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

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

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

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

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

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

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

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.