April 19, 2011

Subrogation Liens and the "Made Whole" Doctrine Under Georgia Law

by Chuck DuBose, Esq.

In a recent Georgia Court of Appeals case (Austell Healthcare, Inc. v. Scott, Appeal No. A10A2346, decided March 11, 2011) the Court of Appeals held that an employer and its workers’ compensation insurer were not entitled to enforce a workers’ compensation subrogation lien against a settlement of the claim against the third-party tortfeasors. The claimant was injured in an automobile accident while working for Austell Healthcare. Aside from pursuing a workers’ compensation claim he also filed a personal injury lawsuit against several third parties he claimed were responsible for the accident. Austell Healthcare and their workers’ compensation insurer intervened in that suit. However, after the claimant settled the third party claim the trial court granted his motion to extinguish the subrogation lien asserted by the employer and insurer.

Upon appeal, the Georgia Court of Appeals affirmed the dismissal of the subrogation lien. The Court re-affirmed the principle that, in order to recover on a subrogation lien in work-related injuries, the employer must show the employee has been fully and completely compensated, taking into consideration benefits received under the Workers’ Compensation Act, as well as all economic and non-economic losses incurred as a result of the injury. In this particular case, the Court of Appeals noted the fact that the employer and insurer did not present any evidence that the employee had been fully and completely compensated at any point. While the Court of Appeals noted the trial court erroneously concluded the employer/insurer could not show the employee had been fully compensated because there was no liability award (since the parties settled), the Court again noted the fact that the employer/insurer never attempted to introduce any evidence that the employee had been fully and completely compensated at any point, not even at the hearing on the employee’s motion to extinguish the subrogation lien. This case emphasizes the difficulty in recovering on subrogation liens in Georgia but also emphasizes the importance in providing evidence to support the argument that the employee has been fully and completely compensated in order to recover on a subrogation lien.


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.

Recent Changes in the Georgia Workers' Compensation Medical Fee Schedule

by Chuck DuBose, Esq.

As of April 1, 2011 the State Board of Workers' Compensation made changes in the Medical Fee Schedule. Notable changes include the following:

1. Maximum allowable reimbursements (MAR) have all been recalculated.

2. CPT codes were updated with code additions, deletions and revisions in accordance with the AMA.

3. Ambulance and Air Service transportation reimbursement rates have increased. (see schedule for Ambulance and Air Service Transportation: http://www.davidandrosetti.com/newsletter/april11/2011%20Fee%20Schedule%20Ambulance%20and%20Air%20transportation.pdf)

4. Non-Emergency Transportation reimbursements have increased. (see schedule for Non-Emergency Transportation: http://www.davidandrosetti.com/newsletter/april11/2011%20Fee%20Schedule%20Non-Emergency%20transportation.pdf)

5. Anesthesia base rate has been increased to $36.56.

6. Home Health Services hourly rates have increased. (see schedule for Home Health Services: http://www.davidandrosetti.com/newsletter/april11/2011%20Fee%20Schedule%20Home%20Health%20Services.pdf)

7. Medical Record copy reimbursement. The minimum charge has increased from $25 to $30 for a request for medical records, plus sales tax and postage (for up to 150 pages), with a $0.20 per page charge for any request that is for more than 150 pages. (see medical record reimbursement requirements: http://www.davidandrosetti.com/newsletter/april11/2011%20Fee%20Schedule%20Medical%20Record.pdf)

8. Pharmaceuticals – See IMPORTANT UPDATE concerning generic prescription drugs versus brand-name prescription drugs and concerning reimbursement for prescription drugs: http://www.davidandrosetti.com/newsletter/april11/2011%20Fee%20Schedule%20Pharmaceuticals.pdf

9. Supplies, DME, prosthetics and orthotics, and rental equipment reimbursement is unchanged from 2010. (see schedule for medical supplies: http://www.davidandrosetti.com/newsletter/april11/2011%20Fee%20Schedule%20Medical%20Supplies.pdf)

The Independent Medical Evaluation ( IME) rates remain unchanged from April 1, 2010; $600.00 for the first hour and $150.00 for each additional 15 minutes. For a no-show at an IME, reimbursement shall be at $150.00. Use state-specific code IME01 when billing for IME.

Also, Physician Testimony/Deposition reimbursement remains unchanged from April 1, 2010; $600.00 for the first hour and $150.00 for each additional 15 minutes.



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.

Protection from Falls in the Construction Industry

by Chuck DuBose, Esq.

OSHA Assistant Secretary David Michaels reports that falls are the number one cause of death for workers involved in construction, accounting for more than one-third (actually 34%) of the fatal occupational injuries in construction, ahead of injuries involving being struck by an object, caught-in/between injuries, and injuries involving electrocution. In his statement before Congress last month Assistant Secretary Michaels further reported that nearly half (48%) of all fatal falls in private industry involved construction workers. View the complete transcript of Assistant Secretary Michaels’ statement to Congress: http://www.davidandrosetti.com/newsletter/april11/OSHA_SecretaryMichaels.pdf

On April 8, 2011 OSHA issued Guidelines on Fall Protection in Residential Construction. The new Guidelines issued by OSHA provide safety methods employers can implement during various stages of construction to prevent fall-related injuries and deaths, including anchors for personal fall arrest systems and fall restraints, safety net systems, guardrails, ladders, and scaffolds for activities such as installing roof sheathing, weatherproofing a roof, and installing walls and subfloors, etc. See the OSHA Guidelines on Fall Protection: http://www.davidandrosetti.com/newsletter/april11/OSHA%20Guidelines-Fall%20Protection%20in%20Residential%20Construction.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.

State Board of Workers’ Compensation to Host Regional Seminars in 2011

The Georgia State Board of Workers’ Compensation will be holding four seminars throughout the State this month to assist and educate those who work within the workers’ compensation system in Georgia. These seminars will benefit employers, human resources managers and risk managers, claims adjusters, rehabilitation specialists, medical service providers, and workers’ compensation attorneys and paralegals. The first seminar is scheduled for Friday April 15, 2011 in Columbus. See the full schedule below:

Friday, April 15, 2011 Columbus, GA
Thursday, April 21, 2011 Valdosta, GA
Wednesday, April 27, 2011 Kennesaw, GA
Friday, May 13, 2011 Brunswick, GA

These seminars will be a special benefit to anyone involved in the workers’ compensation system in Georgia. The discussions will include information about income benefits and medical benefits available in Georgia, accessing awards online, the interaction between workers’ compensation and other human resource issues, common litigated issues in workers’ compensation claims, the transition involved in phasing out the Subsequent Injury Trust Fund, and other valuable topics. See Brochure for registering for one of the seminars: http://www.davidandrosetti.com/newsletter/april11/2011%20State%20Board%20Regional%20Seminar%20Brochure.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.