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.
March 11, 2011
Updates in Trucking Safety
By: Michael E. Memberg, Esq.
The U.S. Department of Transportation's Federal Motor Carrier Safety Administration (FMCSA) recently issued a regulatory proposal that would revise hours-of-service (HOS) requirements for commercial truck drivers. Under the terms of a court settlement agreement, the FMCSA has to publish a final HOS decision by July 26, 2011.
The proposed changes would include the following:
Drivers can restart their 60/70 hour work week by taking off 34 consecutive hours, but the restart period must include two consecutive off-duty periods from midnight to 6:00 a.m.
All driving must be completed within a 14-hour workday, and all on-duty work-related activities must be completed within 13 hours to allow for at least a one hour break.
Flexibility to extend a driver's daily shift to 16 hours twice a week to accommodate for issues such as loading and unloading at terminals or ports, and allowing drivers to count some time spent parked in their trucks toward off-duty hours.
Commercial truck drivers who violate the proposed rule would face civil penalties of up to $2,750 for each offense. Trucking companies that allow their drivers to violate the proposal's driving limits would face penalties of up to $11,000 for each offense.
Beyond the civil penalties, an increase in driver safety can help reduce the number of work related accidents. Furthermore, there could be a defense to a workers’ compensation claim if the driver willfully disregarded any of these new rules. While willful misconduct is often difficult to prove as a defense in workers’ compensation claims, since the system is “no fault”, a violation of new regulations such as being proposed may open the door for more companies to explore the merits of asserting such a defense.
Additionally, the FMCSA recently enhanced its Pre-Employment Screening Program (PSP) by adding data for co-driver safety and post-crash violations to the roadside inspection and crash records previously available. The PSP report also now shows the date drivers' safety records are updated. Pre-employment checks are a critical part of the overall safety and risk management plan for trucking companies. By taking full advantage of the PSP, trucking companies can help keep dangerous drivers off the road and limit their exposure for workers’ compensation claims.
Further details are available on the Federal Motor Carrier Safety Administration website at http://www.fmcsa.dot.gov
If you have questions or comments, please reply to this post or contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com.
Nothing contained in this blog should be construed as legal advice or opinion on specific facts. For editorial comments or suggestions, please contact David W. Willis at (404) 446-4491 or david.willis@davidandrosetti.com.
The U.S. Department of Transportation's Federal Motor Carrier Safety Administration (FMCSA) recently issued a regulatory proposal that would revise hours-of-service (HOS) requirements for commercial truck drivers. Under the terms of a court settlement agreement, the FMCSA has to publish a final HOS decision by July 26, 2011.
The proposed changes would include the following:
Drivers can restart their 60/70 hour work week by taking off 34 consecutive hours, but the restart period must include two consecutive off-duty periods from midnight to 6:00 a.m.
All driving must be completed within a 14-hour workday, and all on-duty work-related activities must be completed within 13 hours to allow for at least a one hour break.
Flexibility to extend a driver's daily shift to 16 hours twice a week to accommodate for issues such as loading and unloading at terminals or ports, and allowing drivers to count some time spent parked in their trucks toward off-duty hours.
Commercial truck drivers who violate the proposed rule would face civil penalties of up to $2,750 for each offense. Trucking companies that allow their drivers to violate the proposal's driving limits would face penalties of up to $11,000 for each offense.
Beyond the civil penalties, an increase in driver safety can help reduce the number of work related accidents. Furthermore, there could be a defense to a workers’ compensation claim if the driver willfully disregarded any of these new rules. While willful misconduct is often difficult to prove as a defense in workers’ compensation claims, since the system is “no fault”, a violation of new regulations such as being proposed may open the door for more companies to explore the merits of asserting such a defense.
Additionally, the FMCSA recently enhanced its Pre-Employment Screening Program (PSP) by adding data for co-driver safety and post-crash violations to the roadside inspection and crash records previously available. The PSP report also now shows the date drivers' safety records are updated. Pre-employment checks are a critical part of the overall safety and risk management plan for trucking companies. By taking full advantage of the PSP, trucking companies can help keep dangerous drivers off the road and limit their exposure for workers’ compensation claims.
Further details are available on the Federal Motor Carrier Safety Administration website at http://www.fmcsa.dot.gov
If you have questions or comments, please reply to this post or contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com.
Nothing contained in this blog should be construed as legal advice or opinion on specific facts. For editorial comments or suggestions, please contact David W. Willis at (404) 446-4491 or david.willis@davidandrosetti.com.
Georgia SuperLawyers
Super Lawyers magazine recently recognized three David and Rosetti Workers' Compensation Defense Attorneys for their achievements. Mike Rosetti was again named a "Super Lawyer" and Christina Bevill and David Willis were named "Rising Stars". Their hard work and dedication to client service have been key ingredients to their success.
Congratulations to all three attorneys!
Congratulations to all three attorneys!
February 10, 2011
Proposed Georgia Legislation Seeks to Bar Workers’ Compensation Benefits to Undocumented Workers
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.
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
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.
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
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.
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...
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.
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.
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