Georgia Workers' Compensation Lawyer

In honor of those who have given their lives to support and defend the United States Constitution, I'd like to wish everyone a happy Memorial Day and post a paper by Colonel James Moschgat called "10 Things a Janitor Can Teach You About Leadership" referencing Bill Crawford, a WWII Medal of Honor recipient and Air Force Academy janitor:

William "Bill" Crawford certainly was an unimpressive figure, one you could easily overlook during a hectic day at the U.S. Air Force Academy. Mr. Crawford, as most of us referred to him back in the late 1970s, was our squadron janitor.

While we cadets busied ourselves preparing for academic exams, athletic events, Saturday morning parades and room inspections, or never-ending leadership classes, Bill quietly moved about the squadron mopping and buffing floors, emptying trash cans, cleaning toilets, or just tidying up the mess 100 college-age kids can leave in a dormitory.

Sadly, and for many years, few of us gave him much notice, rendering little more than a passing nod or throwing a curt, "G'morning!" in his direction as we hurried off to our daily duties. Why? Perhaps it was because of the way he did his job-he always kept the squadron area spotlessly clean, even the toilets and showers gleamed. Frankly, he did his job so well, none of us had to notice or get involved. After all, cleaning toilets was his job, not ours.

Maybe it was his physical appearance that made him disappear into the background. Bill didn't move very quickly and, in fact, you could say he even shuffled a bit, as if he suffered from some sort of injury. His gray hair and wrinkled face made him appear ancient to a group of young cadets. And his crooked smile, well, it looked a little funny.

Face it, Bill was an old man working in a young person's world. What did he have to offer us on a personal level?

Finally, maybe it was Mr. Crawford's personality that rendered him almost invisible to the young people around him. Bill was shy, almost painfully so. He seldom spoke to a cadet unless they addressed him first, and that didn't happen very often. Our janitor always buried himself in his work, moving about with stooped shoulders, a quiet gait, and an averted gaze. If he noticed the hustle and bustle of cadet life around him, it was hard to tell. So, for whatever reason, Bill blended into the woodwork and became just another fixture around the squadron. The Academy, one of our nation's premier leadership laboratories, kept us busy from dawn till dusk. And Mr. Crawford...well, he was just a janitor.

That changed one fall Saturday afternoon in 1976. I was reading a book about World War II and the tough Allied ground campaign in Italy, when I stumbled across an incredible story. On Sept. 13, 1943, a Private William Crawford from Colorado, assigned to the 36th Infantry Division, had been involved in some bloody fighting on Hill 424 near Altavilla, Italy. The words on the page leapt out at me: "in the face of intense and overwhelming hostile fire ... with no regard for personal safety on his own initiative, Private Crawford single-handedly attacked fortified enemy positions." It continued, "for conspicuous gallantry and intrepidity at risk of life above and beyond the call of duty, the President of the United States ..." "Holy cow," I said to my roommate, "you're not going to believe this, but I think our janitor is a Medal of Honor winner."

We all knew Mr. Crawford was a WWII Army vet, but that didn't keep my friend from looking at me as if I was some sort of alien being. Nonetheless, we couldn't wait to ask Bill about the story on Monday. We met Mr. Crawford bright and early Monday and showed him the page in question from the book, anticipation and doubt on our faces.

He starred at it for a few silent moments and then quietly uttered something like, "Yep, that's me." Mouths agape, my roommate and I looked at one another, then at the book, and quickly back at our janitor. Almost at once we both stuttered, "Why didn't you ever tell us about it?" He slowly replied after some thought, "That was one day in my life and it happened a long time ago." I guess we were all at a loss for words after that. We had to hurry off to class and Bill, well, he had chores to attend to.

However, after that brief exchange, things were never again the same around our squadron. Word spread like wildfire among the cadets that we had a hero in our midst - Mr. Crawford, our janitor, had won the Medal! Cadets who had once passed by Bill with hardly a glance, now greeted him with a smile and a respectful, "Good morning, Mr. Crawford."

Those who had before left a mess for the "janitor" to clean up started taking it upon themselves to put things in order. Most cadets routinely stopped to talk to Bill throughout the day and we even began inviting him to our formal squadron functions. He'd show up dressed in a conservative dark suit and quietly talk to those who approached him, the only sign of his heroics being a simple blue, star-spangled lapel pin.

Almost overnight, Bill went from being a simple fixture in our squadron to one of our teammates. Mr. Crawford changed too, but you had to look closely to notice the difference. After that fall day in 1976, he seemed to move with more purpose, his shoulders didn't seem to be as stooped, he met our greetings with a direct gaze and a stronger "good morning" in return, and he flashed his crooked smile more often. The squadron gleamed as always, but everyone now seemed to notice it more. Bill even got to know most of us by our first names, something that didn't happen often at the Academy.

While no one ever formally acknowledged the change, I think we became Bill's cadets and his squadron. As often happens in life, events sweep us away from those in our past. The last time I saw Bill was on graduation day in June 1977. As I walked out of the squadron for the last time, he shook my hand and simply said, "Good luck, young man."

With that, I embarked on a career that has been truly lucky and blessed. Mr. Crawford continued to work at the Academy and eventually retired in his native Colorado where he resides today, one of four Medal of Honor winners living in a small town.

A wise person once said, "It's not life that's important, but those you meet along the way that make the difference." Bill was one who made a difference for me. While I haven't seen Mr. Crawford in over twenty years, he'd probably be surprised to know I think of him often. Bill Crawford, our janitor, taught me many valuable, unforgettable leadership lessons. Here are ten I'd like to share with you:

Continue reading "Happy Memorial Day 2013" »

The North Dakota State Legislature is considering a bill that could dramatically alter how pain and its relation to pre-existing medical conditions are interpreted in future worker's compensation decisions.

House Bill 1163 would amend an existing law, adding language that says pain is only a symptom and not a sign that a pre-existing condition is worsening. The way the law reads now states that a claim is compensable if an injury "substantially accelerates [the] progression or substantially worsens [the] severity" of a pre-existing condition. The new language added to the bill would not allow pain to be used as evidence of an acceleration or worsening.

The existence of pain, then, would not be a valid diagnostic tool for doctors to use and present as evidence in a worker's compensation claim. Should the bill pass, only diagnostic imaging such as x-rays and MRIs would be allowed to be submitted as evidence.

Proponents of the bill such as Workforce Safety and Insurance (WSI), the fund that is the sole provider of worker's compensation coverage to employers in North Dakota, say it is merely a clarification of the language of the law. The motivation seems to be a North Dakota Supreme Court decision that reversed a previous ruling in which the lower court had denied benefits based on evidence of pain in a work-related aggravation of an equipment operator's arthritic back.

Under the new bill, that operator's back pain would not be allowed to be used as evidence in a worker's compensation claim.

Physicians have testified, however, that pain is a vital diagnostic tool that shouldn't be removed by a "brief, general and poorly defined addendum to existing law."

Pain management specialist Dr. Michael Gonzalez says that "The wording of this legislation is based on a profound misunderstanding of what pain is."

Even a doctor who is a member of the board of WSI seems to agree. Orthopedic surgeon Dr. Michael Moore said in a written statement "In an age of sophisticated medical technology, there is a public misperception that every condition can be detected or diagnosed by a scan or test."

He continued that pain as a diagnostic tool can be "crucial in determining the severity or significance of an injury, disease or condition."

Moore also sees some possible unintended effects of the bill.

"If the presence of pain or worsening of pain cannot be considered evidence of an injury or of a condition's worsening, then it follows that the absence of pain or improvement of pain cannot be considered evidence that an injury has healed or a condition improved."

By limiting what can be used to determine the validity of worker's compensation claims, legislators -and employers- just might limit their own ability to accurately assess the welfare of employees and "raise all manner of new contentious issues surrounding questions of when a patient could return to work." Clearly, that isn't in anyone's best interest.

Moore has submitted his own language to the legislature to try to better clarify existing law and avoid opening the possibility of an unlimited number of claims. He says WSI "reasonably wishes to avoid accepting liability for every ache or pain that accompanies the normal process of aging."

HB 1163 has passed the House of Representatives but has not yet been acted on by the State Senate.

Thank God Georgia's workers' compensation laws don't include a proposed provision like the one analyzed and reported above.  Taking a person's pain level out of consideration and/or evidence when evaluating or adjudicating a workplace injury is ridiculous. 

A Cuyahoga County judge has awarded nearly $860 million in restitution to a group of Ohio employers involved in a class-action lawsuit that began in 2007. The suit claimed that the Ohio Bureau of Worker's Compensation, which provides worker's compensation benefits to about two-thirds of Ohio's workforce, overcharged the more than 270,000 employers for worker's compensation insurance because of inequities in their group coverage program.

Common Pleas Court Judge Richard McMonagle ruled that employers who were excluded from the group program were charged excessive premiums over an eight year period from 2001 to 2009. Many of the employers named in the suit weren't even aware that they were a part of it.

Stuart Garson, one of the attorneys representing the employers, said "Now is the time for the BWC to take responsibility."

Continue reading "Ohio employers win $860 million after overcharged by workers' compensation insurer" »

Sharon Stone is apparently in need of sensitivity training and maybe a house manager so that she can be hands-off with the staff. Apparently she doesn't know when enough's enough, nor that back problems are legitimate work injuries and can be debilitating long-term if not headed off at the pass.

Last month Angelica Castillo, former maid to Ms. Stone, filed a wrongful termination suit against the actress. The complaint, filed in Los Angeles County Superior Court, alleges that Stone fired Castillo because the latter was injured while carrying in groceries for the actress.

This isn't the first employee-filed suit that Stone has seen. Last year her former nanny, Erlinda Elemen, sued. Elemen, a Filipino national, alleged violations of labor laws as well as abusive language regarding her ethnicity and religious preferences. Stone brushed off those claims as coming from "a disgruntled ex-employee who is obviously looking to get money any way she can," and accused the employee of theft by taking overtime pay that she was entitled to.

Sharon Stone sounds like a real peach.

In the current case, Castillo states that she suffered extreme pain when she hurt her back while carrying Stone's groceries in June of 2012. Even though a doctor ordered her to not lift heavy objects and to get bed rest, Stone ordered her back to work.

According to the complaint, "Plaintiff was required to perform her regular duties, including but not limited to grocery shopping, lifting and moving heavy items as part of cleaning the residence." The ten-page suit also alleges that other employees who could have helped her with her duties were not allowed to do so.

To add insult to injury (no pun intended), the complaint goes on to say "While the plaintiff was still in severe pain, Stone repeatedly yelled at plaintiff for performing her duties more slowly, and called her 'crazy' and 'stupid'." Then Stone fired Castillo, who had been in her employ for two years.

Castillo's complaint accuses Stone of wrongful termination and failure to provide accommodation for the employee's injury.

If you've been subjected to abuse by an employer after an on-the-job injury, you should contact our offices. You have rights under Georgia laws, and as Atlanta attorneys well-versed in personal injury and workers' compensation laws, we are equipped to advise you about those rights and your best course of action in seeking compensation.

Continue reading "My mom was shot by her husband at work. Workers' comp or not?" »

Continue reading "Injured worker likely eligible for dual compensation for catastrophic injuries" »

Last year I started a series of posts covering the types of injuries we handle at Moebes Law.  Today I'd like to discuss strains and sprains which, while similar in nature, are two very different conditions.  They can occur independently of one another or concurrently and are a valid workplace complaint.

A sprain is an injury involving a ligament. Ligaments are the tough, rubbery tissue that connects bones.  Sprain injuries, then, affect joints. The two most common types of sprains involve wrists and and ankles.

There are three classifications for sprain severity. They include:

• Grade I Sprain (Mild): This involves the overstretching or slight tearing of ligaments and doesn't result in joint instability. There is little evidence of injury and the injured person is not functionally affected.
• Grade II Sprain (Moderate): This involves a partial ligament tear and produces bruising, some pain and some swelling.  Some loss of function is experienced, and putting weight or stress on the affected joint is difficult.
• Grade III Sprain (Severe): This involves a complete tear or rupture of the affected ligament(s). There is typically severe pain, bruising, and swelling. Often immobilization and surgery are called for. Also common is the risk of future sprains in the affected area.

When experiencing a sprain, you may feel a pop or tear and have a temporary loss of function in that joint.

A strain is a twist, pull or tear to a muscle, the tissue that facilitates bodily movement, or a tendon, the denser tissue that anchors muscles to various points of the human skeleton.  The two most common areas of strain are back and hamstring muscles.

Unlike with the sprain, strains have two types. Chronic strains are a repetition injury; they occur when a muscle or tendon is overused and/or insufficiently rested between uses. Acute strains occur when there is a direct blow to the body, the tissue is overstretched, or is contracted an excessive amount.

Like the sprain, the strain has three classifications:

• Grade I Strain (Mild): Few muscle fibers are damaged. Healing occurs within two to three weeks. 
• Grade II Strain (Moderate): There is more extensive damage to muscle fibers, but the muscle is not ruptured completely. Healing takes three to six weeks.
• Grade III Strain (Severe): This involves a complete rupture of a muscle. Most typically surgery is called for and healing can take upwards of three months.

Because both sprains and strains can be tricky injuries, so it's best to err on the side of caution and be evaluated thoroughly if either of them occurs to you in the workplace. Neglecting a severe sprain or strain could cause long-term complications that you can't foresee. Strains and sprains are quite common in the workplace and as Atlanta injury lawyers we see them with regularity in Georgia workers compensation cases. If you are unsure if your workplace injury calls for treatment by a physician or entitles you to benefits, please contact our offices for consultation. Better safe than sorry!

You frequently see me use the term "Georgia workers' compensation" on this site, but it occurs to me that you may not know why I do that rather than just writing "workers' compensation." The reason I do so is because there is not a single set of federal workers' comp laws here in the United States. There are differing workers' compensation laws for federal employees, for harbor workers, for residents of the District of Columbia (as well as one for the employees of the District of Columbia), and one for each territory, possession, and state in the U.S. The federal government has never seen fit to consolidate these all into one system.

According to New York attorney Theodore Ronca, there's currently a debate going on over replacing all these varied sets of law --specifically at the state level-- with one unified federal law. He finds it important to outline why workers' compensation laws began as state laws and have remained so.

Some proponents of federal unification cite uniform compensation rates as a positive. Roca argues that this would be an unjustly expensive side effect of unification, as some states could not sustain federal rates that aren't commensurate with their local economies.  He cites the max federal comp rate, which is $1436 weekly (and customarily implements annual cost of living increases) and the fact that this rate wouldn't come down with federalization.

Important to note in the federalization discussion, too, is why workers' comp laws started as state laws and have remained that way since the early twentieth century. The simple answer is that the needs of each state were drastically different when compensation laws were implemented. For instance, states that relied primarily on industry covered factory and construction work. States that were agriculture-heavy took their workers' professions into account as a basis for coverage. As Roca asserts, each state had to conform to its own economic realities in the big picture. While an industrial-leaning state could not afford their disability rolls to swell, an agricultural state could not afford to bankrupt its leaner, more mercurial businesses like farms and ranches with premiums.

So then, locale-based workers' compensation laws have political and economic benefits to each state. States regulate their own insurance laws, empowering a governor with control over a large pool of financial resources with which to serve his constituents. Comp laws at a state level offer advantages for union negotiations within their local legislatures. In fact, unions have a history of actively opposing the federalization of comp laws (alongside insurance companies!), a fact which must stun and amuse pundits and advocates in turns.

Given my observation over the past few years that reforms to the workers' compensation "system" have always resulted in fewer rights for the injured workers, and given the fact that Georgia consistently ranks as one of the lowest states in which to have workers' compensation insurance, I agree with Roca that we would be well served to leave well enough alone. 

While the vast majority of workers' compensation claims are not fraudulent (in a combined ten years of practicing on both the defense and plaintiffs' side, I've seen exactly zero), some unfortunately are. Of those that are, some are more ridiculous than others or are caught in fairly comical ways. While there are all sorts of ways to be caught out in a lie, in the case of a California woman, an X-rated frolic in a public park was her undoing.

According to the Associated Press, 29-year old Modupe Adunni Martin of Hayward, California, formerly worked as a janitor for the Sequoia Union High School District in Redwood City. In February of 2009 she reported an ankle injury and claimed that it left her unable to walk. As a result, Martin made ten visits to doctors over a three-month period in 2009.

A co-worker was suspicious that Martin was exaggerating and alerted the school district, which then contacted investigators with that information. Investigators from the District Attorney's insurance fraud unit began to use hidden cameras near the offices of doctors that Martin was seeing. She was seen in camera footage leaving her appointments on foot, without crutches. In August of 2009, Martin was caught on videotape tossing her crutches into a car, then running to meet up with her boyfriend in a public park.

She did this "little jog" while wearing high heels that she'd slipped on at a nearby gas station, according to a witness.

When Martin arrived at the park, she took part in a sex act that doctors concluded could not have been possible with an injured ankle, according to District Attorney Steve Wagstaffe.

"I guess love just helps one get over injuries," Wagstaffe said in a phone interview last month.

Martin was arrested and charged with ten counts of insurance fraud. In October 2012 she pleaded no contest to felony workers' compensation fraud. In December she was sentenced to nine months in jail in San Mateo County. In addition, she netted three years of supervised probation and was ordered to pay more than $79,000 in restitution.  In summary:  probably not worth it.

In New York state, there is a discussion going on regarding workers' compensation and the high cost of doing business in New York. This is a result of a request by insurance carriers to increase workers' compensation rates earlier this year. It was estimated that the proposed increase would cost $500 million to New York employers.  Does this matter to us Georgia workers' comp lawyers?  Yes.

The New York State Department of Financial Services didn't agree with insurers, however, and not only rejected the rate increase, but actually cut employer costs.In addition to those costs being cut, New York employers began to question the reasoning behind the carriers' request for increases; this year was the third one in a row that double-digit bumps were sought by insurers.

It turns out that the rationale behind the requests is this: Insurers base them on projected future cost increases, but without being required to verify any of the costs. All they do is submit them to the New York Compensation Insurance Review Board, which is an insurance industry group that then submits those unaudited costs to the Department of Financial Services.

It's estimated that this practice has cost New York businesses one billion dollars over the prior three years because of the previous unaudited rate jumps. This is especially ridiculous when you consider the fact that, while these rate increases are being frivolously requested, the claim of insurers is that workers' compensation costs so much to New York employers because of claims by injured workers. This claim is untrue.

Let's look at the numbers: The National Council on Compensation Insurance reports that 2001 workers' compensation claims were 1.6 percent of all employer costs. It reports that in 2011 workers' comp claims had declined to 1.5 percent. According to data compiled by the New York Compensation Insurance Rating Board, between the years 1995 and 2008 worker's compensation costs for employers were cut in half. There were slight increases from 2009 to 2011, but even so, today's employer costs are still a third lower today than they were eighteen years ago.

The reason the workers' compensation costs have declined over the past two decades is that changes and trends in the law have reduced employee access to benefits and have reduced claim costs overall. It can be argued that the cost of doing business in New York, then, is not increased employee payouts, but rather insurance company profits. Insurer profits are a percentage of their premiums, so carriers are inclined to keep high rates and push for increasing them as often as they can.

The interests of both workers and employers need to be protected against rate gouging by profit-minded insurance companies. That being said, while there were successful New York workers' compensation reforms passed in 2007, the only one to be implemented thus far is a provision replacing NYCIRB with a transparent, accountable entity to set workers' compensation insurance rates.  For far too long the worker has been blamed for bilking the system, when in fact more oversight and regulation with regard to insurers is needed.  Am I right?  Of course I am.

It's that time again! Every year Leonard Jernigan compiles a list of the top ten most egregious cases of Employer and Insurer workers' compensation fraud that occurred over the previous calendar year. Despite what you might have been told, the most costly fraud is not committed by workers, but by employers trying to shave some dollars and sneak them into their pockets. Jernigan's list has some real doozies this year, and they add up to over $97 million. Just like last year, let's discuss some of the ones I find the most despicable:

1) Business Staffing, Inc (BSI) was hired by Jackson Brothers Hot Oil Service to provide contract employees. Jackson Brothers required BSI to provide workers' compensation insurance on those employees, so BSI bought a policy from Transglobal Indemnity for $4,100. Subsequently, a 27-year-old oilfield worker was injured in an explosion and had eighteen surgeries and 77 days in intensive care. The worker and Jackson Brothers were forced to sue BSI and Transglobal when his medical bills in excess of one million dollars went unpaid. The court found against the two companies to the tune of $4,466,500 and it was discovered that neither of them had a license to conduct insurance business in Texas.

2) Apparently Ohio has a problem on its hands. Thousands of companies located there skipped out on paying their most recent workers' comp premiums, according to a Dayton Daily News analysis. Over 41,000 private employers failed to report payroll data and submit premiums by the deadline. As of May 2012, over 12,000 accounts were still outstanding in the amount of $5.6 million total. Sadly, this behavior has a tendency to drive up insurance costs for the companies playing by the rules.

3) Several of Jernigan's top ten originate in Florida. Among them is Yucet Batista, who was caught creating fraudulent certificates of insurance so that contractors could pocket over $2 million. Batista created a fake company, purchased a workers' comp policy and then 'rented' it for a fee to uninsured subcontractors.

4)  In July of 2012 the Florida joint task force arrested several people at the culmination of 'Operation Dirty Money.' Hugo Rodriguez, owner of Oto Group, Inc., was arrested along with seven others. They stand accused of running shell companies that directed over $70 million in undeclared payroll through various money service businesses. This enabled Rodriguez and his associates to run a huge construction business without paying workers' compensation premiums. This left his employees unprotected and cheated legitimate businesses.

"Legitimate business owners that pay for workers' compensation, as required by law, are at a competitive disadvantage with those who cheat the system," according to Jernigan, "When people suffer a workplace disability and have no insurance local businesses that provide goods and services feel the pain along with health care providers who cannot get properly paid for their services. The cost of medical care and disability ends up being shifted to the taxpayer through Social Security, Medicare and Medicaid, and in states where compliance is not vigorously enforced a culture of cheating continues."