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.
October 28, 2010
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
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