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

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

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?

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

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

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