Georgia Workers' Compensation Lawyer Blog

Here in Georgia, there is active discussion about reforming workers' compensation laws very soon. I'm not so sure that this would be the best course of action for us as a state, in light of the recent fallout as the result of heavy-handed, poorly-managed reforms undertaken in Illinois.

Recently, feeling unduly burdened by the way that the Illinois workers' compensation system was set up, employers began to clamor for reform. Their system was broken, they said, and the Illinois Chamber of Commerce were of the minds that payments to doctors and other medical providers were egregious; benefits doled out to injured workers were unnecessary and often yielded no marked positive results. Issues like fraud, causation, and high awards were cited.

At the same time, and somewhat intentionally overlooked, there was the fact that premiums for workers' compensation insurance were climbing each year; Illinois businesses and government doled out around three billion dollars in 2009. While these premiums ballooned, insurance company payouts on medical costs and claims decreased consistently. This was due in part to more conscientious safety practices by businesses; there were twenty percent less claims filed in 2009 than in 2000.

For true reform to happen, Illinois attorneys said, insurance premiums wouldn't decrease unless insurance companies were folded into the reform mix. It was a mystery, too, how premiums were even calculated in the first place. Insurance companies had long escaped any true scrutiny.

Statewide hearings to improve the system were held by legislators in early 2010. Reform legislation was passed in June 2010 and the significant amendments became effective in September of the same year.

As a result, doctors and medical providers were forced to take a thirty percent reduction in fees; this move was to save Illinois businesses between five- and seven-hundred million (just under fifteen percent) off their workers' compensation premiums. In addition, workers faced reduced disability benefits, restrictions with regard to choice of providers, medical reviews that delayed or restricted needed surgeries, and upping the ante on proof of causation.

Despite all that was being done in the name of cost savings, insurance companies came through the reforms untouched.

The real shame is that less than six months after reform legislation went into effect, the projected millions of savings was gone. Premiums weren't lowered and, in fact, will be raised yet again. There is a standing recommendation for a 3.5 percent increase in Illinois by the National Council of Compensation Insurance (NCCI). The council, it should be noted, is comprised of insurance company executives.

The physicians, workers and their families sacrificed through this legislation and it turned out to be, essentially, for nothing. Do we want this sort of scenario in Georgia? Do we want the insurance companies to profit further at the loss of funds and benefits necessary to our clients?

In a grim turn of events, a Georgia woman lost a foot as the result of a 2010 work-related accident. Initially, the administrative law judge (ALJ) over her case granted workers' compensation benefits. Upon review, the State Board of Workers' Compensation reversed the ALJ's decision and took away the previously-granted benefits.

Vanessa Stokes, a former head custodian at an elementary school, then appealed to the Superior Court of Coweta County; they upheld the board's reversal. However, Stokes applied for and was granted a discretionary appeal with the Georgia Court of Appeals. She sought reinstatement of the original award of benefits.

The details of this case are pretty unique and interesting. In early May of 2010, Stokes arrived to open up the school grounds as was dictated by her job. It was 5:45 a.m., dark outside and a heavy rain was falling. As Stokes tells it, she pulled her car very close to the school's gates so as to aim her headlights at the lock. While she was outside her car unlocking the gates, her car began rolling downhill backwards.


Instinctively, Stokes ran toward the car so as to stop it, but tripped and fell after just a few steps. It was then that the car rolled over her left foot; a few days later the foot had to be amputated. According to Stokes, she was trying to stop the car so as to ensure that no damage occurred to school property or her car. As it turned out, the car stopped in a wooded area, still on school property.

After the ALJ awarded benefits,the State Board of Workers' Compensation overturned his decision based on their decision that the accident didn't arise out of Vanessa Stokes' employment. This is because they saw that within the scope of her job, her duties were to open the gate, unlock the building, and perform tasks of a janitorial nature. According to the Board, "going after a moving vehicle" was not part of her job and doing so "undertook a personal mission, in pursuit of [her] personal property, not connected to her duties with the [e]mployer." They also found that she didn't try to stop the vehicle for reasons of preventing injury to anyone or damage to her employer's property.

Essentially, they decided that she was deviating from her job at hand and, as such, was deprived compensation. Stokes appealed the case and was shot down by the Superior Court. The Court of Appeals disagreed with the upholding of the reversal and overturned it, saying,
"Under the circumstances presented, we conclude that the Board's decision was based upon an erroneous theory regarding what conduct constitutes a deviation from employment that will bar compensation under the [Workers' Compensation] Act. It is undisputed that, at the instant Stokes' car began to roll, she was on duty (not on break); she was physically located precisely where her job duties required her to be at that time, that is, at the driveway gate; and, she was unlocking the gate, a task required by her job duties and of benefit to the employer. Indeed, but for the necessity that she stop her car on the sloped driveway and exit the car to open the gate, the accident would not have occurred."

So, as this case illustrates, your case isn't over at an initial 'no'. If you need help pursuing the workers' compensation benefits you are entitled to, contact Moebes Law at our Atlanta law office at 404-354-5432.

Where worker's compensation cases are concerned, insurance company attorneys will look for information about a Plaintiff wherever they can. Well, it appears that --for the most part-- enthusiastic users of social media sites and applications can rest easy for now; some recent legal decisions indicate that judges aren't in any hurry to give blanket access to Plaintiff status updates, personal photos, and related content (though at least one judge in Georgia ruled otherwise in 2010).

A Supreme Court judge in New York reminded defense attorneys that just because they ask for something, doesn't mean they have blanket rights to it....they need to establish why they need it and that it will supply information that can't be ascertained by reasonable, usual means such as depositions, pretrial examinations, and interrogatories.

Suffolk County Justice Arthur G. Pitts responded with the following on a Notice to Admit that sought Plaintiffs admission of their social media use:
"It is well settled that the purpose of a Notice to Admit is to eliminate from the litigation, factual matters which will not be in dispute at trial, not to obtain information in lieu of other disclosure devices...[It] may not be utilized to request admission of material issues or ultimate or conclusory facts which can only be resolved after a full trial. It may not be employed as a substitute for other disclosure devices, such as examinations before trial, depositions upon written questions or interrogatories. Herein, the information sought by defendant [via the] Notice to Admit, would be available through other disclosure devices, including simply asking the plaintiff at his examination before trial whether he utilizes social media sites. A Notice to Admit clearly is the improper device to obtain such information."

Even with these recent challenges to accessing information about a Plaintiff via social media, you still need to be mindful of how you are using the internet's popular networking tools.

1) If you are involved in any sort of litigation, it's best to just simply leave any mention of it off of Facebook, Twitter, or your blog.

2) Be mindful of other things you post as they relate to your case. For instance, say you're suing an employer for worker's comp benefits because of a fall. In that circumstance, maybe you shouldn't be posting pictures of yourself on Facebook that show you posing at the top of a ladder, flashing a cheesy grin and giving two thumbs up.

3) Think about the way friends and family might chance to use social media. If you're in litigation for workers' compensation, your wife's enthusiastic revelation via Twitter that "My husband and I rocked our FACES OFF at the concert last night!!1!" probably isn't the greatest of ideas.

4) If you have an expectation of privacy, then you should act accordingly: Lock down all your social media as tightly as possible. Blogs can be password-protected, Twitter can be locked, Facebook allows you to show as much or as little of your life as you prefer based on individual settings. Still, though, there are no guarantees that your online life cannot be accessed.

5) Like anything else in life, common sense should prevail here. If anything in you says, "Should I hit publish on this?" you probably should not.

Remember, picking up a phone could save you a lot of headache in the long run: If you're unclear on what matters and what does not in relation to your worker's compensation case, call your attorney for guidance.  

To kick off the New Year, Dannie Joe Eiland filed suit in Hawaii District Court (Eiland v. Smith Maritime LLC et al) against his employers. Eiland, a married father of four with another child on the way, was injured while at work on motor tug M/V Niolo. His injuries resulted in medical expenses, time out of work, and a possible permanent disability that could end his career as a seaman.

In early September 2011, Eiland was at work when he found oil on the Niolo's deck. He was in the process of cleaning it up in order to prevent the oil from leaking overboard and causing a Coast Guard 'oil pollution incident'. While performing the cleanup, Eiland slipped on a portion of the boat's stern called the Pin Table. He fell and sustained a compression fracture to his thoracic spine as well as other non-specified injuries.

The oil was cooking oil and had come from the boat's galley (the sea goer's term for 'kitchen'). A new galley hand had poured the oil into trash bags and placed them on the rear portion of the tug's deck for removal. The oil then leaked from the bags and was likely tracked around the deck and Pin Table by other crew members moving around the vessel.

Eiland was examined medically and found unfit for duty. To add insult to his injuries, while the Plaintiff was at home recovering his employers sent a binding arbitration agreement to his home. In the cover letter accompanying the agreement, the Defendants apparently intimated that should Eiland not sign the paperwork agreeing to arbitration, they would cut off all payments and benefits to him and his family, even before he was deemed medically fit to return to his duties.

Eiland's suit claims that this agreement was put forth to him in bad faith during a time of personal duress. He felt that his rights as an employee were being overlooked and that his employers intentionally sought to further limit his rights with the binding arbitration agreement. Eiland also believes that his employers are liable because unsafe deck conditions and poorly-trained crewmembers contributed to his injuries; he claims that his employers simply did not provide the safety measures that were within their means and, further, were their responsibility.

At the time of injury, Eiland was under long-term, mutually-signed contracts with the Defendants. As a result, he feels entitled to their care and concern through, at minimum, the duration of those contracts. The employers tucked a paragraph in the agreement for binding arbitration that would have cut all moneys and benefits off on March 15th, 2012.

Dannie Joe Eiland cites the Jones Act as a basis for his suit. The Jones Act, for those of you who are unfamiliar, is a part of U.S. Maritime Law that allows injured sailors to make claims and collect from their employers for acts of negligence by a vessel's owner, captain, or other members of the crew. It also ensures the right to a trial by jury.

So, yes: If you are working at sea with a U.S. company, you could be entitled to Worker's Compensation benefits under the law. We'd love to help you with your workers' comp case if, like Dannie Jo Eiland, your employer doesn't see eye to eye with you.

Some people refer to their pets as their 'fur babies' and regard them as their children. One woman in Manhattan wants the state of New York to legally recognize this bond by declaring her pup's 'humanity' and officially recognizing that the dog is "considered a living soul that feels pain" and that the "pain and suffering is recognized by" the state.

Were this to happen, Elena Zakharova could then seek greater damages than the law currently allows for her dog, Umka. Current laws only compensate owners for the value of their dogs, which in Zakharova's case would likely be her initial investment of $1,600.

Professing "love at first sight", Ms. Zakharova had a handful of months after taking the two-month old pup home before Umka began to suffer. It turned out that Umka had a bad knee requiring immediate surgery. Her other three knees are defective, as well, and so are her hips. So far $4,000 has been spent on corrective measures, with another $4,000 estimated. Even with these surgeries, it is predicted that Umka will never walk or run correctly. It turns out that --despite having been purchased in an upscale pet boutique-- Umka was a product of a midwestern puppy mill and this information was not disclosed to Zakharova at the time of purchase.

Elena Zakharova is now represented by animal rights lawyer Susan Chana Lask, who filed suit on behalf of both woman and dog. The ultimate goal of the suit is to have the court rule that Umka is a living being rather than property, and as such is entitled to damages such as pain and suffering and medical reimbursement. Should this not occur, Ms. Lask would like to see 'lemon laws' dealing with pets extended to four years from the current fourteen days.

In light of all this, we have two questions:
1) Will we see 'working dogs' (as in dogs helping the blind or the police--not dogs working as prostitutes) get workers' compensation benefits one day? and
2) How will they sign my fee contract?

The Georgia Court of Appeals has, fairly recently, decided that injured workers cannot be forced to sign away medical privacy rights--specifically, the right to refuse consent for the opposing attorney to meet alone with the treating doctor and tell him/her God knows what--in order to continue getting workers' compensation disability benefits. A brief summary of the McRae v. Arby's decision can be found here. 

In McRae, the insurer's attorney wanted to speak alone with the injured worker's doctor; the doctor refused the request, so the insurer's attorney tried to compel the injured worker to allow such a meeting. While the trial judge agreed with the insurance company's attorney, the Court of Appeals did not.

Currently, there are discussions regarding how this ruling's reach can be altered or expanded upon via legislation, so there may be additional reach to this ruling in the coming months, as Georgia's state legislature begins its session.  In the meantime, be careful to read any forms given you after your workers' compensation injury from the insurance adjuster.  While a WC-207 release may be required, any additional forms or language requiring agreeing to the scenario explained above is not required. 

Finally, if your medical information and/or health privacy has been violated, you can report and fight such violations by using the steps outlined in this previous blog entry.

Unable to find an itunes application that will assist with evaluating exposure in a workers' compensation claim, Atlanta workers' compensation attorney Michael Moebes created an app to do just that. "The Compulator" was designed to serve as a tool for litigation attorneys, insurance adjusters, and injured plaintiffs to analyze case exposure and negotiate settlements at mediations.

Features include a date calculator that figures the number of weeks between dates; this assists in totaling past due workers' compensation disability benefits or future disability exposure for 350 or 400 week cases.

There's a present value calculator function for tallying the present value of a lump sum settlement covering several years of future earnings.

A life expectancy calculator uses the Center for Disease Control's (CDC) data to analyze remaining life expectancy based on age and gender.

For mediations, the settlement worksheet feature allows clients and attorneys to get a "net to the client" figure after costs and contingency fees. 

The mediation tracker feature shows midpoints between dollar amounts offered and demanded; then it tracks and charts the upward (or downward) progression of these midpoints.

Look for "The Compulator" for iphones and ipads in the business section of itunes, or click here to get there quickly.  Don't negotiate your injury case without it!

Sometimes, for no apparent reason, a workers' compensation insurance company will decide that a referral for surgery or for additional treatment with another doctor, even when the recommendation or referral came from the workers' comp authorized treating physician, is not authorized. Often, we see this when the recommendation is for pain management, psychiatric care, or surgery. Instead of allowing the injured worker to see the expert his workers' comp doctor suggests, the insurance company will want him to go much farther away to a medical provider of its choosing instead.

Under Georgia Workers' Compensation Rule 200(b)(2), there are a few factors a court will consider when deciding whether the insurance company's requested change in doctors is of benefit to the injured worker:

1) proximity of the doctor to the injured worker's home
2) accessibility of the doctor to the worker
3) excessive/redundant performance of medical procedures previously given
4) necessity for specialized care
5) language barriers
6) referral by the authorized treating physician
7) noncompliance of the doctor with board rules
8) who's on the panel of physicians
9) duration of treatment without improvement
10) number of prior treating doctors
11) prior requests for changes in treating doctors
12) if the worker was released to regular duty by the authorized treating doctor
13) if the current doctor has nothing more to offer.

If your "workers' comp doctor" has referred you for treatment with another specialist or at another facility, and the workers' comp adjuster is denying it or has filed a motion through a defense attorney for a change in physicians to keep you from treating with the doctor to whom you were referred, call our Atlanta injury lawyers' office for assistance with filing an objection and/or a hearing request with the State Board of Workers' Compensation so that you can fight for the medical care your doctor wants you to get instead of the medical care your employer's insurance company wants you to get.

Most of the workers' compensation claims our Georgia practice handles includes back injuries and back pain from related injuries. Back pain often follows a work-related lifting injury, a fall at work, or workplace injuries to knees that alter the injured worker's gait. Below are some suggestions for dealing with back pain that can relieve aching backs and limit the use of narcotic pain medications:

1) Alter how you stand. Don't slouch. Keep one foot in front of the other with knees slightly bent.

2) Alter how you sit. Again, don't slouch. Keep knees slightly higher than hips to support the low back.

3) Alter how you sleep. Reduce pressure on your low back by sleeping on your side with a small pillow between your knees.

4) Alter how you use the phone. Get a headset if you use the phone a good bit during the day to avoid that awkward craning of the neck often needed while taking notes during a phone call.

5) Take a walk. Stress increases back pain. Exercise and fresh air can help.

6) Watch your diet. Gaining weight makes back pain worse. Limiting intake of fats and carbs, especially when an injury is preventing your usual exercise regime, can help.

7) Change your position frequently. I often see clients struggle to sit for an entire workers' compensation deposition when there has been a back injury at work. Stretch and relax every 15 minutes or so when having to sit or stand for extended periods.

8) Consider quitting smoking. Perhaps you've needed a big enough motivation for the past several years. Restricted blood flow from nicotine will decrease the cushioning in your vertebrae. This means more pain. Stopping the nicotine addiction will help.

A common denominator found in the hundreds of clients our firm has helped over the past couple of years is pain: physical, mental, emotional, etc. The most pronounced and debilitating of these, however, is usually physical. Most clients have prescribed medications from their workers' compensation doctors, but they don't want to get too reliant on narcotic medications, or they worry about losing their ability to think clearly and stay otherwise healthy.

The longer one stays in pain, the more the injured worker seems to be unable to focus on anything other than his pain. As if he is imprisoned, he can focus only on the "here" and "now" instead of maintaining perspective that includes past happiness and comfort or extended family and friendships.

How can this be minimized?

Do for others. While physical restrictions are obviously going to limit one's ability to add that playroom onto your brother-in-law's ranch house, coming up with simple ways to help others will take one's focus off his own misery and frustration.

Examples could include giving a neighbor a ride somewhere if you're able to drive. You could bring dinner to a relative who's just left the hospital. You may offer to watch some friends' children so that they can enjoy an evening out.

In short, focus on others to temporarily forget the pain you feel. Do that often enough, and you'll start counting your blessings instead of your troubles.

When you file a workers' compensation claim in Georgia, you'll need to sign a WC-207 release that allows the workers' compensation employer/insurer to access medical records reasonably related to your injury at work.  Medical records may, of course, be shared between different doctors and specialists.  However, sometimes medical information that is protected is shared with parties that should not get this information, such as companies or organizations where an injured worker is being sent pursuant to a return to light duty under O.C.G.A. 34-9-240. 

If this occurs, here is a link providing the resources you may use to file a complain with the U.S. Department of Health and Human Services for violations of your HIPAA rights.

In short, your complaint must:

1. Be filed in writing, either on paper or electronically, by mail, fax, or e-mail;
2. Name the covered entity involved and describe the acts or omissions you believe violated the requirements of the Privacy or Security Rule; and
3. Be filed within 180 days of when you knew that the act or omission complained of occurred. OCR may extend the 180-day period if you can show "good cause." 
   

For additional information about workers' compensation medical benefits in Georgia, please call our Atlanta law office at 404-354-5432.

We are pleased to announce that Atlanta injury lawyer Michael Moebes was featured as a profiled attorney in Carolyn Elefant's new book: 

Solo by Choice - The Companion Guide: 34 Questions that could Transform Your Legal Career.

The book will be released next month, but as contributors, our firm received an advance copy, along with an index of our 17 published responses provided to the questions asked of successful self-employed attorneys throughout the United States.  The dog was not included with the advance copy, however.

Topics covered include how to create immediate revenue streams, a spouse's role in deciding to go solo, work/life balance issues, budgets, marketing (online and otherwise), business plans, and many other questions and answers useful to attorneys hoping to one day become self-employed. 

If you're an aspiring or new solo attorney and would like to get this great reference book, look here in late October to get a copy.  In the meantime, if you've been injured at work and have questions about your Georgia workers' compensation claim or personal injury case, please contact Moebes Law, LLC at 404-354-5432.

Almost every time we submit settlement paperwork to the Georgia State Board of Workers' Compensation, the stipulation is approved. Settlement paperwork is normally generated by the workers' compensation defense attorney and is then sent to our office for signatures. Once we review the forms and make any necessary changes, we submit the papers back to the employer/insurer's lawyers' office, and it's submitted to the State Board for approval.

The only time I've seen a client's stipulation paperwork fail to get Board approval was when a client was not forthcoming about child support liens he had in another state. So, always be honest about any child support liens that are outstanding when you settle your workers' compensation claim in Georgia, even if they are from other states.

Remember the children. They are our future.

I'm frequently asked to spell my name over the telephone with new workers' compensation clients, opposing attorneys, and insurance adjusters.

Because of my 14-year military background, this question normally leads me into my default method of phonetic spelling:  Mike, Oscar, Echo, Bravo, Echo, Sierra.

However, the letters are often lost on the listener, either from a lack of experience with general aviation or a failure to serve in the armed forces.

So, I've created a new phonetic alphabet for spelling my last name that's more befitting my proud profession:

M as in Major Surgery
O as in Occupational Illness
E as in Exemplary Damages
B as in Burns over 25% of the Body
E as in Emotional Distress
S as in Severe Sciatica

Now that you can spell Moebes Law, feel free to refer us to your friends and neighbors who have been injured at work in Georgia.