Georgia Workers' Compensation Lawyer

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."

Last month, a horrific scene met first responders at an elementary school in a sleepy Connecticut town. In the wake of the shootings at Sandy Hook Elementary, there is plenty of talk about legislation pertaining to mental health and gun control. Lawmakers in Connecticut, however, are adding another layer to the discussion: They want to see an expansion of workers' compensation as it applies to first responders.

Representative Stephen D. Dargan (D-West Haven) is the co-chair of the state legislature's public safety committee. He plans to propose legislation after the first of the year that will broaden the circumstances under which emergency personnel can receive workers' comp in Connecticut.

"This is something I've already discussed," said Dargan, "I'm sure right after the holiday that this is going to be one of the bills that I am going to issue" for consideration. Connecticut's next legislative session begins on January 9th.

This isn't the first time that the topic of broadening their workers' compensation law has been up for discussion. The big concern previously was the potential cost, according to Dargan. He notes that if the scope of an expansion were limited to extreme circumstances like the one encountered at Sandy Hook, it might just be possible to usher it in.

State law provides for workers' compensation benefits to pay for the counseling of police officers who have suffered mental or emotional injury by "use of deadly force or subjection to deadly force in the line of duty. Firefighters have a provision covering them when they've witnessed the death of another firefighter in the line of duty.

Around half a dozen Newtown police officers were first responders to the Sandy Hook scene. They could hear the sound of  Adam Lanza's rifle being fired as they ran into the building, but none of them were subject to -or had to use-- deadly force. Instead, they encountered twenty dead children and six women who had been shot to death.

"We have a lot of guys who served in Iraq or Afghanistan, but this is much different because it involves children and you see what happened to them and you see the faces of their families," said State Police Colonel Daniel Stebbins, voicing his concerns about the officers that went into the school.

"Anybody who went into that building has to be affected. It is worse than anything we have ever experienced." According to Stebbins, counselors have been available since the shooting. 

Newtown Police Commissioner Joel T. Faxon is an attorney who supports the expansion of workers' comp law for first responders. Though unsure if any of the Newton officers would apply for benefits, Faxon believes it's important that they have that option.

In Georgia, as we've discussed in the past, there is no workers' compensation claim for mental injury not preceded by a physical one, no matter how horrific the events witnessed by the responded.  I'd like to see changes made in this regard, and certainly one would hope that changes in other states will make change here more probable.