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.
August 11, 2010
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.
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