more along the lines of what is contemplated by Rycroft. The nature of such statements is a fact-specific analysis and will be made on a case-by-case basis.

The second element of Rycroft requires an employer to prove they relied upon the injured worker’s misrepresentation in their hiring decision. The best measure of employer reliance is whether the company still would have hired the employee for the position if that person had not misrepresented his or her condition. Such evidence would usually be obtained through testimony of representatives(s) from the employer. A judge would consider the physical demands of the job when determining whether the employer relied on the misrepresentation—the more strenuous the job, the more likely an employer would turn away a job applicant who reported a previous injury. Additionally, employers who require physicals may have a difficult time establishing reliance on false statement(s) if the employee otherwise passes the physical.

The third element of Rycroft requires a causal connection between the misrepresentation/prior condition and the work injury. An employer does not have to prove the pre-existing condition led to the injury, but there must be some connection between the two. One way to establish this is for an employer/insurer to demonstrate the work injury was more severe because of the misrepresented condition. For example, if an employee re-injures his or her lumbar spine at the site of an undisclosed prior surgical fusion, medical evidence (from records or a medical deposition) may support a causal connection between the injury and the misrepresentation.

In practice, it is often challenging for an employer/insurer to establish the three elements needed for a Rycroft defense, but it should always be considered if the above circumstances arise. The real lesson of Rycroft is that an ounce of prevention is worth a pound of cure. While it may sometimes be cost-prohibitive to require job applicants to undergo a physical or complete a medical questionnaire, there are several opportunities in the hiring process to discover information which could prove invaluable should an injury result down the road.

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.

Updates in Trucking Safety

By: Michael E. Memberg, Esq.

The U.S. Department of Transportation's Federal Motor Carrier Safety Administration (FMCSA) recently issued a regulatory proposal that would revise hours-of-service (HOS) requirements for commercial truck drivers. Under the terms of a court settlement agreement, the FMCSA has to publish a final HOS decision by July 26, 2011.

The proposed changes would include the following:
Drivers can restart their 60/70 hour work week by taking off 34 consecutive hours, but the restart period must include two consecutive off-duty periods from midnight to 6:00 a.m.
All driving must be completed within a 14-hour workday, and all on-duty work-related activities must be completed within 13 hours to allow for at least a one hour break.
Flexibility to extend a driver's daily shift to 16 hours twice a week to accommodate for issues such as loading and unloading at terminals or ports, and allowing drivers to count some time spent parked in their trucks toward off-duty hours.

Commercial truck drivers who violate the proposed rule would face civil penalties of up to $2,750 for each offense. Trucking companies that allow their drivers to violate the proposal's driving limits would face penalties of up to $11,000 for each offense.

Beyond the civil penalties, an increase in driver safety can help reduce the number of work related accidents. Furthermore, there could be a defense to a workers’ compensation claim if the driver willfully disregarded any of these new rules. While willful misconduct is often difficult to prove as a defense in workers’ compensation claims, since the system is “no fault”, a violation of new regulations such as being proposed may open the door for more companies to explore the merits of asserting such a defense.

Additionally, the FMCSA recently enhanced its Pre-Employment Screening Program (PSP) by adding data for co-driver safety and post-crash violations to the roadside inspection and crash records previously available. The PSP report also now shows the date drivers' safety records are updated. Pre-employment checks are a critical part of the overall safety and risk management plan for trucking companies. By taking full advantage of the PSP, trucking companies can help keep dangerous drivers off the road and limit their exposure for workers’ compensation claims.

Further details are available on the Federal Motor Carrier Safety Administration website at http://www.fmcsa.dot.gov

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.

Georgia SuperLawyers

Super Lawyers magazine recently recognized three David and Rosetti Workers' Compensation Defense Attorneys for their achievements. Mike Rosetti was again named a "Super Lawyer" and Christina Bevill and David Willis were named "Rising Stars". Their hard work and dedication to client service have been key ingredients to their success.

Congratulations to all three attorneys!