August 21, 2017

Injured Workers Suffer as Workers Compensation Laws Get More Restrictive

workers comp laws for saleFrequently on this blog I post stories about the difficulties my clients experience trying to get insurance companies to do what they are supposed to do under the law.

Most often the problems I highlight involve an insurance company’s refusal to authorize (pay for) necessary treatment, and some of the tactics I use to force the issue. As you may know, delay in starting needed treatment increases the chances of complications and makes full recovery less likely. If the purpose of the workers’ compensation system is to get injured workers back to work, why do insurance companies intentionally delay treatment and thus lower the chances of a rapid return to work at full capacity.

There are times when an insurance adjuster takes such a ridiculous position – contrary to the law and to human decency – that I have to request a hearing so the case ends up with defense counsel. I’ll ask opposing counsel to explain the adjuster’s behavior and the other lawyer will have no answer. My guess is that the insurance companies figure they can run over unrepresented claimants or newbie lawyers so they act with total disregard of the law. Needless to say that nonsense does not work at Ginsberg Law Offices.

You would probably not be surprised to conclude that a workers’ compensation insurance company’s actions are driven primarily by money. They have obviously concluded that they will make more money fighting and delaying your legitimate claim with the hope of closing your case with a lowball settlement than they will paying for medical care and getting you back to work. [Read more…]

2013 Changes to Georgia’s Workers’ Comp. Laws

Georgia state legislatureEvery year the Georgia legislature considers a variety of proposed laws which may impact workers’ compensation.  This year, several bills passed the Georgia House and Senate and were signed by Governor Deal:

TTD maximum increases to $525 per week.  If you were injured on July 1, 2013 or after, your maximum temporary total disability payment amount increases from $500 per week to $525 per week.  The formula for calculating TTD benefits remains the same – you are entitled to 2/3 of your average weekly wage with a maximum benefit payment which is now $525 per week.

Mileage payments must be made faster.  When we submit documentation to recover mileage reimbursement (for travel to and from the doctor, a deposition or other approved reason), the insurance company must reimburse you within 15 days of submission date.  Previously they could wait up to 30 days to send the reimbursement.  If the mileage check is late, then you will be owed a penalty.

WC-240 return to work procedure changed.  If you attempt to return to work under a WC-240 or not, you must attempt to work for at least 8 hours or one shift for that attempt to be considered reasonable 1.  I continue to encourage my clients to make good faith work attempts.  Under the law if you cannot work for more than 15 days under the work attempt your TTD benefits must be reinstated.

Medical care now limited to 400 weeks.  As of July 1, 2013 injuries, the insurance company is obligated to pay for medical care up to 400 weeks (which is more than 7 years). Only if your case is deemed catastrophic will the 400 week medical benefit cap not apply 2.

  1. I strongly suggest that you not return to work without a WC-240 form.  The WC-240 is completed by your doctor and sets out your work activity limitations.  Read more about the WC-240 procedure here
  2. I have long argued that timing is one of the most important factors in maximizing your settlement.  This change – limiting the insurance company’s obligation to pay for medical treatment makes it even more crucial that we understand and calculate the insurance company’s possible exposure properly.  I discuss this timing issue more in this video

Poultry Plant Worker Injuries Likely to Increase Under New USDA Regulations

chicken processing plant work injuriesWhen I first started practicing law back in 1988, I worked as an associate attorney for a well established insurance defense law firm.  I stayed at that firm for about 7 years before leaving to start my own practice, representing injured workers.

My days as an insurance defense lawyer were invaluable, however, because I learned a great deal about workers’ comp. law from some very good lawyers and I litigated hundreds of cases.   I also traveled throughout the state and got to see numerous job sites in person.

I remember distinctly visiting several poultry processing plants north of Atlanta near Gainesville.  I will never forget watching poultry workers “popping blisters” on conveyor lines of chickens moving quickly overhead.

It is no surprise that poultry plant workers experience a high number of work injuries.  The most obvious type of injuries are repetitive motion injuries such as carpel tunnel, but I also see shoulder injuries, crush injuries and puncture wounds.

Now, I am reading that the U.S. Department of Agriculture has proposed a rule change that will reduce federal oversight of poultry processing plants while allowing processors to speed up their kill lines. 1.

The federal government will save $90 over three years by eliminating the fourth inspector.  At the same time, large processing companies will save over $250 million by increasing the speed of the lines. [Read more…]

  1. Currently USDA regulations required processors to allow four inspectors per line with the lines producing 140 chickens per minute.  The new regulations would only call for three inspectors per line, while allowing the lines to turn 25% faster – 175 birds per minute.

Can You Sue a Co-Worker for Negligence Following an On-the-Job Injury?

sue co-worker

The Georgia Supreme Court recently issued a very interesting decision about your right to sue a fellow employee for pain and suffering damages when the negligent act occurred at work and you are otherwise covered by workers compensation.

In the case of Smith v. Ellis, decided by the Georgia Supreme Court in September, 2012, both Ellis and Smith were employed by the Knight Group, a company that builds homes. On the morning of February 13, 2009, Ellis came by Smith’s house to borrow a tool for personal use. Smith was working at a new subdivision that was mostly empty land and Ellis decided to tag along because Ellis wanted to shoot his new shotgun in one of the empty fields.

Smith had finished his work for the day and was packing up his tools when Ellis accidently shot him while trying to clear a jam in the shotgun.

Smith thereafter filed a workers’ compensation claim against the Knight Group and a negligence action for damages against Ellis.  The Knight Group denied Smith’s claim and he eventually settled in a no liability stipulation.

A no liability stipulation means that the employer Knight Group denied that Smith was injured in the course of his employment but agreed to pay him a lump sum to close the file.

[Read more…]

Tainted Steriod Meningitis Outbreak – Are You at Risk?

meningitis from tainted steriod injectionYou may be wondering if you need to worry about the multistate meningitis outbreak associated with tainted steroid vials produced by the New England Compounding Center.  According to the CDC web site, the only facility in Georgia known to have received and given tainted injections to patients is the Forsyth Street Ambulatory Surgical Center in Macon, Georgia.

A complete list of healthcare facilities that received lots of Methylprednisolone Acetate (PF) may be found here, on the CDC web site.

According to FoxNews, about 17,700 single use vials of the steroid were sent to 23 states and have been recalled.  Patients at risk were injected between July and September 28, 2012.

Patients who received tainted injections are at risk for developing fungal meningitis.  The incubation period for this type of meningitis is 2 to 12 weeks, and symptoms include severe headache, nausea, dizziness and fever.

This type of fungal meningitis is not contagious but can be fatal.  Currently the CDC reports that 119 cases have been identified with 11 of those people dying as a result.

New England Compounding Center has voluntarily withdrawn all of its products.   Compounding centers do not manufacture drugs but they repackage them.  They are not monitored by the FDA.

Could the NFL Use an “Exclusive Remedy” Defense to Block Concussion Lawsuits?

traumatic brain injuryRecently, a number of retired football players have sued the NFL for damages arising from concussion injuries associated with the head trauma regularly incurred in professional football games.  Does the NFL have an argument that closed head injuries incurred by employees – the players – are on the job injuries that are subject to remedy only under workers’ compensation.

Under Georgia law, at least, workers’ compensation is the exclusive remedy for work injuries.   An employee cannot sue his employer for pain and suffering damages.

While the concussion litigation is just beginning, we can expect the NFL to argue that players should not be able to pursue civil damages outside of the workers’ compensation system.  The players will argue that they should not be limited to workers’ compensation remedies because the NFL withheld information about concussions and because of exclusions set out in the collective bargaining agreement between the NFL and the NFL Players Association.

The NFL has won one round in a related legal matter.

Recently, the Atlanta Falcons and the NFL sued the NFL Players Association to prevent injured players from filing workers’ compensation cases in California, where the available benefits are more generous than those provided for under Georgia law.   California law allows claims if the player played at least one game in the state.

The case went to arbitration and the Falcons and NFL won – Falcons players who assert injuries that were incurred while the player was under contract with the Falcons must be filed with the Georgia State Board of Workers’ Compensation.

Over the next few months, we will learn if the traumatic brain injuries suffered by NFL players will be considered as something other than a workplace injury thus making the players eligible for negligence damages.

Can my Spouse Get Paid by the Insurance Company for Helping Me Recover at Home from my Injury?

workers comp reimbursementMany of my clients are surprised to learn that their husband, wife or significant other can ask for payment for “attendant care” of an injured worker at home.   Why?  Often my seriously injured clients cannot take care of basic necessities such as:

  • bathing
  • dressing
  • meal preparation
  • driving
  • cleaning

Given that hospitals often release patients home as soon as possible, I see more and more instances where my clients recover mostly at home, with outpatient visits to rehab.

Under Georgia law (Georgia Code Section 34-9-200(a)), the employer/insurer must provide care that “shall be reasonably required and appear likely to effect a cure, give relief, or restore the employee to suitable employment.”   In the case of Medical Office Management v. Hardee, the Georgia Court of Appeals held that:

There is no express prohibition in the Workers’ Compensation Act against the recovery by an employee of attendant care services provided by a family member, including a spouse. Nor does the employer show that a family member cannot provide attendant home care under the Board’s rules and regulations…

The employer had argued against this “spousal reimbursement” on the grounds that the spouse was performing tasks he/she would do otherwise.   The Georgia Court of Appeals, as you can see, ruled otherwise, and permitted Ms. Hardee’s husband to collect a fee under the State Board fee schedule for attendant services.

What does this mean to you? [Read more…]