HORSEPLAY – IT’S NOT ALL FUN AND GAMES

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.

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.

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

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]

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.

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[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

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.

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.

2010 Georgia Legislative Update

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.

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

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.

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 replying to this email.

Responsibility for Attendant Care – Compensation for Family Members

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.

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

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.