By Alissa Atkins
On October 19, 2010 the United Stated Department of Labor issued a regional news release concerning two Kansas City area employers after a worker fell to his death through a roof opening. OSHA found that the employers failed to protect and train the workers from fall hazards. The deceased worker fell 40 feet to his death through a roof opening, after which OSHA proposed $150,000.00 in penalties against one employer working on the site and $145,000.00 in penalties against the other employer.
OSHA’s website states that failure to provide fall protection is one of the ten most frequently cited safety problems. OSHA requires training on fall protection specifically designed to “enable each employee to recognize the hazards of falling.” 29 CFR 126.503(a)(1). They also require training on the correct procedures for erecting, maintaining, disassembling and inspecting fall protection systems, and the use and operation of guardrail systems and personal fall arrest systems including safety nets. Finally, OSHA has a public policy of protecting workers who report safety and health concerns, and accordingly prohibits the firing or retaliation of workers who voice safety or health issues to OSHA.
If you have questions or comments, please reply to this blog 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 at david.willis@davidandrosetti.com.
November 10, 2010
New SITF Settlement Policy for Claims With MSA Trusts
By Alissa Atkins
The Georgia Subsequent Injury Trust Fund (SITF) recently instituted a new policy pertaining to the settlement of SITF claims in cases requiring Medicare Set-Aside (MSA) trusts. A copy of this policy can be read here: http://www.davidandrosetti.com/newsletter/pdf/SITF.pdf
In short, the SITF has made changes in its business model pertaining to MSAs. Specifically, the SITF has now placed a cap on reimbursing MSA money as part of a workers’ compensation structured settlement. If the annuity quote including seed money is more than $150,000.00, the SITF will not reimburse any amount over $150,000.00 for the MSA. The SITF settlement manager suggests that in some cases the employer/insurer consider contributing the balance above the $150,000.00 threshold “if you have a case that is really one that needs to be settled.” Otherwise, the SITF recommends considering bifurcating settlements, and settling the indemnity portion of the claim while reassessing the medical component of the claim at a later time.
If you have questions or comments, please reply to this blog 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 at david.willis@davidandrosetti.com.
The Georgia Subsequent Injury Trust Fund (SITF) recently instituted a new policy pertaining to the settlement of SITF claims in cases requiring Medicare Set-Aside (MSA) trusts. A copy of this policy can be read here: http://www.davidandrosetti.com/newsletter/pdf/SITF.pdf
In short, the SITF has made changes in its business model pertaining to MSAs. Specifically, the SITF has now placed a cap on reimbursing MSA money as part of a workers’ compensation structured settlement. If the annuity quote including seed money is more than $150,000.00, the SITF will not reimburse any amount over $150,000.00 for the MSA. The SITF settlement manager suggests that in some cases the employer/insurer consider contributing the balance above the $150,000.00 threshold “if you have a case that is really one that needs to be settled.” Otherwise, the SITF recommends considering bifurcating settlements, and settling the indemnity portion of the claim while reassessing the medical component of the claim at a later time.
If you have questions or comments, please reply to this blog 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 at david.willis@davidandrosetti.com.
The Reduction of Income Benefits Under O.C.G.A. § 34-9-104
By Alissa Atkins
On October 18, 2010, the Court of Appeals of the State of Georgia revisited the case of Imerys Kaolin v. J. W. Blackshear (A10A1216). In Blackshear, the Court of Appeals addressed O.C.G.A. § 34-9-104 which allows an employer to unilaterally convert an injured worker from temporary total disability (TTD) benefits to temporary partial disability (TPD) benefits once the authorized treating physician releases the employee to return to work with restrictions. However, the employer can only do so if certain notice requirements are met, specifically:
Within 60 days of the employees’ release to return to work with restrictions or limitations, the employer shall provide notice to the employee . . . that he or she has been released to work with limitations or restrictions . . . . Whenever an employer seeks to convert an employee from benefits for total disability to benefits for partial disability as provided in this paragraph, such employer may convert the benefits unilaterally by filing the form indicating the reason for the conversion as prescribed by rule of the Board. O.C.G.A. § 34-9-104(a)(2).
In Blackshear, the claimant injured his hands at work in 2001. He began receiving TTD benefits and was released to return to work with restrictions in June 2001. Based on this release, the employer/insurer informed the claimant in January 2002 that his TTD benefits would be reduced to the TPD level effective June 4, 2002. However, this did not occur. Instead, the employer/insurer obtained a new release from a referral physician on December 31, 2002, based on an evaluation performed in August 2002. The employer/insurer notified the claimant on January 14, 2003 that his benefits would be reduced from TTD to TPD on December 31, 2003. The employer actually reduced benefits in January 2004.
For the next several years the claimant continued to draw TPD benefits. Once those benefits expired in 2008 by operation of law, the claimant requested a recommencement of TTD benefits, indicating that he had never been properly notified of the unilateral reduction of benefits from TTD to TPD pursuant to O.C.G.A. § 34-9-104(a)(2). Finding that the employer did not notify the claimant of the anticipated reduction within 60 days of the original release on June 11, 2001, the administrative law judge reinstated the claimant’s TTD benefits and awarded them back to the date of the reduction in January 2004. The Court of Appeals found the notice provided by the employer was invalid “because it was issued more than 60 days from the time the restrictions were ‘determined.’” Accordingly, the Court of Appeals found that the reduction from TTD benefits to TPD benefits was improper.
This ruling makes it clear more than ever that employers and insurers need to follow the precise rules of O.C.G.A. § 34-9-104 and Board Rule 104. Specifically, (1) a WC-104 must be completed no later than 60 days of the authorized treating physician’s release of the claimant to work with restrictions; (2) the medical report establishing the claimant was released to light-duty work must be attached to the WC-104; (3) a copy of the WC-104 and medical report must be served upon the claimant and his attorney, if represented; and (4) once the claimant remains out of work for 52 consecutive weeks/78 aggregate weeks the employer/insurer must file a WC-2 reflecting the reduction of benefits and attach the WC-104 at that time.
If you have questions or comments, please reply to this blog 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 at david.willis@davidandrosetti.com.
On October 18, 2010, the Court of Appeals of the State of Georgia revisited the case of Imerys Kaolin v. J. W. Blackshear (A10A1216). In Blackshear, the Court of Appeals addressed O.C.G.A. § 34-9-104 which allows an employer to unilaterally convert an injured worker from temporary total disability (TTD) benefits to temporary partial disability (TPD) benefits once the authorized treating physician releases the employee to return to work with restrictions. However, the employer can only do so if certain notice requirements are met, specifically:
Within 60 days of the employees’ release to return to work with restrictions or limitations, the employer shall provide notice to the employee . . . that he or she has been released to work with limitations or restrictions . . . . Whenever an employer seeks to convert an employee from benefits for total disability to benefits for partial disability as provided in this paragraph, such employer may convert the benefits unilaterally by filing the form indicating the reason for the conversion as prescribed by rule of the Board. O.C.G.A. § 34-9-104(a)(2).
In Blackshear, the claimant injured his hands at work in 2001. He began receiving TTD benefits and was released to return to work with restrictions in June 2001. Based on this release, the employer/insurer informed the claimant in January 2002 that his TTD benefits would be reduced to the TPD level effective June 4, 2002. However, this did not occur. Instead, the employer/insurer obtained a new release from a referral physician on December 31, 2002, based on an evaluation performed in August 2002. The employer/insurer notified the claimant on January 14, 2003 that his benefits would be reduced from TTD to TPD on December 31, 2003. The employer actually reduced benefits in January 2004.
For the next several years the claimant continued to draw TPD benefits. Once those benefits expired in 2008 by operation of law, the claimant requested a recommencement of TTD benefits, indicating that he had never been properly notified of the unilateral reduction of benefits from TTD to TPD pursuant to O.C.G.A. § 34-9-104(a)(2). Finding that the employer did not notify the claimant of the anticipated reduction within 60 days of the original release on June 11, 2001, the administrative law judge reinstated the claimant’s TTD benefits and awarded them back to the date of the reduction in January 2004. The Court of Appeals found the notice provided by the employer was invalid “because it was issued more than 60 days from the time the restrictions were ‘determined.’” Accordingly, the Court of Appeals found that the reduction from TTD benefits to TPD benefits was improper.
This ruling makes it clear more than ever that employers and insurers need to follow the precise rules of O.C.G.A. § 34-9-104 and Board Rule 104. Specifically, (1) a WC-104 must be completed no later than 60 days of the authorized treating physician’s release of the claimant to work with restrictions; (2) the medical report establishing the claimant was released to light-duty work must be attached to the WC-104; (3) a copy of the WC-104 and medical report must be served upon the claimant and his attorney, if represented; and (4) once the claimant remains out of work for 52 consecutive weeks/78 aggregate weeks the employer/insurer must file a WC-2 reflecting the reduction of benefits and attach the WC-104 at that time.
If you have questions or comments, please reply to this blog 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 at david.willis@davidandrosetti.com.
October 28, 2010
Communications With Doctors
by Mike Rosetti
Another topic gaining momentum is whether defense attorneys are permitted to meet with treating doctors. Questions concerning privacy and legal ethics are raised by such meetings.
The claimant’s bar has relied on the Moreland v. Austin case, decided by the Supreme Court of Georgia, to argue that “ex parte” communications are not permissible in workers’ compensation cases. The Moreland case, however, is not binding since it involves a medical malpractice claim, which is subject to the provisions of HIPAA. Since workers’ compensation is not subject to HIPAA rules associated with the release of information, the case has limited application.
This is an issue which has grown momentum in recent years. The ability of the employer/insurer’s legal representative to meet with treating physicians and provide all information relevant to a claim, instead of their reliance on limited information from a claimant, has allowed parties to successfully move cases forward. The claimant’s bar’s stated concern is that allowing defense attorneys to speak with doctors skews the resulting medical opinion(s). The reality, however, is that most employers/insurers want to ensure that when doctors issue opinions, it is based on all the facts. Simply put, the best way to confirm that all the facts are known is to meet with or speak to the doctor.
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 at david.willis@davidandrosetti.com.
Another topic gaining momentum is whether defense attorneys are permitted to meet with treating doctors. Questions concerning privacy and legal ethics are raised by such meetings.
The claimant’s bar has relied on the Moreland v. Austin case, decided by the Supreme Court of Georgia, to argue that “ex parte” communications are not permissible in workers’ compensation cases. The Moreland case, however, is not binding since it involves a medical malpractice claim, which is subject to the provisions of HIPAA. Since workers’ compensation is not subject to HIPAA rules associated with the release of information, the case has limited application.
This is an issue which has grown momentum in recent years. The ability of the employer/insurer’s legal representative to meet with treating physicians and provide all information relevant to a claim, instead of their reliance on limited information from a claimant, has allowed parties to successfully move cases forward. The claimant’s bar’s stated concern is that allowing defense attorneys to speak with doctors skews the resulting medical opinion(s). The reality, however, is that most employers/insurers want to ensure that when doctors issue opinions, it is based on all the facts. Simply put, the best way to confirm that all the facts are known is to meet with or speak to the doctor.
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 at david.willis@davidandrosetti.com.
The future of the WC-205 - - the continuing debate
by Mike Rosetti
Although it was only an official topic for one session, several of the panels addressed the issues associated with this controversial provision. Board form WC-205 allows an authorized treating physician to request pre-authorization for a proposed test or treatment. The form must be signed by the authorized treating physician and sent to the adjuster, who then has five business days to authorize or deny the requested treatment. According to Board Rule 205, the failure to respond to the form within five days renders the requested treatment automatically approved. The recent Court of Appeals of Georgia decision in Mulligan raised doubts about a claimant’s ability to enforce this provision. As noted in our previous newsletter, the Court in Mulligan found the WC-205 could not be used to shift the burden of proof for appropriate medical treatment to the employer/insurer.
A primary concern by claimant’s attorneys is that reasonable and necessary medical treatment is delayed without the WC-205. From the employer/insurer perspective, allowing five business days is not a fair opportunity to evaluate a proposed treatment to determine whether it meets the requirements of O.C.G.A. 34-9-201.
The consensus was that the WC-205 can still be used in certain circumstances, primarily for treatment to compensable body parts being recommended by the authorized treating physician. As such, it remains imperative to respond to a WC-205 request for pre-authorization within five business days. If the proposed treatment is denied, a WC-3 must be filed within 21 days of the date the WC-205 was submitted.
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 at david.willis@davidandrosetti.com.
Although it was only an official topic for one session, several of the panels addressed the issues associated with this controversial provision. Board form WC-205 allows an authorized treating physician to request pre-authorization for a proposed test or treatment. The form must be signed by the authorized treating physician and sent to the adjuster, who then has five business days to authorize or deny the requested treatment. According to Board Rule 205, the failure to respond to the form within five days renders the requested treatment automatically approved. The recent Court of Appeals of Georgia decision in Mulligan raised doubts about a claimant’s ability to enforce this provision. As noted in our previous newsletter, the Court in Mulligan found the WC-205 could not be used to shift the burden of proof for appropriate medical treatment to the employer/insurer.
A primary concern by claimant’s attorneys is that reasonable and necessary medical treatment is delayed without the WC-205. From the employer/insurer perspective, allowing five business days is not a fair opportunity to evaluate a proposed treatment to determine whether it meets the requirements of O.C.G.A. 34-9-201.
The consensus was that the WC-205 can still be used in certain circumstances, primarily for treatment to compensable body parts being recommended by the authorized treating physician. As such, it remains imperative to respond to a WC-205 request for pre-authorization within five business days. If the proposed treatment is denied, a WC-3 must be filed within 21 days of the date the WC-205 was submitted.
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 at david.willis@davidandrosetti.com.
Honorable Richard S. (Rick) Thompson’s State of the Board address
by Mike Rosetti
Chairman Thompson delivered a “State of the Board” address to the attendees, addressing some legislative changes as well as important trends.
A. Appellate Division Award to be Published
The most significant legislative update was the requirement that the Board publish Appellate Division awards. While these awards are not necessarily binding precedent, they are persuasive authority and give parties an opportunity to see how the Board is addressing recurring issues.
B.Settlements approved with greater speed; fewer settlements generally
Chairman Thompson referenced the statistics kept by the Board documenting the increased speed with which settlements are approved. In calendar years 2008 and 2009, there were no months in which 90% of settlement were approved within 10 days. By contrast, in every month of this year, at least 90% of settlements were approved within 10 days. Of note, the statistics demonstrated there are fewer settlements being submitted to the Board. In 2009, there were an average of 1,335 settlement submitted to the Board for approval per month. For the first seven months of 2010, there was an average of 1,115 settlement submitted.
C. ALJ Awards issued with greater speed
The speed with which ALJ awards are issued has increased dramatically. In October 2009, only 44% of awards were issued within 60 days. By contrast, in June 2010 (the last month statistics were available), 97% of awards were issued within 60 days of the hearing.
***
The theme of Judge Thompson’s report was that the Board is operating with greater efficiency, and the statistics bear this out. This is beneficial for all parties as quicker resolutions usually lead to decreased costs.
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 at david.willis@davidandrosetti.com.
Chairman Thompson delivered a “State of the Board” address to the attendees, addressing some legislative changes as well as important trends.
A. Appellate Division Award to be Published
The most significant legislative update was the requirement that the Board publish Appellate Division awards. While these awards are not necessarily binding precedent, they are persuasive authority and give parties an opportunity to see how the Board is addressing recurring issues.
B.Settlements approved with greater speed; fewer settlements generally
Chairman Thompson referenced the statistics kept by the Board documenting the increased speed with which settlements are approved. In calendar years 2008 and 2009, there were no months in which 90% of settlement were approved within 10 days. By contrast, in every month of this year, at least 90% of settlements were approved within 10 days. Of note, the statistics demonstrated there are fewer settlements being submitted to the Board. In 2009, there were an average of 1,335 settlement submitted to the Board for approval per month. For the first seven months of 2010, there was an average of 1,115 settlement submitted.
C. ALJ Awards issued with greater speed
The speed with which ALJ awards are issued has increased dramatically. In October 2009, only 44% of awards were issued within 60 days. By contrast, in June 2010 (the last month statistics were available), 97% of awards were issued within 60 days of the hearing.
***
The theme of Judge Thompson’s report was that the Board is operating with greater efficiency, and the statistics bear this out. This is beneficial for all parties as quicker resolutions usually lead to decreased costs.
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 at david.willis@davidandrosetti.com.
Georgia Workers' Compensation Annual Seminar
The annual Georgia workers’ compensation seminar sponsored by the Institute of Continuing Legal Education concluded on October 2, 2010. Nearly 500 lawyers practicing Georgia workers’ compensation law attended the conference. Mike Rosetti co-chaired the event and Ken David presented on “Medicare Madness.” There were several items of note from the conference.
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 at david.willis@davidandrosetti.com.
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 at david.willis@davidandrosetti.com.
September 21, 2010
Don't Forget to File Your 4's!
by Chuck Dubose, Esq.
The Georgia Workers’ Compensation Act requires that a number of forms be filed during the course of a claim. One such form is the WC-4 Case Progress Report. It is very important to file a WC-4 at the appropriate time. Board Rule 61 requires that a WC-4 be filed in the following situations:
•in both controverted and accepted claims within 180 days of the first date of disability;
•within 30 days from last payment for closure;
•upon request by the State Board;
•every 12 months from the date of the last filing of a form WC-4 on all open cases;
•to reopen a case;
•within 30 days of final payment made pursuant to an approved stipulated settlement, and
•within 90 days of receipt of an open case by the new third party administrator.
The State Board has become more stringent in issuing penalties upon insurance carriers and self-insured employers who are delinquent in filing WC-4 Case Progress Reports by imposing a $500 penalty per claim. The lesson? Don’t Forget To File Your 4’s!
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 at david.willis@davidandrosetti.com.
The Georgia Workers’ Compensation Act requires that a number of forms be filed during the course of a claim. One such form is the WC-4 Case Progress Report. It is very important to file a WC-4 at the appropriate time. Board Rule 61 requires that a WC-4 be filed in the following situations:
•in both controverted and accepted claims within 180 days of the first date of disability;
•within 30 days from last payment for closure;
•upon request by the State Board;
•every 12 months from the date of the last filing of a form WC-4 on all open cases;
•to reopen a case;
•within 30 days of final payment made pursuant to an approved stipulated settlement, and
•within 90 days of receipt of an open case by the new third party administrator.
The State Board has become more stringent in issuing penalties upon insurance carriers and self-insured employers who are delinquent in filing WC-4 Case Progress Reports by imposing a $500 penalty per claim. The lesson? Don’t Forget To File Your 4’s!
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 at david.willis@davidandrosetti.com.
Are Disability Claims Increasing as the Economy Stabilizes?
by Chuck Dubose, Esq.
In a September 6, 2010 Business Insurance article the author suggests that the number of workers’ compensation disability claims may increase as employees who previously refrained from filing claims due to fear of losing their jobs in the recession begin to feel more security in their job as the economy begins to stabilize. The author contends that as more employees believe their jobs are better protected they are more likely to pursue disability claims. Alternatively, some feel the number of claims is simply returning to a normal level.
In its August 19, 2010 preliminary release of Census of Fatal Occupational Injuries (CFOI) results, the Bureau of Labor Statistics (BLS) reported the number of workplace fatalities in 2009 was the lowest it has been since the CFOI program began in 1992. According to the BLS 4,340 workplace fatalities were recorded in 2009, down from the 5,218 workplace fatalities in 2008. The BLS concluded economic factors greatly contributed to this decrease, since total hours worked in 2009 decreased by 6 percent in 2009, compared to a 1 percent decline in 2008. The agency also noted some industries which have typically accounted for a larger share of fatal injuries (such as construction) experienced an even larger decline in employment and/or total hours worked.
Even if the economy shows signs of stabilizing it may be too soon to determine how much of an effect this will have on the number of disability claims filed. How do you feel the economy is affecting the number of workers’ compensation claims? Post your response and let us know.
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 at david.willis@davidandrosetti.com.
In a September 6, 2010 Business Insurance article the author suggests that the number of workers’ compensation disability claims may increase as employees who previously refrained from filing claims due to fear of losing their jobs in the recession begin to feel more security in their job as the economy begins to stabilize. The author contends that as more employees believe their jobs are better protected they are more likely to pursue disability claims. Alternatively, some feel the number of claims is simply returning to a normal level.
In its August 19, 2010 preliminary release of Census of Fatal Occupational Injuries (CFOI) results, the Bureau of Labor Statistics (BLS) reported the number of workplace fatalities in 2009 was the lowest it has been since the CFOI program began in 1992. According to the BLS 4,340 workplace fatalities were recorded in 2009, down from the 5,218 workplace fatalities in 2008. The BLS concluded economic factors greatly contributed to this decrease, since total hours worked in 2009 decreased by 6 percent in 2009, compared to a 1 percent decline in 2008. The agency also noted some industries which have typically accounted for a larger share of fatal injuries (such as construction) experienced an even larger decline in employment and/or total hours worked.
Even if the economy shows signs of stabilizing it may be too soon to determine how much of an effect this will have on the number of disability claims filed. How do you feel the economy is affecting the number of workers’ compensation claims? Post your response and let us know.
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 at david.willis@davidandrosetti.com.
Can I still Speak With the Doctor?
by Chuck Dubose, Esq.
During the course of a workers' compensation claim communication with the claimant's treating physician is crucial in order to obtain essential information concerning the claimant's current condition, work status, treatment recommendations, and any opinions concerning permanent impairment. Such communication is important for the employer, insurer and defense counsel in order to effectively manage the claim. Lately, however, there has been more resistance with regard to such communications.
The Georgia Supreme Court recently addressed the issue of communications with medical providers in the case of Baker v. Wellstar Health Systems, Inc., S10A0994 (June 1, 2010). This case is apparently being circulated by claimants’ attorneys who assert that communications between defense attorneys and treating physicians (so-called ex parte communications) should be prohibited.
Baker is not a workers’ compensation case, but stems from a medical malpractice action. It highlights the privacy issues involved with respect to a plaintiff’s medical information and it specifically addresses communications between defense counsel and a plaintiff’s health care providers. In Baker, the Georgia Supreme Court held that communications between defense counsel and treating physicians may be conducted as long as the parties comply with the requirements of HIPAA (Health Insurance Portability and Accountability Act of 1996). HIPAA contains provisions which include obtaining consent of the patient and also include a protective order for otherwise protected health information. However, HIPAA does not apply to workers’ compensation claims. It states that providers "may disclose protected health information as authorized by and to the extent necessary to comply with laws relating to workers’ compensation or other similar programs, established by law, that provide benefits for work-related injuries or illness without regard to fault.
O.C.G.A. § 34-9-207 of the Georgia Workers' Compensation Act provides that once an employee files a workers’ compensation claim or receives income medical benefits, "that employee shall be deemed to have waived any privilege or confidentiality concerning any communications related to the claim or history or treatment of injury arising from the incident the employee has had with any physician, including, but not limited to, communications with psychiatrists or psychologists." Consequently, Baker should not be read to have any impact on the ability to communicate with treating physicians in workers’ compensation claims. However, this is a developing issue. Other states have addressed this differently and have imposed more restrictions on the ability to communicate with treating physicians. We will monitor the situation and provide updated information as it becomes available.
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 at david.willis@davidandrosetti.com.
During the course of a workers' compensation claim communication with the claimant's treating physician is crucial in order to obtain essential information concerning the claimant's current condition, work status, treatment recommendations, and any opinions concerning permanent impairment. Such communication is important for the employer, insurer and defense counsel in order to effectively manage the claim. Lately, however, there has been more resistance with regard to such communications.
The Georgia Supreme Court recently addressed the issue of communications with medical providers in the case of Baker v. Wellstar Health Systems, Inc., S10A0994 (June 1, 2010). This case is apparently being circulated by claimants’ attorneys who assert that communications between defense attorneys and treating physicians (so-called ex parte communications) should be prohibited.
Baker is not a workers’ compensation case, but stems from a medical malpractice action. It highlights the privacy issues involved with respect to a plaintiff’s medical information and it specifically addresses communications between defense counsel and a plaintiff’s health care providers. In Baker, the Georgia Supreme Court held that communications between defense counsel and treating physicians may be conducted as long as the parties comply with the requirements of HIPAA (Health Insurance Portability and Accountability Act of 1996). HIPAA contains provisions which include obtaining consent of the patient and also include a protective order for otherwise protected health information. However, HIPAA does not apply to workers’ compensation claims. It states that providers "may disclose protected health information as authorized by and to the extent necessary to comply with laws relating to workers’ compensation or other similar programs, established by law, that provide benefits for work-related injuries or illness without regard to fault.
O.C.G.A. § 34-9-207 of the Georgia Workers' Compensation Act provides that once an employee files a workers’ compensation claim or receives income medical benefits, "that employee shall be deemed to have waived any privilege or confidentiality concerning any communications related to the claim or history or treatment of injury arising from the incident the employee has had with any physician, including, but not limited to, communications with psychiatrists or psychologists." Consequently, Baker should not be read to have any impact on the ability to communicate with treating physicians in workers’ compensation claims. However, this is a developing issue. Other states have addressed this differently and have imposed more restrictions on the ability to communicate with treating physicians. We will monitor the situation and provide updated information as it becomes available.
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 at david.willis@davidandrosetti.com.
September 16, 2010
Mike Rosetti to Speak at National Business Institute Seminar
Mike Rosetti of David and Rosetti, LLP will speak at the National Business Institute Seminar titled "Workers' Compensation Hearings: Techniques and Strategies for Success". The Seminar is December 14, 2010 in Atlanta Georgia.
Register at www.nbi-sems.com
Mike Rosetti is an Attorney for David and Rosetti, LLP, a workers' compensation defense firm located in Atlanta, Georgia. www.davidandrosetti.com
August 11, 2010
Workers are retiring later. Does this mean more work injuries?
By: Christina Bevill, Esq.
Workers are working longer and retiring later. Does this mean more injuries? The Wall Street Journal recently reported that at least ten states were increasing the number of years that state employees had to work before becoming entitled to their full pension. A number of older workers have found that they must go back to work or work longer than they originally planned because their retirement is not worth what it once was before the economy took a turn for the worse.
The mere fact that an employee is working longer does not necessarily mean that he is more likely to have a work accident, but it does mean employers should be cognizant of the conditions that can develop with an aging work force. In Georgia, as in many states, the fact that an employee has non-work related condition(s) does not necessarily preclude those conditions from becoming a work-related problem if such conditions are exacerbated or aggravated at work. Thus, workplace safety should be even more of a focus as the employee workforce continues to age. What do you think?
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 are working longer and retiring later. Does this mean more injuries? The Wall Street Journal recently reported that at least ten states were increasing the number of years that state employees had to work before becoming entitled to their full pension. A number of older workers have found that they must go back to work or work longer than they originally planned because their retirement is not worth what it once was before the economy took a turn for the worse.
The mere fact that an employee is working longer does not necessarily mean that he is more likely to have a work accident, but it does mean employers should be cognizant of the conditions that can develop with an aging work force. In Georgia, as in many states, the fact that an employee has non-work related condition(s) does not necessarily preclude those conditions from becoming a work-related problem if such conditions are exacerbated or aggravated at work. Thus, workplace safety should be even more of a focus as the employee workforce continues to age. What do you think?
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.
Permanent Partial Disability (PPD) benefits: when are they due?
By: Christina Bevill, Esq.
From time to time a situation arises where an employee is injured on the job, returns to work, is no longer receiving TTD or TPD benefits but continues to receive medical treatment. The question arises when permanent partial disability benefits are due.
Many believe reaching maximum medical improvement determines when permanent partial disability benefits are due. In Georgia, however, reaching maximum medical improvement is not a condition precedent to those benefits. This is why sometimes claimant’s attorneys will request an estimated impairment rating and demand payment of the rating even if the claimant continues to treat. Of course, just because the employee demands payment of PPD benefits does not mean payment is due. It is the employee’s burden to show that his condition is “permanent” in nature, meaning it will not improve during his lifetime. For example, a worker with an amputated finger does not have to wait until a doctor determines he has reached maximum medical improvement because the amputation is permanent. However, an employee with a back injury whose condition may improve (or worsen) over time, may not be entitled to payment of the permanent partial disability rating until after the employee has actually reached maximum medical improvement. Each case will depend on the facts. Follow-up with the authorized treating physician is always recommended.
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.
From time to time a situation arises where an employee is injured on the job, returns to work, is no longer receiving TTD or TPD benefits but continues to receive medical treatment. The question arises when permanent partial disability benefits are due.
Many believe reaching maximum medical improvement determines when permanent partial disability benefits are due. In Georgia, however, reaching maximum medical improvement is not a condition precedent to those benefits. This is why sometimes claimant’s attorneys will request an estimated impairment rating and demand payment of the rating even if the claimant continues to treat. Of course, just because the employee demands payment of PPD benefits does not mean payment is due. It is the employee’s burden to show that his condition is “permanent” in nature, meaning it will not improve during his lifetime. For example, a worker with an amputated finger does not have to wait until a doctor determines he has reached maximum medical improvement because the amputation is permanent. However, an employee with a back injury whose condition may improve (or worsen) over time, may not be entitled to payment of the permanent partial disability rating until after the employee has actually reached maximum medical improvement. Each case will depend on the facts. Follow-up with the authorized treating physician is always recommended.
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.
Has the threat of the WC-205 lost its bite? Selective HR Solutions, Inc. v. Mulligan
by Christina Bevill, Esq.
Does the failure of the employer/insurer to respond to a WC-205 request for advanced authorization of medical treatment or testing, within five business days, trigger a right to payment of that medical care - regardless of whether the underlying injury is work-related? The Court of Appeals has determined it does not.
Ms. Mulligan injured her back at work in July of 2006. She recovered enough to work. In May of 2007 she re-injured her back at home. She treated with a few different doctors and even submitted payment for her medical bills through her private insurance. On October 26, 2007, a treating doctor concluded lumbar surgery was needed and sent a WC-205 to the workers’ compensation insurance carrier requesting authorization to proceed with surgery. On December 11, 2007, the insurance company faxed the form back refusing to authorize the surgery. The surgeon operated three days later. The Board found the employee did not show a change in condition for the worse or that surgery was compensable. The Superior Court affirmed this decision but reversed the award denying medical treatment. The Superior Court found that because the insurance company failed to respond within five business days, there was an obligation to pay for the medical treatment.
The Court of Appeals disagreed and reversed to the extent that Board Rule 205 essentially alters the burden of proof as to compensability in favor of a claimant. The State Board of Workers’ Compensation is limited in its ability to make rules in that the rules must be consistent with the Workers’ Compensation Act and they cannot enlarge, reduce or otherwise affect the substantive rights of the parties. Because the effect of the rule shifts the burden of proof from the claimant to the employer on the issue of compensability, Board Rule 205 is invalid to this extent. However, where compensability is not an issue, failure to timely respond by the employer/insurer may result in civil penalties and attorneys fees. In short, Board Rule 205 becomes ineffective only when there is a dispute as to whether or not an underlying injury is work-related. However, for compensable injuries a Board form WC-205 remains a viable document and should be addressed immediately upon receipt.
If you have questions or comments, 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.
Does the failure of the employer/insurer to respond to a WC-205 request for advanced authorization of medical treatment or testing, within five business days, trigger a right to payment of that medical care - regardless of whether the underlying injury is work-related? The Court of Appeals has determined it does not.
Ms. Mulligan injured her back at work in July of 2006. She recovered enough to work. In May of 2007 she re-injured her back at home. She treated with a few different doctors and even submitted payment for her medical bills through her private insurance. On October 26, 2007, a treating doctor concluded lumbar surgery was needed and sent a WC-205 to the workers’ compensation insurance carrier requesting authorization to proceed with surgery. On December 11, 2007, the insurance company faxed the form back refusing to authorize the surgery. The surgeon operated three days later. The Board found the employee did not show a change in condition for the worse or that surgery was compensable. The Superior Court affirmed this decision but reversed the award denying medical treatment. The Superior Court found that because the insurance company failed to respond within five business days, there was an obligation to pay for the medical treatment.
The Court of Appeals disagreed and reversed to the extent that Board Rule 205 essentially alters the burden of proof as to compensability in favor of a claimant. The State Board of Workers’ Compensation is limited in its ability to make rules in that the rules must be consistent with the Workers’ Compensation Act and they cannot enlarge, reduce or otherwise affect the substantive rights of the parties. Because the effect of the rule shifts the burden of proof from the claimant to the employer on the issue of compensability, Board Rule 205 is invalid to this extent. However, where compensability is not an issue, failure to timely respond by the employer/insurer may result in civil penalties and attorneys fees. In short, Board Rule 205 becomes ineffective only when there is a dispute as to whether or not an underlying injury is work-related. However, for compensable injuries a Board form WC-205 remains a viable document and should be addressed immediately upon receipt.
If you have questions or comments, 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.
July 16, 2010
"Pill Mills": The Prescription Drug Industry in Georgia
by David W. Willis, Esq.
The prescription drug industry in Georgia has become an increasingly hot topic and bears close monitoring by the workers' compensation industry. As has been detailed in recent weeks by the Atlanta Journal-Constitution and other media outlets, a proposed prescription drug monitoring program in Georgia stalled this year in the Georgia legislature which would have discouraged "pill mills" by tracking the dispensation of prescriptions through an electronic database. The database would identify patients who are doctor-shopping and physicians prone to writing large numbers of prescriptions. As reported by the Atlanta Journal-Constitution, as of January 2010, 34 other states had prescription drug monitoring programs in place. Similar legislation promises to be in the works again next year, but for now local governments must be pro-active with monitoring the prescription drug industry.
Employers and insurers should carefully monitor this situation as it pertains to their workers' compensation claims. Addiction consequences of prescription medications (especially narcotics) have been widely discussed but continue to deserve attention. However, pain clinics and pain management doctors who seem to prescribe an unending cocktail of drugs should also be viewed with a critical eye. Are the medications truly helping to reach the goals of giving relief, effecting a cure, or restoring the employee to suitable employment? Are the medications "reasonably required"? Employers and insurers should keep these questions in mind at the outset of any claim, but particularly those in which ongoing medical treatment is required.
The prescription drug industry in Georgia has become an increasingly hot topic and bears close monitoring by the workers' compensation industry. As has been detailed in recent weeks by the Atlanta Journal-Constitution and other media outlets, a proposed prescription drug monitoring program in Georgia stalled this year in the Georgia legislature which would have discouraged "pill mills" by tracking the dispensation of prescriptions through an electronic database. The database would identify patients who are doctor-shopping and physicians prone to writing large numbers of prescriptions. As reported by the Atlanta Journal-Constitution, as of January 2010, 34 other states had prescription drug monitoring programs in place. Similar legislation promises to be in the works again next year, but for now local governments must be pro-active with monitoring the prescription drug industry.
Employers and insurers should carefully monitor this situation as it pertains to their workers' compensation claims. Addiction consequences of prescription medications (especially narcotics) have been widely discussed but continue to deserve attention. However, pain clinics and pain management doctors who seem to prescribe an unending cocktail of drugs should also be viewed with a critical eye. Are the medications truly helping to reach the goals of giving relief, effecting a cure, or restoring the employee to suitable employment? Are the medications "reasonably required"? Employers and insurers should keep these questions in mind at the outset of any claim, but particularly those in which ongoing medical treatment is required.
Consequences of an Improper Suspension of Benefits
by David W. Willis, Esq.
The Georgia Court of Appeals recently addressed the notice issue involved with an employee's suspension of benefits. In Bolden v. S&B Engineers & Constructors, Ltd. (decided June 22, 2010) the Court examined the case of an employee who sustained a compensable burn injury to her left hand in June 2006. In November 2006 she began receiving TTD benefits. On March 26, 2007 the treating physician released the employee to light duty work. Unbeknownst to the employee, on April 9, 2007 the doctor indicated she had no more restrictions as related to the original accident. The insurer terminated the employee's benefits on April 24, 2007 without notice or the filing of a WC-2. A short time later the employee requested a hearing seeking a reinstatement of TTD benefits through May 9, 2008, the date she began working for a new employer.
The Court reviewed and cited to a number of previous decisions addressing the notice provisions involved with suspension of benefits. They first examined O.C.G.A.§ 34-9-221(i) and Board Rule 221 which set forth the requirements of an employer/insurer providing 10 days advance notice before suspending benefits based upon a full duty work release. Second, the Court revisited its decisions on several earlier cases dealing with suspension of benefits. The court noted that an improper WC-2 suspension of benefits in some instances may be only a technical violation. See, Sadie Mays Memorial Nursing Home v. Freeman, 295 S.E.2d 340 (1982)(holding an employer which provided the incorrect reason for suspension of benefits on the WC-2 nevertheless placed the employee on notice of a termination of benefits due to a change in condition); Reliance Electric. Co. v. Brightwell 643 S.E.2d 742 (2007)(holding that an employer who provided only six days notice before suspension of benefits needed only to pay the employee the remaining four days of benefits, plus 15% late penalties). However, in other instances the violation is not merely "technical."
Specifically, the Court analogized the case at hand to Russell Morgan v. Velez-Ochoa, 556 S.E.2d 827 (2001). In Russell Morgan, the employer filed a defective WC-2 suspension of benefits. The WC-2 in that case (1) gave the wrong reason for termination, (2) failed to include the required medical reports, (3) failed to explain how to challenge the decision, and (4) failed to give ten days notice before ending its payment of income benefits. The Court affirmed the State Board decision in holding the above defects were not mere technical violations but significant failures by the employer/insurer to afford the employee due process. Id. at 552. Similarly, in this case the Court found that the violation was not merely "technical" as the employer/insurer never filed a WC-2 at all and never explained to the employee why her TTD benefits were being terminated. The Court held that the employee was entitled to a reinstatement of benefits from April 24, 2007 (date of termination) until May 9, 2008 (date the employee returned to work) plus a 15% late payment penalty.
Moral of the story: best practice is to timely and correctly file a WC-2 , but at a minimum notify an employee in writing when benefits are being suspended!
The Georgia Court of Appeals recently addressed the notice issue involved with an employee's suspension of benefits. In Bolden v. S&B Engineers & Constructors, Ltd. (decided June 22, 2010) the Court examined the case of an employee who sustained a compensable burn injury to her left hand in June 2006. In November 2006 she began receiving TTD benefits. On March 26, 2007 the treating physician released the employee to light duty work. Unbeknownst to the employee, on April 9, 2007 the doctor indicated she had no more restrictions as related to the original accident. The insurer terminated the employee's benefits on April 24, 2007 without notice or the filing of a WC-2. A short time later the employee requested a hearing seeking a reinstatement of TTD benefits through May 9, 2008, the date she began working for a new employer.
The Court reviewed and cited to a number of previous decisions addressing the notice provisions involved with suspension of benefits. They first examined O.C.G.A.§ 34-9-221(i) and Board Rule 221 which set forth the requirements of an employer/insurer providing 10 days advance notice before suspending benefits based upon a full duty work release. Second, the Court revisited its decisions on several earlier cases dealing with suspension of benefits. The court noted that an improper WC-2 suspension of benefits in some instances may be only a technical violation. See, Sadie Mays Memorial Nursing Home v. Freeman, 295 S.E.2d 340 (1982)(holding an employer which provided the incorrect reason for suspension of benefits on the WC-2 nevertheless placed the employee on notice of a termination of benefits due to a change in condition); Reliance Electric. Co. v. Brightwell 643 S.E.2d 742 (2007)(holding that an employer who provided only six days notice before suspension of benefits needed only to pay the employee the remaining four days of benefits, plus 15% late penalties). However, in other instances the violation is not merely "technical."
Specifically, the Court analogized the case at hand to Russell Morgan v. Velez-Ochoa, 556 S.E.2d 827 (2001). In Russell Morgan, the employer filed a defective WC-2 suspension of benefits. The WC-2 in that case (1) gave the wrong reason for termination, (2) failed to include the required medical reports, (3) failed to explain how to challenge the decision, and (4) failed to give ten days notice before ending its payment of income benefits. The Court affirmed the State Board decision in holding the above defects were not mere technical violations but significant failures by the employer/insurer to afford the employee due process. Id. at 552. Similarly, in this case the Court found that the violation was not merely "technical" as the employer/insurer never filed a WC-2 at all and never explained to the employee why her TTD benefits were being terminated. The Court held that the employee was entitled to a reinstatement of benefits from April 24, 2007 (date of termination) until May 9, 2008 (date the employee returned to work) plus a 15% late payment penalty.
Moral of the story: best practice is to timely and correctly file a WC-2 , but at a minimum notify an employee in writing when benefits are being suspended!
Texting While Driving: Willful Misconduct?
by David W. Willis, Esq.
Effective July 1, 2010 Georgia Governor Sonny Perdue signed two new "distracted driving" bills into law, Senate Bill 360 and House Bill 23. House Bill 23 prohibits persons under 18 years of age from any use of telecommunication devices while operating a motor vehicle. Senate Bill 360 (the Caleb Sorohan Act) impacts the general populace of Georgia and states: "No person shall operate a motor vehicle on any public road or highway of this state while using a wireless telecommunications device to write, send, or read any text based communication, including but not limited to a text message, instant message, electronic mail, or Internet data." Thus, drivers in Georgia are not prohibited from using mobile phones for talking. However, drivers are barred from writing, reading, texting or otherwise sending any text based communication (i.e. text message, email, internet data) while operating a motor vehicle. The fine for offenders is $150.00 and one point on their driver license.
The new Georgia legislation brings up an interesting question for employees injured while in the course of travel for their employer. As in most states, a Georgia employee injured while driving may have a viable workers' compensation claim,so long as the operation of a motor vehicle is part of their job. However, O.C.G.A.§ 34-9-17(a) can provide a defense to employers and insurers when the injury is due to an employee's "willful misconduct, including … the willful failure or refusal to use a safety appliance or perform a duty required by statute." Could a violation of the new Georgia law provide a defense under this statute.
Historically, Georgia courts have taken a narrow approach when asked to disqualify someone from workers' compensation benefits based upon willful misconduct. Even if the reason for an accidental injury is an employee's negligence or gross negligence this is often not sufficient as a defense. See, Travelers Ins. Co. v. Gaither, 251 S.E.2d 66 (1978). Instead, the courts have usually found that the violation must be a statutory one of a criminal or quasi-criminal nature. When it comes to traffic violations the State Board of Workers' Compensation and appellate courts have given varying decisions, finding that driving the wrong way up a one-way ramp and speeding qualify as acts of "willful misconduct" while improperly lane passing around another vehicle does not.
Whether an employee who is injured while texting (or sending emails, reading emails, instant messaging) and driving has a compensable claim will depend on the particular facts involved. However, given the wide publicity and coverage that accompanied Georgia's newest legislation an employee may be hard-pressed to say their violation of this law was not "willful misconduct." In the weeks and months ahead employers and insurers should be sure to examine this issue closely.
Effective July 1, 2010 Georgia Governor Sonny Perdue signed two new "distracted driving" bills into law, Senate Bill 360 and House Bill 23. House Bill 23 prohibits persons under 18 years of age from any use of telecommunication devices while operating a motor vehicle. Senate Bill 360 (the Caleb Sorohan Act) impacts the general populace of Georgia and states: "No person shall operate a motor vehicle on any public road or highway of this state while using a wireless telecommunications device to write, send, or read any text based communication, including but not limited to a text message, instant message, electronic mail, or Internet data." Thus, drivers in Georgia are not prohibited from using mobile phones for talking. However, drivers are barred from writing, reading, texting or otherwise sending any text based communication (i.e. text message, email, internet data) while operating a motor vehicle. The fine for offenders is $150.00 and one point on their driver license.
The new Georgia legislation brings up an interesting question for employees injured while in the course of travel for their employer. As in most states, a Georgia employee injured while driving may have a viable workers' compensation claim,so long as the operation of a motor vehicle is part of their job. However, O.C.G.A.§ 34-9-17(a) can provide a defense to employers and insurers when the injury is due to an employee's "willful misconduct, including … the willful failure or refusal to use a safety appliance or perform a duty required by statute." Could a violation of the new Georgia law provide a defense under this statute.
Historically, Georgia courts have taken a narrow approach when asked to disqualify someone from workers' compensation benefits based upon willful misconduct. Even if the reason for an accidental injury is an employee's negligence or gross negligence this is often not sufficient as a defense. See, Travelers Ins. Co. v. Gaither, 251 S.E.2d 66 (1978). Instead, the courts have usually found that the violation must be a statutory one of a criminal or quasi-criminal nature. When it comes to traffic violations the State Board of Workers' Compensation and appellate courts have given varying decisions, finding that driving the wrong way up a one-way ramp and speeding qualify as acts of "willful misconduct" while improperly lane passing around another vehicle does not.
Whether an employee who is injured while texting (or sending emails, reading emails, instant messaging) and driving has a compensable claim will depend on the particular facts involved. However, given the wide publicity and coverage that accompanied Georgia's newest legislation an employee may be hard-pressed to say their violation of this law was not "willful misconduct." In the weeks and months ahead employers and insurers should be sure to examine this issue closely.
June 23, 2010
RECENT MEDICARE DEVELOPMENTS: CONDITIONAL PAYMENTS AND MSAs
By Benjamin I. Jordan, Esq.
1) May 14, 2010 CMS Policy Update
On May 14, 2010 CMS issued a policy to clarify their position regarding off-label and unlabeled uses of prescriptions drugs in MSAs. CMS specifically stated that for claims which settle before June 1, 2010, if the MSA includes the cost of medications prescribed for off-label uses, the claimant may use those funds (from the MSA) to pay for those medications. However, for claims which settle on June 1, 2010 or thereafter which include (in the MSA) medications prescribed for off-label uses, CMS will consider re-pricing the MSA drug costs (eliminating the cost of drugs prescribed for off-label uses). Once the MSA is re-priced, claimants may not use their MSA funds to pay for medications prescribed for off-label uses. Additionally, for claims which settle on or after June 1, 2010 and in which the MSA does not include medications prescribed for off-label uses, claimants are prohibited from using MSA funds to pay for off-label uses.
The practical effect of this change may be that MSAs decrease. In workers' compensation claims, medications are often prescribed for off-label uses (e.g. uses which have not been approved by the FDA). The new CMS policy may have the effect of eliminating several medications frequently seen in MSAs (such as Oxycontin, Actiq, Lidoderm, etc.) which often cause the MSA to be inordinately expensive. Practitioners are hopeful this policy revision will have a positive impact on the ability of claimants and employers/insurers to settle workers’ compensation claims.
2)
On December 1, 2009 the
In response to this lawsuit, the defendants asserted the suit is barred by the statute of limitations. In reply, CMS recently filed a brief arguing (among other things), there is no statute of limitations applicable to CMS recovery actions. While this is merely an argument advanced by CMS in the context of the lawsuit, the prospect of having no limitations as to when CMS can bring a recovery action raises significant concern. Parties to a settlement would have no certainty of avoiding a CMS recovery action unless the parties first obtain the conditional payment amount directly from Medicare. However, obtaining this information can take months and cause harmful delay to the settlement process.
As set forth below, there is a resolution in Congress designed to address this concern, as well as other aspects of the MSP which adversely affect litigants on both sides of workers’ compensation claims.
3) HR 4796 – A Solution?
A proposal in the U.S. House of Representatives, HR 4796 (“The Medicare Secondary Payer Enhancement Act”) is designed to bring more certainty and predictability to Medicare beneficiaries and others participating in resolving beneficiary claims. According to the bill’s proponents, HR 4796 would:
- Revise the information flow between parties and Medicare so that the amount owed to CMS can be determined, and paid, before a liability or workers’ compensation settlement;
- Create a right of appeal for conditional payments for any party who disagrees with the Medicare Secondary Payer (MSP) calculation;
- Establish a three year statute of limitations period from the date the government receives notice of settlement or other payment giving rise to the recovery of payment;
- Adopt a sensible MSP recovery threshold so that Medicare does not spend more taxpayer money pursuing a claim than the claim is actually worth;
- Remove the requirement that Medicare beneficiaries disclose sensitive personal identification numbers (Social Security and Medicare numbers);
- Protect Medicare recipients and facilitate quicker and more efficient payment of settlements to claimants.
For more information, please visit the Medicare Advocacy Recovery Coalition’s website at http://www.marccoalition.com/index.html
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 Gulf Oil Spill : Consequences for the Insurance Industry
By Benjamin I. Jordan, Esq.
On April 20, 2010, the oil drilling rig Deepwater Horizon, owned by Transocean Ltd. and leased to British Petroleum sank off the coast of
A recent projection by Moody’s Investors Service estimated the total insured losses from the oil spill at between $1.4 billion and $3.5 billion. “With several parties involved in the drilling work, dozens of class-action lawsuits filed and the ultimate extent of environmental damage unknown, the complexities associated with loss claims are significant and could take many years to be resolved,” Moody's said. “It's going to take several years to sort out the various liabilities and what resources in terms of insurance assets and other assets each player is going to contribute,” said John Nevius, a shareholder at Anderson Kill & Olick in
To read more, please go to the following links :
http://www.insurancejournal.com/news/national/2010/05/11/109710.htm#ixzz0ppmaBLdV
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.
May 12, 2010
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
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.
April 16, 2010
2010 Georgia Legislative Update
2010 Georgia Legislative Update
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?
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.
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
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
March 18, 2010
House of Representatives Passes Bill Permitting the State Board to Publish Awards
House of Representatives Passes Bill Permitting the State Board to Publish Awards
In
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.
February 22, 2010
Could Surveillance As We Know It Be Coming To A Close?
by Teesha T. McCrae, Esq.
The effect of
Attorneys and those in the insurance industry in
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.
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