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

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?

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

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

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

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

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

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.