By: Alissa C. Atkins, Esq.
On January 25, 2011, a bill was introduced in the Georgia Senate seeking to bar receipt of workers’ compensation benefits by those not legally authorized to work in the United States. The Senate’s First Reader Summary explains that the bill will amend O.C.G.A. § 34-9-1, which relates to general provisions of workers’ compensation, "so as to provide that benefits under such chapter shall not be paid to noncitizens who are not employed legally; to provide that such payments shall not be made unless the noncitizen is present in this country legally at the time such payments are made; to provide for related matters; to repeal conflicting laws; and for other purposes."
The bill was sponsored by six senators, and introduced by Sen. Bill Heath, a Republican from Georgia’s 31st District. Please click here to read the full text of SB 7: http://www.davidandrosetti.com/newsletter/pdf/senatebill7.pdf
After the bill was read to the Senate on January 25th, it was sent to the Senate’s Insurance and Labor Committee for review and public hearings on the topic. The full Senate could vote on the bill in the next 30 to 45 days. The wording of the bill is subject to change, and therefore it is early to speculate on the potential ramifications if the bill is signed into law. Comparable bills have been introduced over the past several years in other states. The result has been the bills either languishing in committee or simply not garnering enough votes to become law. One source at the legislature suggests that the recent November 2010 elections showed increasing support across the country for conservative ideals, leading to renewed efforts at passing legislation to deal with the issue of undocumented workers. Similar bills are now also pending in New Hampshire, South Carolina, and Montana.
As with much legislation, supporters and detractors of the bill have emerged. A number of Georgia claimant attorneys object to the bill. However, many employers and insurers have also expressed concerns about the potential effect the legislation will have on the future of Georgia’s workforce. The key points raised by each side are as follows:
Supporters of S.B.7 contend:
The bill intends to enforce federal employment laws already in existence;
Immigrants will not be prevented from working as long as they obtain proper documentation authorizing their employment;
The overall cost of workers’ compensation claims is expected to decrease, and as a result, workers’ compensation premiums could decrease for employers who comply with the terms of the new law;
Undocumented workers do not have an inalienable right to employment in the United States; and
The bill will not affect employers who only employ workers who are legally authorized to work in the United States.
Opponents of S.B.7 contend:
The bill will unfairly preclude undocumented workers from obtaining employment;
Unscrupulous employers may attempt to hire undocumented workers strictly to avoid exposure for potential workers’ compensation benefits;
If employers hire undocumented workers for this reason, applicants legally entitled to work in the United States will suffer as they will be more expensive to employ;
The exclusive remedy provision of the Workers’ Compensation Act would no longer apply. This provision requires workers to file claims for work-related injuries through the State Board of Workers’ Compensation (even when the worker was at fault or caused the accident) and provides employers with protection from lawsuits in other court systems. Since lawsuits based in tort may subject the liable party to exposure for pain and suffering, employers and insurers could potentially face higher costs for claims involving undocumented workers not otherwise covered by the Act; and
While farms are exempt from the Act, industries with production needs (migrant workers, construction and other fields) which are heavily reliant upon day laborers could be hard hit.
If you have questions or comments, please reply to this post or contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com.
Nothing contained in this blog should be construed as legal advice or opinion on specific facts. For editorial comments or suggestions, please contact David W. Willis at (404) 446-4491 or david.willis@davidandrosetti.com.
February 10, 2011
State Board of Workers’ Compensation Update
By: David W. Willis, Esq.
Deadline Approaching for Filing the WC-26: March 1, 2011
A WC-26 Consolidated Yearly Report of Medical Only Cases and Annual Payments on Indemnity Claims must be filed with the Board on or before March 1st following each calendar year with respect to all medical and indemnity payments for the previous year for work related injuries. The State Board mandates that a WC-26 be filed annually even if no reportable injuries or payments occurred during the reporting year. For questions or more information please contact a David & Rosetti attorney at 404-446-4488 or you may call the State Board call center at 404-656-3818.
Publishing of Appellate Division Awards
Chairman Rick Thompson recently spoke at the Atlanta Bar Association Worker' Compensation Section luncheon and confirmed that the Board is now publishing Awards issued by the Appellate Division in accordance with O.C.G.A. §34-9-12(b). Chairman Thompson stated that these decisions, while not binding give a window into the Appellate Division’s thinking on relevant and recurrent issues. Appellate decisions are currently available for Awards dating back to October 1, 2009. There are no immediate plans to retroactively publish Awards before that date, mainly because of time, cost and manpower concerns.
To view copies of Awards from the Appellate Division you can visit the State Board at http://sbwc.ga.gov and click on the “Published Awards” section at the top left corner. You can perform a key word search for topics of interest. The Board has taken measures to redact the names of the parties to protect their privacy.
If you have questions or comments, please reply to this post or contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com.
Nothing contained in this blog should be construed as legal advice or opinion on specific facts. For editorial comments or suggestions, please contact David W. Willis at (404) 446-4491 or david.willis@davidandrosetti.com.
Deadline Approaching for Filing the WC-26: March 1, 2011
A WC-26 Consolidated Yearly Report of Medical Only Cases and Annual Payments on Indemnity Claims must be filed with the Board on or before March 1st following each calendar year with respect to all medical and indemnity payments for the previous year for work related injuries. The State Board mandates that a WC-26 be filed annually even if no reportable injuries or payments occurred during the reporting year. For questions or more information please contact a David & Rosetti attorney at 404-446-4488 or you may call the State Board call center at 404-656-3818.
Publishing of Appellate Division Awards
Chairman Rick Thompson recently spoke at the Atlanta Bar Association Worker' Compensation Section luncheon and confirmed that the Board is now publishing Awards issued by the Appellate Division in accordance with O.C.G.A. §34-9-12(b). Chairman Thompson stated that these decisions, while not binding give a window into the Appellate Division’s thinking on relevant and recurrent issues. Appellate decisions are currently available for Awards dating back to October 1, 2009. There are no immediate plans to retroactively publish Awards before that date, mainly because of time, cost and manpower concerns.
To view copies of Awards from the Appellate Division you can visit the State Board at http://sbwc.ga.gov and click on the “Published Awards” section at the top left corner. You can perform a key word search for topics of interest. The Board has taken measures to redact the names of the parties to protect their privacy.
If you have questions or comments, please reply to this post or contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com.
Nothing contained in this blog should be construed as legal advice or opinion on specific facts. For editorial comments or suggestions, please contact David W. Willis at (404) 446-4491 or david.willis@davidandrosetti.com.
OSHA Update
By: David W. Willis, Esq.
On January 25th the Occupational Safety and Health Administration (OSHA) announced it had temporarily withdrawn from review by the Office of Management and Budget its proposal to restore a column for work-related musculoskeletal disorders on employer injury and illness logs. OSHA stated this action was undertaken in an effort to obtain more input from small businesses on the impact of the proposal. According to the Bureau of Labor Statistics, these types of conditions accounted for 28% of all reported workplace injuries and illnesses resulting in lost time in 2009. According to OSHA it plans to hold a meeting with the U.S. Small Business Administration's Office of Advocacy to "engage and listen to small businesses" about the agency's proposal. See www.OSHA.gov for more information.
If you have questions or comments, please reply to this post or contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com.
Nothing contained in this blog should be construed as legal advice or opinion on specific facts. For editorial comments or suggestions, please contact David W. Willis at (404) 446-4491 or david.willis@davidandrosetti.com.
On January 25th the Occupational Safety and Health Administration (OSHA) announced it had temporarily withdrawn from review by the Office of Management and Budget its proposal to restore a column for work-related musculoskeletal disorders on employer injury and illness logs. OSHA stated this action was undertaken in an effort to obtain more input from small businesses on the impact of the proposal. According to the Bureau of Labor Statistics, these types of conditions accounted for 28% of all reported workplace injuries and illnesses resulting in lost time in 2009. According to OSHA it plans to hold a meeting with the U.S. Small Business Administration's Office of Advocacy to "engage and listen to small businesses" about the agency's proposal. See www.OSHA.gov for more information.
If you have questions or comments, please reply to this post or contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com.
Nothing contained in this blog should be construed as legal advice or opinion on specific facts. For editorial comments or suggestions, please contact David W. Willis at (404) 446-4491 or david.willis@davidandrosetti.com.
In the News...
Alissa Atkins Quoted in Business Insurance
Alissa Atkins was recently featured in Business Insurance and is quoted on page 18 of the January 31st issue in the article "States may bar comp for illegal immigrants". Read the article:
http://online.qmags.com/BUI013111?sessionID=D86A73F3BED90C68AD3A8ED73&cid=1398937&eid=16115
New Associates at David & Rosetti, LLP
David & Rosetti, LLP welcomes Michael Memberg and Jennifer Smith as new associates of David & Rosetti, LLP.
Michael received his J.D. in 2008 from the Walter F. George School of Law at Mercer University. He focuses his practice on workers' compensation claims but also has experience on subrogation matters and representing insurers in the defense of general liability claims. Michael’s article, "Tightening the Belt: The Compensability of Gastric Bypass Surgery under the Georgia Workers’ Compensation Act," was published in the State Bar of Georgia Workers' Compensation Section Newsletter, Summer 2007. He was also selected in December 2010 to be a guest on The Layman’s Lawyer, a radio program sponsored by the Atlanta Bar. Michael is active with the Pro Bono Partnership of Atlanta and was recently recognized for his participation.
Jennifer also practices in the area of workers’ compensation defense. She received her J.D., cum laude, from Georgia State University School of Law in 2009. Prior to practicing law, Jennifer worked for nearly ten years with Resurgens Orthopaedics, a large Atlanta-area medical practice. As Director of Reimbursement she handled health insurance contracts, structured workflow and training programs, and designed systems to increase revenue. She also spoke at numerous seminars regarding health insurance contract reimbursement. Today she continues her involvement with the Atlanta Volunteer Lawyers Foundation, an organization she joined during law school.
For more information about Michael and Jennifer please visit our website at www.davidandrosetti.com or call us at (404) 446-4488.
Alissa Atkins was recently featured in Business Insurance and is quoted on page 18 of the January 31st issue in the article "States may bar comp for illegal immigrants". Read the article:
http://online.qmags.com/BUI013111?sessionID=D86A73F3BED90C68AD3A8ED73&cid=1398937&eid=16115
New Associates at David & Rosetti, LLP
David & Rosetti, LLP welcomes Michael Memberg and Jennifer Smith as new associates of David & Rosetti, LLP.
Michael received his J.D. in 2008 from the Walter F. George School of Law at Mercer University. He focuses his practice on workers' compensation claims but also has experience on subrogation matters and representing insurers in the defense of general liability claims. Michael’s article, "Tightening the Belt: The Compensability of Gastric Bypass Surgery under the Georgia Workers’ Compensation Act," was published in the State Bar of Georgia Workers' Compensation Section Newsletter, Summer 2007. He was also selected in December 2010 to be a guest on The Layman’s Lawyer, a radio program sponsored by the Atlanta Bar. Michael is active with the Pro Bono Partnership of Atlanta and was recently recognized for his participation.
Jennifer also practices in the area of workers’ compensation defense. She received her J.D., cum laude, from Georgia State University School of Law in 2009. Prior to practicing law, Jennifer worked for nearly ten years with Resurgens Orthopaedics, a large Atlanta-area medical practice. As Director of Reimbursement she handled health insurance contracts, structured workflow and training programs, and designed systems to increase revenue. She also spoke at numerous seminars regarding health insurance contract reimbursement. Today she continues her involvement with the Atlanta Volunteer Lawyers Foundation, an organization she joined during law school.
For more information about Michael and Jennifer please visit our website at www.davidandrosetti.com or call us at (404) 446-4488.
January 26, 2011
Does immigration fraud affect an employee’s right to workers’ compensation income benefits?
By Lindy Z. Kerr
In Bollinger Shipyards, Inc. v. Director, OWCP (Rodriguez), 604 F.3d 864 (5th Cir), the 5th Circuit in Louisiana saw the intersection of federal workers’ compensation law under the Longshore Harbor Workers’ Compensation Act (LHWCA) and issues that commonly arise when undocumented workers are disabled as the result of a work injury.
The court held that an undocumented worker injured in the United States was entitled to Federal Workers’ Compensation benefits under the Longshore Harbor Workers’ Compensation Act (LHWCA). The decision is consistent with the position Georgia and other states have taken in state workers’ compensation claims.
In the case, employee Rodriguez falsely told his employer he was a U.S. citizen at the time of hire and provided a false Social Security number. Bollinger Shipyards uncovered the fraud after the employee was injured. In the workers’ compensation claim, the company argued Rodriguez was precluded from workers’ compensation benefits because of his immigration status and fraud. The Court disagreed, reasoning that the plain language definition of “employee” in the LHWCA does not preclude undocumented workers. The Court also rejected the argument that payment of income benefits would be at odds with the holding in the United State Supreme Court case of Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002). In Hoffman, the Supreme Court held the National Labor Relations Board could not award back pay to an undocumented alien who had never been legally authorized to work in the United States as such relief was contrary to federal immigration policy in the Immigration Reform and Control Act of 1986 (IRCA).
Georgia has taken a position similar to the federal court in Rodriguez. As set forth in several appellate decisions following Hoffman Georgia has rejected the argument that an undocumented worker does not meet the definition of “employee” under the Act. Georgia courts have also struck down the argument that paying income benefits to an undocumented worker is at odds with federal immigration policy as set forth in IRCA. In fact, Georgia has held that excusing employers from paying workers’ compensation benefits would reward employers for hiring illegal workers. See Earth First Grading v. Gutierrez, 270 Ga.App. 328, 606 S.E.2d 332 (2004); Continental Pet Technologies, Inc. v. Palacias, 269 Ga. App. 561, 604 S.E.2d 627 (2004). But see Martines v. Worley & Sons Const., 278 Ga. App. 26 (2006)(where light duty work is offered contingent on the claimant bringing documents which prove he can work legally his failure to produce such documents may justify a suspension of weekly benefits).
For questions about Longshore matters contact Lindy Kerr at (404) 446-4486. For questions regarding undocumented workers please contact David Willis at (404) 446-4491.
If you have questions or comments, please reply to this post or contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com. Nothing contained in this newsletter should be construed as legal advice or opinion on specific facts. For editorial comments or suggestions, please contact David W. Willis at (404) 446-4491 or david.willis@davidandrosetti.com.
In Bollinger Shipyards, Inc. v. Director, OWCP (Rodriguez), 604 F.3d 864 (5th Cir), the 5th Circuit in Louisiana saw the intersection of federal workers’ compensation law under the Longshore Harbor Workers’ Compensation Act (LHWCA) and issues that commonly arise when undocumented workers are disabled as the result of a work injury.
The court held that an undocumented worker injured in the United States was entitled to Federal Workers’ Compensation benefits under the Longshore Harbor Workers’ Compensation Act (LHWCA). The decision is consistent with the position Georgia and other states have taken in state workers’ compensation claims.
In the case, employee Rodriguez falsely told his employer he was a U.S. citizen at the time of hire and provided a false Social Security number. Bollinger Shipyards uncovered the fraud after the employee was injured. In the workers’ compensation claim, the company argued Rodriguez was precluded from workers’ compensation benefits because of his immigration status and fraud. The Court disagreed, reasoning that the plain language definition of “employee” in the LHWCA does not preclude undocumented workers. The Court also rejected the argument that payment of income benefits would be at odds with the holding in the United State Supreme Court case of Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002). In Hoffman, the Supreme Court held the National Labor Relations Board could not award back pay to an undocumented alien who had never been legally authorized to work in the United States as such relief was contrary to federal immigration policy in the Immigration Reform and Control Act of 1986 (IRCA).
Georgia has taken a position similar to the federal court in Rodriguez. As set forth in several appellate decisions following Hoffman Georgia has rejected the argument that an undocumented worker does not meet the definition of “employee” under the Act. Georgia courts have also struck down the argument that paying income benefits to an undocumented worker is at odds with federal immigration policy as set forth in IRCA. In fact, Georgia has held that excusing employers from paying workers’ compensation benefits would reward employers for hiring illegal workers. See Earth First Grading v. Gutierrez, 270 Ga.App. 328, 606 S.E.2d 332 (2004); Continental Pet Technologies, Inc. v. Palacias, 269 Ga. App. 561, 604 S.E.2d 627 (2004). But see Martines v. Worley & Sons Const., 278 Ga. App. 26 (2006)(where light duty work is offered contingent on the claimant bringing documents which prove he can work legally his failure to produce such documents may justify a suspension of weekly benefits).
For questions about Longshore matters contact Lindy Kerr at (404) 446-4486. For questions regarding undocumented workers please contact David Willis at (404) 446-4491.
If you have questions or comments, please reply to this post or contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com. Nothing contained in this newsletter should be construed as legal advice or opinion on specific facts. For editorial comments or suggestions, please contact David W. Willis at (404) 446-4491 or david.willis@davidandrosetti.com.
Study shows more doctors are dispensing drugs at a cost to insurers
By Lindy Z. Kerr
A recently published study from The National Council on Compensation Insurance (NCCI) concludes more doctors are dispensing drugs directly from their office, and the practice is costly. The data used in the study was collected on July 1, 2009 and is for medical services provided between 1996 and 2008 for injuries that occurred between 1994 and 2008. Here are some key findings:
Doctor dispensed drugs often increase prescription costs in a claim because the cost per unit of physician-dispensed drugs is often higher than the cost per unit of the same drug dispensed by a pharmacy.
Nationally, workers’ compensation costs arising from physician-dispensed drugs rose significantly in 2008. In Georgia, there was a higher than average percentage spent on physician dispensed medications. Other states with higher than average percentages include South Carolina, Florida, and Alabama.
In Georgia, the practice of physicians dispensing medication has increased significantly. In 2007 physician dispensed medication only accounted 15% of the total spent on medications. In 2008 physician dispensed medication accounted for over 30% of the total spent on medications.
Ways to keep medicaton costs down:
Most employees have a pharmacy card for filling prescriptions. When possible, encourage employees to fill prescriptions at the pharmacy. Consider contacting the physician’s workers’ compensation coordinator and request medications not be filled at the doctor’s office. Even if the treating physician is not filling prescriptions in house, medication is a costly component of most workers’ compensation claims. Particularly with expensive medications or narcotics, it is important to find out why the particular medication is prescribed, how long it will be prescribed, and whether there are cheaper alternatives. In short, communication with the doctor’s office is key to controlling costs.
If you have questions or comments, please reply to this post or contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com. Nothing contained in this blog should be construed as legal advice or opinion on specific facts. For editorial comments or suggestions, please contact David W. Willis at (404) 446-4491 or david.willis@davidandrosetti.com.
A recently published study from The National Council on Compensation Insurance (NCCI) concludes more doctors are dispensing drugs directly from their office, and the practice is costly. The data used in the study was collected on July 1, 2009 and is for medical services provided between 1996 and 2008 for injuries that occurred between 1994 and 2008. Here are some key findings:
Doctor dispensed drugs often increase prescription costs in a claim because the cost per unit of physician-dispensed drugs is often higher than the cost per unit of the same drug dispensed by a pharmacy.
Nationally, workers’ compensation costs arising from physician-dispensed drugs rose significantly in 2008. In Georgia, there was a higher than average percentage spent on physician dispensed medications. Other states with higher than average percentages include South Carolina, Florida, and Alabama.
In Georgia, the practice of physicians dispensing medication has increased significantly. In 2007 physician dispensed medication only accounted 15% of the total spent on medications. In 2008 physician dispensed medication accounted for over 30% of the total spent on medications.
Ways to keep medicaton costs down:
Most employees have a pharmacy card for filling prescriptions. When possible, encourage employees to fill prescriptions at the pharmacy. Consider contacting the physician’s workers’ compensation coordinator and request medications not be filled at the doctor’s office. Even if the treating physician is not filling prescriptions in house, medication is a costly component of most workers’ compensation claims. Particularly with expensive medications or narcotics, it is important to find out why the particular medication is prescribed, how long it will be prescribed, and whether there are cheaper alternatives. In short, communication with the doctor’s office is key to controlling costs.
If you have questions or comments, please reply to this post or contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com. Nothing contained in this blog should be construed as legal advice or opinion on specific facts. For editorial comments or suggestions, please contact David W. Willis at (404) 446-4491 or david.willis@davidandrosetti.com.
Administrative Law Judges rotate territories
By Lindy Z. Kerr
Under the administration of Chief Judge Richard S. Thompson, the Board is rotating the Administrative Law Judges’ hearing territories each year. The Board recently released the list of territories for each ALJ for 2011. Notable changes include the rotation of ALJs Hartin, Mason, and Imahara to Atlanta. ALJs Belk, Snow, Fain, and Spalding are no longer hearing cases in Atlanta. ALJ Jocoy was rotated to Laurens County (Dublin), Tift County (Tifton), and surrounding counties. Also, ALJ Bohler left her position in 2010 to go into private practice. Therefore, cases with venue in Glynn County (Brunswick), Ware County (Waycross) and surrounding counties do not have a particular judge assigned until the time of the hearing.
For a comprehensive list of each judge’s territories, please see this document:
http://www.davidandrosetti.com/newsletter/pdf/aljhearing.pdf
If you have questions or comments, please reply to this post or contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com. Nothing contained in this blog should be construed as legal advice or opinion on specific facts. For editorial comments or suggestions, please contact David W. Willis at (404) 446-4491 or david.willis@davidandrosetti.com.
Under the administration of Chief Judge Richard S. Thompson, the Board is rotating the Administrative Law Judges’ hearing territories each year. The Board recently released the list of territories for each ALJ for 2011. Notable changes include the rotation of ALJs Hartin, Mason, and Imahara to Atlanta. ALJs Belk, Snow, Fain, and Spalding are no longer hearing cases in Atlanta. ALJ Jocoy was rotated to Laurens County (Dublin), Tift County (Tifton), and surrounding counties. Also, ALJ Bohler left her position in 2010 to go into private practice. Therefore, cases with venue in Glynn County (Brunswick), Ware County (Waycross) and surrounding counties do not have a particular judge assigned until the time of the hearing.
For a comprehensive list of each judge’s territories, please see this document:
http://www.davidandrosetti.com/newsletter/pdf/aljhearing.pdf
If you have questions or comments, please reply to this post or contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com. Nothing contained in this blog should be construed as legal advice or opinion on specific facts. For editorial comments or suggestions, please contact David W. Willis at (404) 446-4491 or david.willis@davidandrosetti.com.
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