David and Rosetti, LLP

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

2011-04-19T08:02:00.000-07:00

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

2011-04-19T07:51:00.000-07:00

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

2011-04-19T07:48:00.000-07:00

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

2011-04-19T07:46:00.000-07:00

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.

Immigration Reform Update: House Bill 87

2011-03-11T07:51:00.000-08:00

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

2011-03-11T07:50:00.000-08:00

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

2011-03-11T07:48:00.000-08:00

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

2011-03-11T07:47:00.000-08:00

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

2011-03-11T07:46:00.000-08:00

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!

Proposed Georgia Legislation Seeks to Bar Workers’ Compensation Benefits to Undocumented Workers

2011-02-10T06:28:00.000-08:00

By: Alissa C. Atkins, Esq.

On January 25, 2011, a bill was introduced in the Georgia Senate seeking to bar receipt of workers’ compensation benefits by those not legally authorized to work in the United States. The Senate’s First Reader Summary explains that the bill will amend O.C.G.A. § 34-9-1, which relates to general provisions of workers’ compensation, "so as to provide that benefits under such chapter shall not be paid to noncitizens who are not employed legally; to provide that such payments shall not be made unless the noncitizen is present in this country legally at the time such payments are made; to provide for related matters; to repeal conflicting laws; and for other purposes."

The bill was sponsored by six senators, and introduced by Sen. Bill Heath, a Republican from Georgia’s 31st District. Please click here to read the full text of SB 7: http://www.davidandrosetti.com/newsletter/pdf/senatebill7.pdf

After the bill was read to the Senate on January 25th, it was sent to the Senate’s Insurance and Labor Committee for review and public hearings on the topic. The full Senate could vote on the bill in the next 30 to 45 days. The wording of the bill is subject to change, and therefore it is early to speculate on the potential ramifications if the bill is signed into law. Comparable bills have been introduced over the past several years in other states. The result has been the bills either languishing in committee or simply not garnering enough votes to become law. One source at the legislature suggests that the recent November 2010 elections showed increasing support across the country for conservative ideals, leading to renewed efforts at passing legislation to deal with the issue of undocumented workers. Similar bills are now also pending in New Hampshire, South Carolina, and Montana.

As with much legislation, supporters and detractors of the bill have emerged. A number of Georgia claimant attorneys object to the bill. However, many employers and insurers have also expressed concerns about the potential effect the legislation will have on the future of Georgia’s workforce. The key points raised by each side are as follows:

Supporters of S.B.7 contend:

The bill intends to enforce federal employment laws already in existence;
Immigrants will not be prevented from working as long as they obtain proper documentation authorizing their employment;
The overall cost of workers’ compensation claims is expected to decrease, and as a result, workers’ compensation premiums could decrease for employers who comply with the terms of the new law;
Undocumented workers do not have an inalienable right to employment in the United States; and
The bill will not affect employers who only employ workers who are legally authorized to work in the United States.

Opponents of S.B.7 contend:

The bill will unfairly preclude undocumented workers from obtaining employment;
Unscrupulous employers may attempt to hire undocumented workers strictly to avoid exposure for potential workers’ compensation benefits;
If employers hire undocumented workers for this reason, applicants legally entitled to work in the United States will suffer as they will be more expensive to employ;
The exclusive remedy provision of the Workers’ Compensation Act would no longer apply. This provision requires workers to file claims for work-related injuries through the State Board of Workers’ Compensation (even when the worker was at fault or caused the accident) and provides employers with protection from lawsuits in other court systems. Since lawsuits based in tort may subject the liable party to exposure for pain and suffering, employers and insurers could potentially face higher costs for claims involving undocumented workers not otherwise covered by the Act; and
While farms are exempt from the Act, industries with production needs (migrant workers, construction and other fields) which are heavily reliant upon day laborers could be hard hit.

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 Update

2011-02-10T06:26:00.000-08:00

By: David W. Willis, Esq.

Deadline Approaching for Filing the WC-26: March 1, 2011

A WC-26 Consolidated Yearly Report of Medical Only Cases and Annual Payments on Indemnity Claims must be filed with the Board on or before March 1st following each calendar year with respect to all medical and indemnity payments for the previous year for work related injuries. The State Board mandates that a WC-26 be filed annually even if no reportable injuries or payments occurred during the reporting year. For questions or more information please contact a David & Rosetti attorney at 404-446-4488 or you may call the State Board call center at 404-656-3818.

Publishing of Appellate Division Awards

Chairman Rick Thompson recently spoke at the Atlanta Bar Association Worker' Compensation Section luncheon and confirmed that the Board is now publishing Awards issued by the Appellate Division in accordance with O.C.G.A. §34-9-12(b). Chairman Thompson stated that these decisions, while not binding give a window into the Appellate Division’s thinking on relevant and recurrent issues. Appellate decisions are currently available for Awards dating back to October 1, 2009. There are no immediate plans to retroactively publish Awards before that date, mainly because of time, cost and manpower concerns.

To view copies of Awards from the Appellate Division you can visit the State Board at http://sbwc.ga.gov and click on the “Published Awards” section at the top left corner. You can perform a key word search for topics of interest. The Board has taken measures to redact the names of the parties to protect their privacy.

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.

OSHA Update

2011-02-10T06:24:00.000-08:00

By: David W. Willis, Esq.

On January 25th the Occupational Safety and Health Administration (OSHA) announced it had temporarily withdrawn from review by the Office of Management and Budget its proposal to restore a column for work-related musculoskeletal disorders on employer injury and illness logs. OSHA stated this action was undertaken in an effort to obtain more input from small businesses on the impact of the proposal. According to the Bureau of Labor Statistics, these types of conditions accounted for 28% of all reported workplace injuries and illnesses resulting in lost time in 2009. According to OSHA it plans to hold a meeting with the U.S. Small Business Administration's Office of Advocacy to "engage and listen to small businesses" about the agency's proposal. See www.OSHA.gov for more information.

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.

In the News...

2011-02-10T06:14:00.000-08:00

Alissa Atkins Quoted in Business Insurance

Alissa Atkins was recently featured in Business Insurance and is quoted on page 18 of the January 31st issue in the article "States may bar comp for illegal immigrants". Read the article:
http://online.qmags.com/BUI013111?sessionID=D86A73F3BED90C68AD3A8ED73&cid=1398937&eid=16115

New Associates at David & Rosetti, LLP

David & Rosetti, LLP welcomes Michael Memberg and Jennifer Smith as new associates of David & Rosetti, LLP.

Michael received his J.D. in 2008 from the Walter F. George School of Law at Mercer University. He focuses his practice on workers' compensation claims but also has experience on subrogation matters and representing insurers in the defense of general liability claims. Michael’s article, "Tightening the Belt: The Compensability of Gastric Bypass Surgery under the Georgia Workers’ Compensation Act," was published in the State Bar of Georgia Workers' Compensation Section Newsletter, Summer 2007. He was also selected in December 2010 to be a guest on The Layman’s Lawyer, a radio program sponsored by the Atlanta Bar. Michael is active with the Pro Bono Partnership of Atlanta and was recently recognized for his participation.

Jennifer also practices in the area of workers’ compensation defense. She received her J.D., cum laude, from Georgia State University School of Law in 2009. Prior to practicing law, Jennifer worked for nearly ten years with Resurgens Orthopaedics, a large Atlanta-area medical practice. As Director of Reimbursement she handled health insurance contracts, structured workflow and training programs, and designed systems to increase revenue. She also spoke at numerous seminars regarding health insurance contract reimbursement. Today she continues her involvement with the Atlanta Volunteer Lawyers Foundation, an organization she joined during law school.

For more information about Michael and Jennifer please visit our website at www.davidandrosetti.com or call us at (404) 446-4488.

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

2011-01-26T14:21:00.000-08:00

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

2011-01-26T14:20:00.000-08:00

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

2011-01-26T14:17:00.000-08:00

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.

OSHA and Workplace Safety

2010-11-10T14:14:00.000-08:00

By Alissa Atkins

On October 19, 2010 the United Stated Department of Labor issued a regional news release concerning two Kansas City area employers after a worker fell to his death through a roof opening. OSHA found that the employers failed to protect and train the workers from fall hazards. The deceased worker fell 40 feet to his death through a roof opening, after which OSHA proposed $150,000.00 in penalties against one employer working on the site and $145,000.00 in penalties against the other employer.

OSHA’s website states that failure to provide fall protection is one of the ten most frequently cited safety problems. OSHA requires training on fall protection specifically designed to “enable each employee to recognize the hazards of falling.” 29 CFR 126.503(a)(1). They also require training on the correct procedures for erecting, maintaining, disassembling and inspecting fall protection systems, and the use and operation of guardrail systems and personal fall arrest systems including safety nets. Finally, OSHA has a public policy of protecting workers who report safety and health concerns, and accordingly prohibits the firing or retaliation of workers who voice safety or health issues to OSHA.

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

New SITF Settlement Policy for Claims With MSA Trusts

2010-11-10T14:09:00.000-08:00

By Alissa Atkins

The Georgia Subsequent Injury Trust Fund (SITF) recently instituted a new policy pertaining to the settlement of SITF claims in cases requiring Medicare Set-Aside (MSA) trusts. A copy of this policy can be read here: http://www.davidandrosetti.com/newsletter/pdf/SITF.pdf

In short, the SITF has made changes in its business model pertaining to MSAs. Specifically, the SITF has now placed a cap on reimbursing MSA money as part of a workers’ compensation structured settlement. If the annuity quote including seed money is more than $150,000.00, the SITF will not reimburse any amount over $150,000.00 for the MSA. The SITF settlement manager suggests that in some cases the employer/insurer consider contributing the balance above the $150,000.00 threshold “if you have a case that is really one that needs to be settled.” Otherwise, the SITF recommends considering bifurcating settlements, and settling the indemnity portion of the claim while reassessing the medical component of the claim at a later time.

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

The Reduction of Income Benefits Under O.C.G.A. § 34-9-104

2010-11-10T14:07:00.000-08:00

By Alissa Atkins

On October 18, 2010, the Court of Appeals of the State of Georgia revisited the case of Imerys Kaolin v. J. W. Blackshear (A10A1216). In Blackshear, the Court of Appeals addressed O.C.G.A. § 34-9-104 which allows an employer to unilaterally convert an injured worker from temporary total disability (TTD) benefits to temporary partial disability (TPD) benefits once the authorized treating physician releases the employee to return to work with restrictions. However, the employer can only do so if certain notice requirements are met, specifically:

Within 60 days of the employees’ release to return to work with restrictions or limitations, the employer shall provide notice to the employee . . . that he or she has been released to work with limitations or restrictions . . . . Whenever an employer seeks to convert an employee from benefits for total disability to benefits for partial disability as provided in this paragraph, such employer may convert the benefits unilaterally by filing the form indicating the reason for the conversion as prescribed by rule of the Board. O.C.G.A. § 34-9-104(a)(2).

In Blackshear, the claimant injured his hands at work in 2001. He began receiving TTD benefits and was released to return to work with restrictions in June 2001. Based on this release, the employer/insurer informed the claimant in January 2002 that his TTD benefits would be reduced to the TPD level effective June 4, 2002. However, this did not occur. Instead, the employer/insurer obtained a new release from a referral physician on December 31, 2002, based on an evaluation performed in August 2002. The employer/insurer notified the claimant on January 14, 2003 that his benefits would be reduced from TTD to TPD on December 31, 2003. The employer actually reduced benefits in January 2004.

For the next several years the claimant continued to draw TPD benefits. Once those benefits expired in 2008 by operation of law, the claimant requested a recommencement of TTD benefits, indicating that he had never been properly notified of the unilateral reduction of benefits from TTD to TPD pursuant to O.C.G.A. § 34-9-104(a)(2). Finding that the employer did not notify the claimant of the anticipated reduction within 60 days of the original release on June 11, 2001, the administrative law judge reinstated the claimant’s TTD benefits and awarded them back to the date of the reduction in January 2004. The Court of Appeals found the notice provided by the employer was invalid “because it was issued more than 60 days from the time the restrictions were ‘determined.’” Accordingly, the Court of Appeals found that the reduction from TTD benefits to TPD benefits was improper.

This ruling makes it clear more than ever that employers and insurers need to follow the precise rules of O.C.G.A. § 34-9-104 and Board Rule 104. Specifically, (1) a WC-104 must be completed no later than 60 days of the authorized treating physician’s release of the claimant to work with restrictions; (2) the medical report establishing the claimant was released to light-duty work must be attached to the WC-104; (3) a copy of the WC-104 and medical report must be served upon the claimant and his attorney, if represented; and (4) once the claimant remains out of work for 52 consecutive weeks/78 aggregate weeks the employer/insurer must file a WC-2 reflecting the reduction of benefits and attach the WC-104 at that time.

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

Communications With Doctors

2010-10-28T10:39:00.000-07:00

by Mike Rosetti

Another topic gaining momentum is whether defense attorneys are permitted to meet with treating doctors. Questions concerning privacy and legal ethics are raised by such meetings.

The claimant’s bar has relied on the Moreland v. Austin case, decided by the Supreme Court of Georgia, to argue that “ex parte” communications are not permissible in workers’ compensation cases. The Moreland case, however, is not binding since it involves a medical malpractice claim, which is subject to the provisions of HIPAA. Since workers’ compensation is not subject to HIPAA rules associated with the release of information, the case has limited application.

This is an issue which has grown momentum in recent years. The ability of the employer/insurer’s legal representative to meet with treating physicians and provide all information relevant to a claim, instead of their reliance on limited information from a claimant, has allowed parties to successfully move cases forward. The claimant’s bar’s stated concern is that allowing defense attorneys to speak with doctors skews the resulting medical opinion(s). The reality, however, is that most employers/insurers want to ensure that when doctors issue opinions, it is based on all the facts. Simply put, the best way to confirm that all the facts are known is to meet with or speak to the doctor.

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 at david.willis@davidandrosetti.com.

The future of the WC-205 - - the continuing debate

2010-10-28T10:36:00.000-07:00

by Mike Rosetti

Although it was only an official topic for one session, several of the panels addressed the issues associated with this controversial provision. Board form WC-205 allows an authorized treating physician to request pre-authorization for a proposed test or treatment. The form must be signed by the authorized treating physician and sent to the adjuster, who then has five business days to authorize or deny the requested treatment. According to Board Rule 205, the failure to respond to the form within five days renders the requested treatment automatically approved. The recent Court of Appeals of Georgia decision in Mulligan raised doubts about a claimant’s ability to enforce this provision. As noted in our previous newsletter, the Court in Mulligan found the WC-205 could not be used to shift the burden of proof for appropriate medical treatment to the employer/insurer.

A primary concern by claimant’s attorneys is that reasonable and necessary medical treatment is delayed without the WC-205. From the employer/insurer perspective, allowing five business days is not a fair opportunity to evaluate a proposed treatment to determine whether it meets the requirements of O.C.G.A. 34-9-201.

The consensus was that the WC-205 can still be used in certain circumstances, primarily for treatment to compensable body parts being recommended by the authorized treating physician. As such, it remains imperative to respond to a WC-205 request for pre-authorization within five business days. If the proposed treatment is denied, a WC-3 must be filed within 21 days of the date the WC-205 was submitted.

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 at david.willis@davidandrosetti.com.

Honorable Richard S. (Rick) Thompson’s State of the Board address

2010-10-28T10:35:00.000-07:00

by Mike Rosetti

Chairman Thompson delivered a “State of the Board” address to the attendees, addressing some legislative changes as well as important trends.

A. Appellate Division Award to be Published

The most significant legislative update was the requirement that the Board publish Appellate Division awards. While these awards are not necessarily binding precedent, they are persuasive authority and give parties an opportunity to see how the Board is addressing recurring issues.

B.Settlements approved with greater speed; fewer settlements generally

Chairman Thompson referenced the statistics kept by the Board documenting the increased speed with which settlements are approved. In calendar years 2008 and 2009, there were no months in which 90% of settlement were approved within 10 days. By contrast, in every month of this year, at least 90% of settlements were approved within 10 days. Of note, the statistics demonstrated there are fewer settlements being submitted to the Board. In 2009, there were an average of 1,335 settlement submitted to the Board for approval per month. For the first seven months of 2010, there was an average of 1,115 settlement submitted.

C. ALJ Awards issued with greater speed

The speed with which ALJ awards are issued has increased dramatically. In October 2009, only 44% of awards were issued within 60 days. By contrast, in June 2010 (the last month statistics were available), 97% of awards were issued within 60 days of the hearing.

***

The theme of Judge Thompson’s report was that the Board is operating with greater efficiency, and the statistics bear this out. This is beneficial for all parties as quicker resolutions usually lead to decreased costs.

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 at david.willis@davidandrosetti.com.

Georgia Workers' Compensation Annual Seminar

2010-10-28T09:00:00.000-07:00

The annual Georgia workers’ compensation seminar sponsored by the Institute of Continuing Legal Education concluded on October 2, 2010. Nearly 500 lawyers practicing Georgia workers’ compensation law attended the conference. Mike Rosetti co-chaired the event and Ken David presented on “Medicare Madness.” There were several items of note from the conference.

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 at david.willis@davidandrosetti.com.

Don't Forget to File Your 4's!

2010-09-21T11:29:00.000-07:00

by Chuck Dubose, Esq.

The Georgia Workers’ Compensation Act requires that a number of forms be filed during the course of a claim. One such form is the WC-4 Case Progress Report. It is very important to file a WC-4 at the appropriate time. Board Rule 61 requires that a WC-4 be filed in the following situations:
•in both controverted and accepted claims within 180 days of the first date of disability;
•within 30 days from last payment for closure;
•upon request by the State Board;
•every 12 months from the date of the last filing of a form WC-4 on all open cases;
•to reopen a case;
•within 30 days of final payment made pursuant to an approved stipulated settlement, and
•within 90 days of receipt of an open case by the new third party administrator.
The State Board has become more stringent in issuing penalties upon insurance carriers and self-insured employers who are delinquent in filing WC-4 Case Progress Reports by imposing a $500 penalty per claim. The lesson? Don’t Forget To File Your 4’s!

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 at david.willis@davidandrosetti.com.

Are Disability Claims Increasing as the Economy Stabilizes?

2010-09-21T11:26:00.000-07:00

by Chuck Dubose, Esq.

In a September 6, 2010 Business Insurance article the author suggests that the number of workers’ compensation disability claims may increase as employees who previously refrained from filing claims due to fear of losing their jobs in the recession begin to feel more security in their job as the economy begins to stabilize. The author contends that as more employees believe their jobs are better protected they are more likely to pursue disability claims. Alternatively, some feel the number of claims is simply returning to a normal level.

In its August 19, 2010 preliminary release of Census of Fatal Occupational Injuries (CFOI) results, the Bureau of Labor Statistics (BLS) reported the number of workplace fatalities in 2009 was the lowest it has been since the CFOI program began in 1992. According to the BLS 4,340 workplace fatalities were recorded in 2009, down from the 5,218 workplace fatalities in 2008. The BLS concluded economic factors greatly contributed to this decrease, since total hours worked in 2009 decreased by 6 percent in 2009, compared to a 1 percent decline in 2008. The agency also noted some industries which have typically accounted for a larger share of fatal injuries (such as construction) experienced an even larger decline in employment and/or total hours worked.

Even if the economy shows signs of stabilizing it may be too soon to determine how much of an effect this will have on the number of disability claims filed. How do you feel the economy is affecting the number of workers’ compensation claims? Post your response and let us know.

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 at david.willis@davidandrosetti.com.

Can I still Speak With the Doctor?

2010-09-21T11:19:00.000-07:00

by Chuck Dubose, Esq.

During the course of a workers' compensation claim communication with the claimant's treating physician is crucial in order to obtain essential information concerning the claimant's current condition, work status, treatment recommendations, and any opinions concerning permanent impairment. Such communication is important for the employer, insurer and defense counsel in order to effectively manage the claim. Lately, however, there has been more resistance with regard to such communications.
The Georgia Supreme Court recently addressed the issue of communications with medical providers in the case of Baker v. Wellstar Health Systems, Inc., S10A0994 (June 1, 2010). This case is apparently being circulated by claimants’ attorneys who assert that communications between defense attorneys and treating physicians (so-called ex parte communications) should be prohibited.
Baker is not a workers’ compensation case, but stems from a medical malpractice action. It highlights the privacy issues involved with respect to a plaintiff’s medical information and it specifically addresses communications between defense counsel and a plaintiff’s health care providers. In Baker, the Georgia Supreme Court held that communications between defense counsel and treating physicians may be conducted as long as the parties comply with the requirements of HIPAA (Health Insurance Portability and Accountability Act of 1996). HIPAA contains provisions which include obtaining consent of the patient and also include a protective order for otherwise protected health information. However, HIPAA does not apply to workers’ compensation claims. It states that providers "may disclose protected health information as authorized by and to the extent necessary to comply with laws relating to workers’ compensation or other similar programs, established by law, that provide benefits for work-related injuries or illness without regard to fault.

O.C.G.A. § 34-9-207 of the Georgia Workers' Compensation Act provides that once an employee files a workers’ compensation claim or receives income medical benefits, "that employee shall be deemed to have waived any privilege or confidentiality concerning any communications related to the claim or history or treatment of injury arising from the incident the employee has had with any physician, including, but not limited to, communications with psychiatrists or psychologists." Consequently, Baker should not be read to have any impact on the ability to communicate with treating physicians in workers’ compensation claims. However, this is a developing issue. Other states have addressed this differently and have imposed more restrictions on the ability to communicate with treating physicians. We will monitor the situation and provide updated information as it becomes available.

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 at david.willis@davidandrosetti.com.

Mike Rosetti to Speak at National Business Institute Seminar

2010-09-16T06:51:00.000-07:00

Mike Rosetti of David and Rosetti, LLP will speak at the National Business Institute Seminar titled "Workers' Compensation Hearings: Techniques and Strategies for Success".

The Seminar is December 14, 2010 in Atlanta Georgia.
Register at www.nbi-sems.com

Mike Rosetti is an Attorney for David and Rosetti, LLP, a workers' compensation defense firm located in Atlanta, Georgia. www.davidandrosetti.com

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

2010-08-11T06:59:00.000-07:00

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?

2010-08-11T06:56:00.000-07:00

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

2010-08-11T06:52:00.000-07:00

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.

"Pill Mills": The Prescription Drug Industry in Georgia

2010-07-16T08:39:00.001-07:00

by David W. Willis, Esq.

The prescription drug industry in Georgia has become an increasingly hot topic and bears close monitoring by the workers' compensation industry. As has been detailed in recent weeks by the Atlanta Journal-Constitution and other media outlets, a proposed prescription drug monitoring program in Georgia stalled this year in the Georgia legislature which would have discouraged "pill mills" by tracking the dispensation of prescriptions through an electronic database. The database would identify patients who are doctor-shopping and physicians prone to writing large numbers of prescriptions. As reported by the Atlanta Journal-Constitution, as of January 2010, 34 other states had prescription drug monitoring programs in place. Similar legislation promises to be in the works again next year, but for now local governments must be pro-active with monitoring the prescription drug industry.

Employers and insurers should carefully monitor this situation as it pertains to their workers' compensation claims. Addiction consequences of prescription medications (especially narcotics) have been widely discussed but continue to deserve attention. However, pain clinics and pain management doctors who seem to prescribe an unending cocktail of drugs should also be viewed with a critical eye. Are the medications truly helping to reach the goals of giving relief, effecting a cure, or restoring the employee to suitable employment? Are the medications "reasonably required"? Employers and insurers should keep these questions in mind at the outset of any claim, but particularly those in which ongoing medical treatment is required.

Consequences of an Improper Suspension of Benefits

2010-07-16T08:37:00.000-07:00

by David W. Willis, Esq.

The Georgia Court of Appeals recently addressed the notice issue involved with an employee's suspension of benefits. In Bolden v. S&B Engineers & Constructors, Ltd. (decided June 22, 2010) the Court examined the case of an employee who sustained a compensable burn injury to her left hand in June 2006. In November 2006 she began receiving TTD benefits. On March 26, 2007 the treating physician released the employee to light duty work. Unbeknownst to the employee, on April 9, 2007 the doctor indicated she had no more restrictions as related to the original accident. The insurer terminated the employee's benefits on April 24, 2007 without notice or the filing of a WC-2. A short time later the employee requested a hearing seeking a reinstatement of TTD benefits through May 9, 2008, the date she began working for a new employer.

The Court reviewed and cited to a number of previous decisions addressing the notice provisions involved with suspension of benefits. They first examined O.C.G.A.§ 34-9-221(i) and Board Rule 221 which set forth the requirements of an employer/insurer providing 10 days advance notice before suspending benefits based upon a full duty work release. Second, the Court revisited its decisions on several earlier cases dealing with suspension of benefits. The court noted that an improper WC-2 suspension of benefits in some instances may be only a technical violation. See, Sadie Mays Memorial Nursing Home v. Freeman, 295 S.E.2d 340 (1982)(holding an employer which provided the incorrect reason for suspension of benefits on the WC-2 nevertheless placed the employee on notice of a termination of benefits due to a change in condition); Reliance Electric. Co. v. Brightwell 643 S.E.2d 742 (2007)(holding that an employer who provided only six days notice before suspension of benefits needed only to pay the employee the remaining four days of benefits, plus 15% late penalties). However, in other instances the violation is not merely "technical."

Specifically, the Court analogized the case at hand to Russell Morgan v. Velez-Ochoa, 556 S.E.2d 827 (2001). In Russell Morgan, the employer filed a defective WC-2 suspension of benefits. The WC-2 in that case (1) gave the wrong reason for termination, (2) failed to include the required medical reports, (3) failed to explain how to challenge the decision, and (4) failed to give ten days notice before ending its payment of income benefits. The Court affirmed the State Board decision in holding the above defects were not mere technical violations but significant failures by the employer/insurer to afford the employee due process. Id. at 552. Similarly, in this case the Court found that the violation was not merely "technical" as the employer/insurer never filed a WC-2 at all and never explained to the employee why her TTD benefits were being terminated. The Court held that the employee was entitled to a reinstatement of benefits from April 24, 2007 (date of termination) until May 9, 2008 (date the employee returned to work) plus a 15% late payment penalty.
Moral of the story: best practice is to timely and correctly file a WC-2 , but at a minimum notify an employee in writing when benefits are being suspended!

Texting While Driving: Willful Misconduct?

2010-07-16T08:35:00.000-07:00

by David W. Willis, Esq.

Effective July 1, 2010 Georgia Governor Sonny Perdue signed two new "distracted driving" bills into law, Senate Bill 360 and House Bill 23. House Bill 23 prohibits persons under 18 years of age from any use of telecommunication devices while operating a motor vehicle. Senate Bill 360 (the Caleb Sorohan Act) impacts the general populace of Georgia and states: "No person shall operate a motor vehicle on any public road or highway of this state while using a wireless telecommunications device to write, send, or read any text based communication, including but not limited to a text message, instant message, electronic mail, or Internet data." Thus, drivers in Georgia are not prohibited from using mobile phones for talking. However, drivers are barred from writing, reading, texting or otherwise sending any text based communication (i.e. text message, email, internet data) while operating a motor vehicle. The fine for offenders is $150.00 and one point on their driver license.

The new Georgia legislation brings up an interesting question for employees injured while in the course of travel for their employer. As in most states, a Georgia employee injured while driving may have a viable workers' compensation claim,so long as the operation of a motor vehicle is part of their job. However, O.C.G.A.§ 34-9-17(a) can provide a defense to employers and insurers when the injury is due to an employee's "willful misconduct, including … the willful failure or refusal to use a safety appliance or perform a duty required by statute." Could a violation of the new Georgia law provide a defense under this statute.

Historically, Georgia courts have taken a narrow approach when asked to disqualify someone from workers' compensation benefits based upon willful misconduct. Even if the reason for an accidental injury is an employee's negligence or gross negligence this is often not sufficient as a defense. See, Travelers Ins. Co. v. Gaither, 251 S.E.2d 66 (1978). Instead, the courts have usually found that the violation must be a statutory one of a criminal or quasi-criminal nature. When it comes to traffic violations the State Board of Workers' Compensation and appellate courts have given varying decisions, finding that driving the wrong way up a one-way ramp and speeding qualify as acts of "willful misconduct" while improperly lane passing around another vehicle does not.

Whether an employee who is injured while texting (or sending emails, reading emails, instant messaging) and driving has a compensable claim will depend on the particular facts involved. However, given the wide publicity and coverage that accompanied Georgia's newest legislation an employee may be hard-pressed to say their violation of this law was not "willful misconduct." In the weeks and months ahead employers and insurers should be sure to examine this issue closely.

RECENT MEDICARE DEVELOPMENTS: CONDITIONAL PAYMENTS AND MSAs

2010-06-23T08:08:00.000-07:00

By Benjamin I. Jordan, Esq.

1) May 14, 2010 CMS Policy Update

On May 14, 2010 CMS issued a policy to clarify their position regarding off-label and unlabeled uses of prescriptions drugs in MSAs. CMS specifically stated that for claims which settle before June 1, 2010, if the MSA includes the cost of medications prescribed for off-label uses, the claimant may use those funds (from the MSA) to pay for those medications. However, for claims which settle on June 1, 2010 or thereafter which include (in the MSA) medications prescribed for off-label uses, CMS will consider re-pricing the MSA drug costs (eliminating the cost of drugs prescribed for off-label uses). Once the MSA is re-priced, claimants may not use their MSA funds to pay for medications prescribed for off-label uses. Additionally, for claims which settle on or after June 1, 2010 and in which the MSA does not include medications prescribed for off-label uses, claimants are prohibited from using MSA funds to pay for off-label uses.

The practical effect of this change may be that MSAs decrease. In workers' compensation claims, medications are often prescribed for off-label uses (e.g. uses which have not been approved by the FDA). The new CMS policy may have the effect of eliminating several medications frequently seen in MSAs (such as Oxycontin, Actiq, Lidoderm, etc.) which often cause the MSA to be inordinately expensive. Practitioners are hopeful this policy revision will have a positive impact on the ability of claimants and employers/insurers to settle workers’ compensation claims.

2) U.S. v. Stricker – CMS contends no Statute of Limitations on Recovery Actions

On December 1, 2009 the United States filed suit in the U.S. District Court for the Northern District of Alabama against parties to a class action lawsuit and their attorneys, alleging Medicare was not reimbursed from the $300 million class action settlement. Under the Medicare Secondary Payer Statute (MSP), the government specifically contends the parties and their attorneys knew, should have known, or did not ascertain whether the parties receiving settlement payments were Medicare beneficiaries. As a result, the suit alleges that the parties and their attorneys failed to comply with the MSP and are responsible for reimbursing Medicare for conditional payments made by CMS. The U.S. is also seeking damages against several parties.

In response to this lawsuit, the defendants asserted the suit is barred by the statute of limitations. In reply, CMS recently filed a brief arguing (among other things), there is no statute of limitations applicable to CMS recovery actions. While this is merely an argument advanced by CMS in the context of the lawsuit, the prospect of having no limitations as to when CMS can bring a recovery action raises significant concern. Parties to a settlement would have no certainty of avoiding a CMS recovery action unless the parties first obtain the conditional payment amount directly from Medicare. However, obtaining this information can take months and cause harmful delay to the settlement process.

As set forth below, there is a resolution in Congress designed to address this concern, as well as other aspects of the MSP which adversely affect litigants on both sides of workers’ compensation claims.

3) HR 4796 – A Solution?

A proposal in the U.S. House of Representatives, HR 4796 (“The Medicare Secondary Payer Enhancement Act”) is designed to bring more certainty and predictability to Medicare beneficiaries and others participating in resolving beneficiary claims. According to the bill’s proponents, HR 4796 would:

Revise the information flow between parties and Medicare so that the amount owed to CMS can be determined, and paid, before a liability or workers’ compensation settlement;
Create a right of appeal for conditional payments for any party who disagrees with the Medicare Secondary Payer (MSP) calculation;
Establish a three year statute of limitations period from the date the government receives notice of settlement or other payment giving rise to the recovery of payment;
Adopt a sensible MSP recovery threshold so that Medicare does not spend more taxpayer money pursuing a claim than the claim is actually worth;
Remove the requirement that Medicare beneficiaries disclose sensitive personal identification numbers (Social Security and Medicare numbers);
Protect Medicare recipients and facilitate quicker and more efficient payment of settlements to claimants.

For more information, please visit the Medicare Advocacy Recovery Coalition’s website at http://www.marccoalition.com/index.html

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 Gulf Oil Spill : Consequences for the Insurance Industry

2010-06-23T08:03:00.000-07:00

By Benjamin I. Jordan, Esq.

On April 20, 2010, the oil drilling rig Deepwater Horizon, owned by Transocean Ltd. and leased to British Petroleum sank off the coast of Louisiana after an explosion and fire on board. The explosion, which killed 11 rig workers and left a well gushing hundreds of thousands of gallons of oil a day into the Gulf, will have far-reaching consequences for the oil and insurance industries and the way risks are managed. Claims are expected to soar, impacting insurance and reinsurance companies that cover different aspects of the disaster-- including marine hull, marine liability, general liability, environmental/pollution liability, business interruption, directors' and officers' liability and workers' compensation.

A recent projection by Moody’s Investors Service estimated the total insured losses from the oil spill at between $1.4 billion and $3.5 billion. “With several parties involved in the drilling work, dozens of class-action lawsuits filed and the ultimate extent of environmental damage unknown, the complexities associated with loss claims are significant and could take many years to be resolved,” Moody's said. “It's going to take several years to sort out the various liabilities and what resources in terms of insurance assets and other assets each player is going to contribute,” said John Nevius, a shareholder at Anderson Kill & Olick in New York and an expert in environmental insurance coverage. The trickle down effect this catastrophe will have on the insurance industry, and the economy as a whole, is still unknown. According to Marla Donovan, vice president of product developments at Burns & Wilcox, "all liability coverages will be triggered. This is an enormous property damage loss.” Workers’ compensation, excess casualty and liability, environmental and contingent business interruption are just a few of the coverages that will be impacted by this event. Analysts expect reinsurers will be liable for a substantial amount, and some predict the enormity of the loss to lead to across the board price increases for insureds. This all bears close monitoring in the weeks and months ahead.

To read more, please go to the following links :

http://www.insurancejournal.com/news/national/2010/05/11/109710.htm#ixzz0ppmaBLdV

http://www.nasdaq.com/aspx/stock-market-news-story.aspx?storyid=201006030746dowjonesdjonline000524&title=at-a-glancebp-gulf-of-mexico-oil-spill-hits-insurers

HORSEPLAY – IT’S NOT ALL FUN AND GAMES

2010-05-12T12:03:00.000-07:00

by David W. Willis, Esq. and Melissa B. Whitman, Esq.

When are practical jokes in the workplace not funny? When injury results and the employee files a workers' compensation claim. In Georgia, when a nonparticipating employee is injured from a co-worker's "horseplay" the injured worker may be eligible for workers' compensation benefits. On the other hand, an employee who participates in horseplay and becomes injured in the process is probably not eligible for workers' compensation benefits.

There is no bright line definition of "horseplay" to define when an employee is acting outside the scope of his or her employment. As a result, Georgia courts decide what constitutes horseplay on a case-by-case basis. For example, workers' compensation benefits were denied when an employee was injured while engaged in a "finger wrestling match" with another worker (Universal Underwriters Ins. Co. v. Georgia Auto. Dealers Assoc., 182 Ga. App. 595, 356 S.E.2d 686 (1987)). However, benefits were awarded to an employee who, after he stopped engaging in horseplay, was struck by a spitball propelled by a co-worker and became injured. (Baird v. Travelers Ins. Co., 98 Ga. App. 882, 107 S.E.2d 579 (1959)).

What if the employer is aware of the horseplay? An Ohio appeals court recently decided an employer was liable for an employee’s injury when he sustained a neck injury during a river canoe outing, while attending a company team-building event. The employer argued the employee's actions were horseplay. However, the court found that injuries occurring during horseplay are compensable when the employer was "aware of and consented to" the actions which resulted in injury. Georgia has not yet specifically addressed this issue. However, in one older case, Knight v. Liberty Mut. Ins. Co., 131 Ga. App. 409, 233 S.E.2d 453 (1977), the Court of Appeals denied a workers’ compensation claim of an employee who was injured after a co-worker pulled his chair out from under him at work, despite the fact other documented horseplay incidents had occurred at the workplace. Whether Georgia and other jurisdictions begin looking closer at employers' knowledge and/or acquiescence to behaviors of their employees remains to be seen.

Workers’ Compensation in a ‘Precarious' Market – Employers Look For Ways to Reduce Costs and Increase Productivity

2010-05-12T11:59:00.000-07:00

by David W. Willis, Esq. and Melissa B. Whitman, Esq.

On May 6, 2010, NCCI Holdings, Inc. released its annual State of the Line workers’ compensation market analysis. The report noted the workers’ compensation insurance industry had a “trying year in 2009” and a “series of unknown factors – from the pace of economic recovery to the long-term impact of the new federal healthcare law – leaves the line in a precarious position and facing a host of challenges.”[1]

In light of this outlook employers and insurers continue looking for new ways to reduce costs and improve safety in the workplace. Starwood Hotels & Resorts Worldwide, INTEGRIS Health, Inc., and Snap-on, Inc. recently addressed these issues at the Risk & Insurance Management Society Annual Conference & Exhibit. Due to ongoing workers’ compensation losses Starwood was forced to revamp its claims management and safety programs to reduce accident frequency and severity. Starwood began providing incentive programs and safety training to managers to accomplish these goals. INTEGRIS, a 14-hospital system with 9,000 employees improved a “very bad” loss scenario among its nurses by focusing on the practices of its nurses that regularly led to worker injuries, particularly moving patients out of hospital beds. To reduce those injuries, INTEGRIS hired a nurse to assess the physical demands of the job and teach peers how to better protect themselves from injury. The company also purchased equipment to assist nurses in lifting patients from beds. These measures helped create a “safety culture” which have reduced the company’s losses. Wisconsin-based Snap-on, a manufacturer of tools and equipment now treats workers’ compensation training as an employee benefit. At the time of hire employees are handed a DVD explaining their rights and responsibilities, and the responsibilities of doctors, claims administrators and other participants. The video includes testimonials from other injured workers who returned to work. Collectively, these companies have all taken pro-active measures resulting in savings on claims and increased productivity.[2]

__________________________________________________

[1] NCCI News release, located at: https://www.ncci.com/nccimain/AboutNCCI/Newsroom/NewsReleases/Pages/SOLPressRelease2010.aspx

[2] Information obtained at Business Insurance online at: http://online.qmags.com/BUI051010/?sessionID=D86A73F3BED2A8B78DA81DBFC&cid=1398937&eid=15298

A Request for Catastrophic Designation Always Implies An Application for Additional TTD Benefits

2010-05-12T11:53:00.000-07:00

by David W. Willis, Esq. and Melissa B. Whitman, Esq.

The Court of Appeals recently elaborated upon the statute of limitations issue involved in Georgia workers’ compensation claims. In Georgia Institute of Technology, et al., v. Hunnicutt (No. A10A0377, decided April 7, 2010) the Court examined the case of Linda Hunnicutt who experienced a compensable injury on May 6, 1996. The employer/insurer paid weekly TTD weekly benefits until February 2, 2004, the maximum number of weeks (400) available under O.C.G.A. §34-9-261. On July 27, 2005, the employee filed a request for catastrophic designation. She did not specifically ask for additional TTD benefits. The State Board Managed Care and Rehabilitation Division designated the injury as catastrophic in May 2006, but did not address TTD benefits. The employer/insurer appealed that ruling. They subsequently dismissed their appeal with prejudice and agreed to provide the employee with rehabilitation benefits.

On December 17, 2007, the employee filed her own hearing request seeking ongoing TTD benefits as a result of her catastrophic designation. The employer/insurer contended the employee was not entitled to TTD benefits as she was barred by the two year statute of limitation in O.C.G.A. §34-9-104(b). The employee argued that her original July 2005 request for catastrophic rehabilitation either (1) implicitly incorporated a request for further TTD benefits or, in the alternative, (2) tolled the statute of limitation. The employer/insurer responded that her request did not expressly seek income benefits, and therefore neither constituted a timely request for additional income benefits nor tolled the statute of limitation.

O.C.G.A. §34-9-104(b) states, “[A]ny party may apply under this Code section for another decision because of a change in condition [] ending, decreasing, increasing, or authorizing the recovery of income benefits awarded or ordered in the prior final decision, provided that … at the time of the application not more than two years have elapsed since the date the last payment of income benefits pursuant to Code Section 34-9-261 [(TTD income benefits)] … was actually made under [the Workers’ Compensation Act.] The Court also examined the language under O.C.G.A. §34-9-261, which states “in the event of a catastrophic injury as defined in subsection (g) of Code Section 34-9-200.1, the weekly benefit under this Code shall be paid until such time as the employee undergoes a change in condition for the better[.]” (Emphasis supplied.) Here, although the employee did not explicitly request additional TTD benefits in her July 2005 request for catastrophic designation, the Court found her request constituted an application for a “change in condition,” which would authorize the recovery of additional TTD benefits beyond those she had already received. Williams v. Conagra Poultry of Athens, 295 Ga. App. 744 (2009). Because her July 2005 request was filed within two years of the last payment of TTD benefits it was timely and not barred by the statute of limitation.

2010 Georgia Legislative Update

2010-04-16T13:35:00.000-07:00

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.

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

2010-04-16T13:32:00.001-07:00

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.

Responsibility for Attendant Care – Compensation for Family Members

2010-04-16T13:29:00.000-07:00

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.

House of Representatives Passes Bill Permitting the State Board to Publish Awards

2010-03-18T11:57:00.000-07:00

House of Representatives Passes Bill Permitting the State Board to Publish Awards

by Teesha T. McCrae, Esq.

In Georgia, Awards issued by the State Board of Workers’ Compensation are not published. However, this may change if HB 1101 becomes law. The House Industrial Relations Committee approved HB 1101, which was developed by the Advisory Council of the State Board of Workers’ Compensation. The bill has now made it through the House Rules Committee and was passed by the full House of Representatives on March 11, 2010. The bill provides “Nothing in this subsection shall prohibit the Board or its designees from publishing decisions of the Board, provided adequate security measures have been taken to protect the identity and privacy of the parties.” The bill will now go before the Senate for consideration.

Passage of HB 1101 would allow the State Board to enact a plan for publishing awards issued by the State Board without being in violation of the Workers’ Compensation Act. HB 1101 amends O.C.G.A. § 34-9-12(b). Under the current statute, “the records of the Board, insofar as they refer to accidents, injuries, and settlements, shall not be open to the public but only to the parties satisfying the Board of their interest in such records and their right to inspect them.” If HB 1101 becomes law, the language of O.C.G.A. § 34-9-12(b) could no longer be construed as a prohibition against publishing awards issued by the State Board.

Publishing awards issued by the State Board would be helpful to employers and insurers in several respects. First, the resulting transparency would likely lead to a more uniform application of the law. Second, employers and insurers would be better equipped to assess the value of a claim as well as the risks associated with litigating the claim. Finally, reviewing awards could reduce costs and allow for more expeditious resolution of claims.

Whether HB 1101 becomes law and what the State Board decides to do in response remains to be seen. According to the Georgia Self-Insurers Association, Inc., the State Board is committed to publishing decisions in workers’ compensation cases. Nonetheless, the bill must first make it through the Senate. We will closely watch HB 1101 as it makes its way through the legislative process.

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.

Could Surveillance As We Know It Be Coming To A Close?

2010-02-22T11:16:00.000-08:00

Could Surveillance As We Know It Be Coming To A Close?
by Teesha T. McCrae, Esq.

Colorado’s House Judiciary Committee recently approved H.B. 10-1012. The bill would prohibit employers and insurers from conducting surveillance of workers’ compensation claimants unless they have “a reasonable basis to suspect that the employee has committed fraud or made a material misstatement concerning the claim.” The proposed legislation will now go before the Colorado House Appropriations Committee. Under Colorado’s current law, employers and insurers may initiate surveillance on any workers’ compensation claimant without a showing of probable cause or any other justification.

The effect of Colorado’s proposed legislation is potentially far reaching and not without controversy. In fact, public hearings have been held on this bill at Colorado’s State Capitol. One of the most vocal critics of House Bill 10-1012 is Pinnacol Assurance, a quasi-governmental agency that handles approximately 60% of all workers’ compensation claims in Colorado. Pinnacol contends the proposed legislation makes it easier to commit fraud in Colorado by placing the burden on the employer and insurer to show wrong doing on the part of the claimant before initiating surveillance. Furthermore, surveillance helps to root out claims that are not legitimate so that resources can be focused on those that are. Conversely, proponents of the bill contend surveillance unfairly treats claimants as criminals forcing them to stay locked away in their homes for fear of being followed by cameras. Proponents also state surveillance is nothing more than a thinly veiled attempt to lower the value of the claim by pressuring claimants to settle sooner and for less money.

Attorneys and those in the insurance industry in Colorado are following this development rather closely. If the bill were to pass and become law, Colorado would be faced with the task of defining “reasonable,” which can be a nebulous term. The task of defining “reasonable” would be left to the courts. The extent of the restrictions placed on employers and insurers when investigating claims would be unclear until the courts have had an opportunity to interpret the law. Until then, the law in Colorado (as in Georgia and most states) remains that employers and insurers are free to diligently investigate workers’ compensation claims through the use of surveillance.

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.

Medical Marijuana in Workers’ Compensation Claims

2010-02-19T05:57:00.000-08:00

Medical Marijuana in Workers’ Compensation Claims
by Alissa C. Atkins, Esq.

Recently, New Jersey became the 14th state to authorize the use of medical marijuana for pain management for “debilitating” or “serious” medical conditions. To date, Georgia does not authorize the use of medical marijuana under any circumstances. However, Tennessee, North Carolina, and Alabama are among 12 additional states with a bill pending to introduce similar legislation.

If legalized in Georgia, doctors could be free to prescribe medical marijuana to injured workers even though the Federal government continues to ban recreational use of the drug. The effect of using marijuana to treat injured workers raises significant issues. Generally, medical management is recommended to provide a better quality of life, but the Georgia Workers’ Compensation Act is specifically designed to return injured workers to work. If an injured worker is capable of working only while taking medicinal marijuana, should the worker be allowed back in the work force? Workers under the influence of drugs in the workplace could be a danger to themselves, their co-workers, customers, and any number of others with whom they come in contact. Potentially, employers and insurance companies who pay for medical marijuana could become liable for super-added injuries caused by drug intoxication. These ramifications suggest that employers and insurance companies could face rampant exposure if workers’ compensation patients are approved to use this drug.

If you have questions or comments, please reply to this email or contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com.

Decline in National Workers’ Compensation Claims

2010-02-19T05:56:00.000-08:00

Decline in National Workers’ Compensation Claims
by Alissa C. Atkins, Esq.

NCCI recently released a report entitled “Updated Analysis of Frequency and Severity of Claims Across the Country Valued as of 12/31/2008,” posted at www.NCCI.com. The report is part of an annual update of data collected by NCCI on a national basis determining the frequency and severity of workers’ compensation claims. The analysis found that the frequency of workers’ compensation claims declined 3.4% for the accident year of 2008. However, indemnity severity for the same period increased by 5.8%.

In Georgia, 814 workers’ compensation claims were made per 100,000 workers in 2008, which was an increase of 1.6% over the past year. The numbers for 2005-2007 all reflected a drop in frequency of claims. Costs of indemnity claims increased from an average of $27,426.00 in 2004 to $37,052.00 in 2008, a relatively significant increase, whereas the value of medical benefits also increased, but not as significantly, from an average of $24,245.00 to $29,155.00 over the same time period.

If you have any comments or questions, please call your David & Rosetti attorney at (404) 446-4488 or by visiting our website at www.davidandrosetti.com

Undocumented Workers Entitled to Workers’ Compensation Benefits

2010-02-19T05:54:00.000-08:00

Undocumented Workers Entitled to Workers’ Compensation Benefits
by Alissa C. Atkins, Esq.

Two recent decisions at Florida’s appellate level confirmed that undocumented workers were entitled to the equivalent of temporary total disability payments. In the case of Rene Stone Work Corp. v. Gonzalez, the employer/insurer attempted to deny indemnity payments to a claimant who was involved in an injury that resulted in a partial left leg amputation. The employer/insurer contended the claimant’s average weekly wage should be zero because he did not report all of his taxable income in the year 2008, thereby violating Florida law. The First District Court of Appeals ruled on January 25, 2010 that the standard the employer/insurer sought would hold the claimant to a level of accuracy in filing his taxes that Florida did not require. Mr. Gonzalez had filed some tax forms with the help of a CPA. He did not report all of his income from every employer as required on Federal taxes, but did report his income earned with the employer where he was injured. The Court found this to be sufficient.

Based on its decision in this case, the court in JBD Bros. v. Miranda approved the claimant’s request for indemnity benefits despite the fact that he also did not file complete information with the IRS.

Courts in Georgia have refused to penalize employees for failing to include all of their wages in IRS documentation. In 1992, the Georgia Court of Appeals ruled that the average weekly wage of a waiter could be increased by tips, even if the waiter did not properly report the tips as income on his taxes. Pizza Hut Delivery v. Blackwell, 204 Ga. App. 112. Thus, most courts appear to be taking a liberal approach when considering claims filed for weekly benefits.

If you have any comments or questions, please call your David & Rosetti attorney at (404) 446-4488 or by visiting our website at www.davidandrosetti.com

Update on Medicare Reporting Requirements - New Deadline

2010-02-18T09:10:00.001-08:00

Update on Medicare Reporting Requirements - New Deadline
by: Chuck DuBose, Esq.

The Centers for Medicare & Medicaid (CMS) continues changing the deadlines involved with the new Section 111 Mandatory Medicare Reporting Requirements. CMS just announced it has delayed implementation of the Medicare reporting requirements until January 1, 2011 (rather than April 1, 2010 as previously planned). This delay is certainly welcome news and follows a request by the American Insurance Association (AIA), the Self-Insurance Trade Institute of America, Inc. and various representatives of the insurance industry who claimed that more time was needed. CMS also announced that all RREs (Responsible Reporting Entities) should be registered now and should either be in the file testing state of preparing for it. According to CMS, the file testing stage should be completed by December 31, 2010.

Implementing the reporting deadlines as CMS had previoulsy planned (on April 1, 2010) would undoubtedly have caused significant hardship and possible substantial fines to insurers and self-insured companies, especially in light of the fact that CMS has not yet provided the final reporting parameters to meet the requirements. We will continue our involvement in this important area and keep you updated with any further changes.

If you have any comments or questions, please call your David & Rosetti attorney at (404) 446-4488 or by visiting our website at www.davidandrosetti.com

New Prosthetics technology may help catastrophically injured workers return to the workforce

2010-02-16T10:49:00.000-08:00

New Prosthetics technology may help catastrophically injured workers return to the workforce
by Lindy Z. Kerr, Esq.

For many employees who have sustained a work injury resulting in amputation, the loss of a limb permanently disables them from performing the only type of jobs they are trained to do. Yet, recent technological advances in medicine may mean that workers who are catastrophically injured because of an amputation will be able to return to work, even in manual labor positions.

Earlier this year a naval officer who lost all five fingers on his left hand was the one of 50 people in the world and the first person in the Southeast to receive a new technology called “Prodigits.” “Prodigits” uses a technology called myoelectrics, which sends signals from muscles to a computer that sends the signal impulse to the prosthetic extremity. The technology allows the prosthetic fingers to move naturally.

The technology is still very new, and still expensive. However, it is foreseeable that in the near future technological advances in prosthetics will allow otherwise catastrophically injured workers to regain function and return to work at a cost that is more manageable for employers and insurers.

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.

Compensability of injuries and deaths caused by violence in the workplace

2010-02-16T10:47:00.000-08:00

Compensability of injuries and deaths caused by violence in the workplace
by Lindy Z. Kerr, Esq.

In the aftermath of the recent tragedy in Atlanta committed by former Penske employee Jessie James Warren it is helpful to examine how Georgia treats attacks made in the workplace. In Georgia, an injury or death caused by workplace violence “arises out of and in the course of employment” if the incident is employment-related or even if it is considered a "neutral" risk. The injury or death will generally not be compensable if it is the result of a purely personal attack. For example, in the case of an employee who was shot to death at work by the jealous husband of a former co-worker the Court of Appeals ruled the claim was not a compensable one.

When the injured worker is not the aggressor to an altercation and the incident occurs at work it will generally be considered compensable. Employment-related risks are also found where the nature of the job makes it more likely than not the employee would be a victim of physical violence. For example, in one 1999 case the Court of Appeals found than an assault on a pizza delivery driver was compensable. The Court found his job required that he travel along at all hours in a marked car and come in contact with all sorts of people in an area that was considered "high crime."

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.

U.S. v. Stricker: How Medicare’s aggressive stance on conditional payments affects workers’ compensation settlements

2010-02-16T10:39:00.000-08:00

U.S. v. Stricker: How Medicare’s aggressive stance on conditional payments affects workers’ compensation settlements
by Lindy Z. Kerr, Esq.

In December the United States Government used the Medicare Secondary Payer Statute (MSP) as a basis for filing a complaint against both sides of settlement agreement reached in a class action liability claim in 2003. Medicare is seeking to recover conditional payments of medical expenses made on behalf of Medicare-eligible individuals who were part of the settlement. The lawsuit, filed as U.S. v. Stricker, is also seeking a ruling that would require the parties to pay Medicare before any other future payments in the settlement are made.

Several years may pass before there is a final decision in the claim. Nevertheless, the case has immediate implications in the arena of workers’ compensation settlements. The easiest way to determine whether conditional payments have been made is to have a lien verification performed. A lien verification is often one of the services performed by MSA projection companies. If the verification uncovers payments made by Medicare for treatment of the work -related injury then the employer/insurer will need to be prepared to reimburse Medicare for these costs.

The question then becomes, when is it appropriate to do a lien verification since not every claim reaching settlement requires one? Conditional payments only become an issue when the claimant in the workers’ compensation claim is a Medicare beneficiary. Otherwise, Medicare would not have paid for medical expenses that should or could otherwise be covered under workers’ compensation. Therefore, it is important to verify early on whether the claimant is a Medicare beneficiary, prior to filing any settlement agreement with the State Board of Workers’ Compensation. If the claimant is such a beneficiary a lien verification is recommended.

The most prudent course of action is to obtain a lien verification for any settlement involving a Medicare beneficiary, prior to finalizing the terms of settlement or filing any documents. The verification process may require some additional time and resources, but resolving this issue upfront will help avoid uncertainty and allow all parties to move forward without risk of the settlement later being challenged.

U.S. v. Stricker: Enforcement of the Medicare Secondary Payer Act ?

2010-01-14T12:43:00.000-08:00

U.S. v. STRICKER:  ENFORCEMENT OF THE MEDICARE  SECONDARY PAYER ACT?
by Adam L. Katz, Esq.

On December 1, 2009 the United States filed suit against parties and their attorneys alleging that Medicare was not reimbursed from a $300 million class action settlement.   In U.S. v. Stricker, et. al. the United States alleges violations of the Medicare Secondary Payer Statute (MSP). The MSP authorizes Medicare to seek reimbursement for conditional payments made relating to a third party claim, such as a liability suit or workers’ compensation claim. The U.S. alleges that the parties and their attorneys knew, should have known, or did not ascertain whether the parties receiving settlement payments were Medicare beneficiaries. As a result, the suit alleges that the parties and their attorneys failed to comply with the MSP and are liable for reimbursing Medicare for conditional payments made by CMS. The U.S. is also seeking double damages against several parties.

What lesson can be taken from this? U.S. v. Stricker indicates that Medicare will be more aggressive in pursuing reimbursement for conditional payments, from both the parties and their attorneys. Although Stricker involves a class action liability suit the principles of the case also apply to workers’ compensation claims. Therefore, going forward it will be important for parties and their attorneys in workers’ compensation claims to determine whether Medicare should be reimbursed for conditional payments prior to the disbursement of settlement funds.   While developments in the case will bear close attention, Stricker suggests that all parties and attorneys to a claim should be careful to comply with the MSP and take Medicare's interests into account.

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.

Cumulative Trauma Injury Claims

2010-01-13T19:54:00.000-08:00

In Georgia a cumulative injury claim is governed by O.C.G.A. 34-9-1. As with a typical, isolated injury type claim, the employee must prove an accident and injury arising out of and in the course of employment for it to be compensable. The problem with cumulative trauma injuries is the "accident" date and time is not easily discernable. Nevertheless, it can still be compensable under Georgia law. Thomas v. Ford Motor Co., 181 S.E.2d 874 (1971).

Where the employee has a cumulative trauma, or gradual injury, the date of accident to be utilized is the date the injury prevents him or her from working. In other words, the date of accident is typically when disability manifests itself. For "medical only" claims that do not result in any disability the date of accident chosen should be the date the injury, or pain requires medical attention.

Georgia courts are also clear that a cumulative trauma "aggravation" to a pre-existing condition is compensable. There does not need to be a specific incident. The gradual wear and tear of a job is enough as long as it is a contributing factor to the employee's disability and/or medical condition. However, once the aggravation from a cumulative trauma injury ends so does the employer/insurer's responsibility. O.C.G.A. 34-9-1; Worthington Indus. v. Sanks, 492 S.E.2d 753 (1997). The line between a pre-existing condition and cumulative trauma aggravation can be blurry, so it is up to the judge as the factfinder to determine this issue.

David W. Willis
David & Rosetti, LLP
(404) 446-4491
david.willis@davidandrosetti.com
www.davidandrosetti.com

Injuries Must Arise Out of AND In the Course of Employment ...

2009-12-23T08:42:00.000-08:00

On November 9, 2009 the Georgia Court of Appeals underscored a fundamental point in workers’ compensation cases. For an on-the-job injury to be compensable, the injury must not only occur during one's employment, but it must "arise out of" and directly result from the performance of an employee's work duties. St. Joseph’s Hospital, et al., v. Ward, No. A09A1398 (Nov. 9, 2009). Ward worked as a nurse for St. Joseph’s Hospital and asserted workers’ compensation claims for several injuries: left knee (12/19/2003); right knee (6/23/2005); right knee (7/7/2005); and both knees (9/16/2005). Following a hearing the administrative law judge (ALJ) found that the employee sustained a compensable accident on 6/23/2005 when she turned around to get a patient a cup of water and twisted her right knee. She unsuccessfully attempted to return to work on 7/7/2005, then remained out of work until 8/15/2005 when she was offered light duty work. She worked light duty until 9/16/2005 when she went out for right knee replacement surgery. The ALJ found 9/16/2005 to be a fictional date of accident due to a gradual worsening of her condition.

St. Joseph’s appealed and the State Board Appellate Division concluded that, based on the 2004 Court of Appeals decision in Chaparral Boats v. Heath, 269 Ga. App. 339, 606 S.E.2d 567 (2004), the claimant’s right knee injury was not compensable because she was not exposed to any risk unique to her employment by standing and turning, and that, in turning, she did not come into contact with any object or hazard of employment. In Chaparral Boats the Court readdressed the positional risk doctrine and determined that if an employee’s injury was caused by a risk to which they would have been "equally exposed" apart from their employment, and the injury was not related to or caused by any peculiar condition of the employment, the injury was not compensable because there was no causal connection. In other words, the injury did not arise out of the employment. Ward appealed the Appellate Division ruling and the superior court reversed. The Superior Court concluded the Appellate Division misconstrued Chaparral Boats because the employee’s injury “directly resulted from the performance of her work duties of assisting a patient to get the patient a cup of water.”

St. Joseph’s appealed, and the Court of Appeals found that the superior court exceeded its authority when it rejected the Appellate Division’s application of Chaparral Boats. The Court stated, “the Board’s appellate division is authorized to review the evidence adduced before the ALJ, weigh that evidence, and assess witness credibility.” Moreover, “when reviewing awards in workers’ compensation cases, ‘both the appellate court and the superior court must construe the evidence in the light most favorable to the party prevailing before the appellate division of the State Board of Workers’ Compensation. It is axiomatic that the findings of the State Board, when supported by any evidence, are conclusive and binding.’” Quoting Ray Bell Constr. Co. v. King, 281 Ga. 853, 854, 642 S.E.2d 841 (2007).

Thus, the Appellate Division was justified in concluding that Ward was not exposed to any risk unique to her employment by standing and turning. Both the Court of Appeals and the superior court were required to defer to this finding. However, this is the most recent decision in a line of cases addressing the positional risk doctrine. While this represents a shift back to the Court’s position in Chaparral Boats, it remains to be seen whether the Supreme Court of Georgia will grant certiorari and review this case.

David W. Willis, Esq.
Melissa B. Whitman, Esq.
David & Rosetti, LLP
229 Peachtree Street
International Tower, Suite 950
Atlanta, Georgia 30303
Main: (404) 446-4488
Fax: (404) 446-4499

david.willis@davidandrosetti.com
melissa.whitman@davidandrosetti.com

Workers' Compensation Subject to Federal Racketeering Law?

2009-12-15T06:24:00.000-08:00

In a recent article published in Business Insurance it was announced that the U.S. Supreme Court declined to review a Court of Appeals decision which allowed workers compensation claimants to sue an employer and its third-party administrator (TPA) under federal racketeering law. In October 2009 the 6th Circuit Court of Appeals held in Paul Brown vs. Cassens Transport Co. that several employees could pursue a claim for mail and wire fraud violations of RICO (Racketeer Influenced and Corrupt Organizations Act) against their employer and its third-party administrator.

Their allegations were based upon denials of their workers' compensation claims by the employer/self-insurer and third party administrator. Specifically, the plaintiffs alleged that Cassens Transport and its TPA used "unqualified doctors" to give fraudulent medical opinions in support of a denial of their workers compensation claims. The workers also alleged the company, the TPA and doctors committed mail and wire fraud in their communications about the claims.

As expected, employer groups have severely criticized the decision. The case has been remanded back to the trial court level, but if it stands this provides a precedent for federal courts to rule on workers comp claims. Equally as significant is what this may signal for the future. Will this mean communications between employers/insurers and medical providers fall under closer scrutiny, or become barred altogether? Will workers' compensation administrative law judges look closer at doctors providing medical care? Who is to determine whether a doctor is qualified or unqualified, and isn't that what independent medical evaluations (IMEs) and second opinions are for? If an employer and/or claims adjuster cannot effectively communicate with medical providers won't this be detrimental for the overall administration of workers' compensation claims?

The decision bears close watching as all states may be impacted by this decision. Stay tuned for more details.

David W. Willis, Esq.
404-446-4491
david.willis@davidandrosetti.com
www.davidandrosetti.com

Update from the Workers' Compensation Attoney Seminar October 15 - 17, 2009

2009-10-29T13:17:00.000-07:00

A panel of three Administrative Law Judges – Judge Melodie Belcher, Judge Vicki Snow, and Judge William Cain – addressed the workers’ compensation section of the State Bar on October 15, 2009. A major focus of their presentation was good and bad practice habits of employers, insurers, and attorneys.

The Judges made several useful recommendations.

File the Forms: All three judges stressed the importance of filing forms correctly, and timely. Remember to file the WC-1 within 21 days of the employer’s knowledge of the accident. A WC-2 must be filed and served upon both the employee and the employee’s attorney if represented, and failure to provide timely notice of suspension of benefits (10 days) can result in additional benefits owed. A WC-3 must be filed within 21 days of the employer’s knowledge of the accident or within 81 days of a claim which was initially accepted as compensable. Failure to file board forms in a timely manner may result in assessed penalties and attorney’s fees against the employer/insurer.

File the Forms Part II: Filing the proper forms is so important to Administrative Law Judges, they advised that even a form filed after the deadline can avoid penalties and fees, so long as it is filed. The lesson to take from this is to the file the forms, even if they’re late.

Retain Counsel at the Outset of Litigation: Judges do not like having to track down insurers to determine whether they want an attorney to represent them at an upcoming hearing. They also do not like attorneys asking for a continuance because they are new to the file. Hiring an attorney early in the process avoids this frustration. It also helps protect the employer/insurer’s interests and may lead to a greater chance of success at the hearing.

Peer Review is for Medical Bills Only: Peer review is a forum to resolve disputes over medical expenses between medical providers and employers/insurers. The Judges correctly pointed out that peer review was not intended to serve as a substitute for an IME or to negate the opinion of the authorized treating physician.

The Effect Weekly Benefits, Remedial Treatment and Estoppel Have on the All Issues Statute of Limitation

2009-10-26T07:40:00.000-07:00

O.C.G.A. 34-9-82(a) states '[t]he right to compensationn shall be barred unless a claim therefor is filed within one year after injury, except that if payment of weekly benefits has been made or remedial treatment has been furnished by the employer on account of the injury the claim may be filed within one year after the date of the last remedial treatment furnished by the employer or within two years after the date of the last payment of weekly benefits"

If no income benefits are paid or remedial treatment provided, the application of the rule is straight forward. However, when medical benefits are furnished or income benefits paid, issues arise concerning the date the clock begins running for a a claimant to file a timely claim. Those issues include what constitutes remedial treatment and weekly benefits. Read the full article.

by Christina J. Bevill and Benjamin I. Jordan
David and Rosetti, LLP
Workers' Compensation Defense Attorneys in Atlanta, Georgia
http://www.davidandrosetti.com/

So what exactly is an MSA and how does it affect my workers’ compensation claim?

2009-09-29T11:02:00.000-07:00

September 29, 2009

In handling workers’ compensation claims in Georgia we frequently reach the point at which the parties finally decide to settle the claim. Aside from numerous other issues to consider as part of the settlement, we also have to consider the interests of Medicare and determine whether to include a Medicare Set Aside (MSA) as part of our settlement and whether we are required to submit our MSA to the Centers for Medicare and Medicaid Services (CMS) for approval.

The usage of MSA’s in workers’ compensation settlements arose as a result of stricter federal government enforcement of the Medicare Secondary Payer Act (MSP). One of the primary purposes of the MSP is to avoid shifting responsibility for future medical expenses for work-related conditions over to Medicare (so that Medicare will remain a secondary payer if a primary payer exists).

An MSA is essentially an estimate or a projection of lifetime future medical costs covered by Medicare. If an MSA is utilized in a workers’ compensation settlement, a portion of the settlement (the MSA) is set aside to cover medical care needed for the work injury which would otherwise have been covered by the claimant’s Medicare entitlement.

CMS says we should always consider Medicare’s interest when settling any workers’ compensation claim in which we are closing out responsibility for future medical treatment. However, CMS has review thresholds for settlements with MSAs and has indicated it will not review or approve any MSAs which do not meet these criteria:

(1) If the claimant is already a Medicare beneficiary, an MSA should be included in the settlement. The MSA should be submitted to CMS for approval if the settlement is for more than $25,000.

(2) If the claimant has a reasonable expectation of becoming Medicare eligible within 30 months of the date of settlement AND the total settlement amount exceeds $250,000, an MSA should be included and it should be submitted to CMS for approval.

Typically, an individual has a “reasonable expectation” of becoming Medicare eligible within 30 months of the settlement when the individual:

(1) Has applied for Social Security Disability (SSDI) benefits
(2) Has been denied SSDI but anticipates appealing that decision
(3) Is in the process of appealing and/or re-filing an application for SSDI
(4) Is at least 62 ½ years old
(5) Has end stage renal disease (ESRD) but does not yet qualify for Medicare enrollment based upon ESRD.

CMS has announced plans to make available a secure Internet web-based portal or interface so that MSA’s can be submitted for approval online, which will hopefully simplify the process and make it quicker. Stay tuned for more details.

Please visit us at www.davidandrosetti.com

Chuck DuBose, Esq.
404-446-4490

Light duty job offers in workers’ compensation claims

2009-08-25T06:21:00.000-07:00

The light duty job offer is one of the best tools available to employers and insurers in the workers’ compensation arena. A light duty offer helps reduce the cost of claims where an employee is receiving weekly indemnity benefits.

Under O.C.G.A. §34-9-240, an employer/insurer must first present a light duty job description to the authorized treating physician. This is usually done on a form WC-240a which sets forth the details and specific requirements of the light duty job. Next, if the doctor approves the job, the employer/insurer should make a formal “job offer” on a form WC-240 to the employee (and their attorney, if represented) with at least 10 days advance notice. The signed WC-240a should be attached behind the form WC-240. If the employee fails to show up for the light duty job assignment her weekly disability benefits may be suspended immediately. Usually, the employee will appear and briefly “attempt” the job. If she does not continue working at least 15 days she is entitled to a resumption of benefits; however, the employer/insurer can request a hearing on the suitability of the light duty job and request that weekly benefits be suspended.

An employer committed to offering light duty work to injured employees can help drive down the cost of claims. More often than not this will also help to get the claim resolved.

Please visit us at www.davidandrosetti.com

David W. Willis, Esq.

Controlling medical costs in workers' compensation claims

2009-07-31T10:18:00.000-07:00

As a workers' compensation defense attorney in Georgia I frequently handle claims in which the choice of doctor in a claim has a tremendous impact on the outcome of the claim. In Georgia employers generally have control of the physician-selection process in connection with workers' compensation claims, as long as they post a proper panel of physicians. Georgia law requires a posted panel to include at least six unassociated physicians, including at least one orthopedic, no more than two industrial clinics, and posted panels should include at least one minority physician. Aside from having the proper number and type of doctors listed on the panel, employers should post the panel in prominent places where employees can see the panel, and employers should also take steps to make sure employees understand the purpose of the panel and their rights under the workers' compensation system.

It is important to know the doctors and providers listed on your panel. For more information about this issue or to find specific doctors or providers visit us at www.davidandrosetti.com.

Chuck DuBose, Esq.
chuck.dubose@davidandrosetti.com