Georgia Workers' Compensation Lawyer Blog

The "Choosing Wisely" Initiative and Medical Testing

2012-05-15T12:00:00Z

The Choosing Wisely® initiative is a recent partnership between the ABIM (American Board of Internal Medicine Foundation) and Consumer Reports whose aim is to help encourage "physicians, patients and other health care stakeholders to think and talk about medical tests and procedures that may be unnecessary, and in some instances can cause harm." A comprehensive (and sometimes comfortably overlapping) list of 45 common tests and procedures was compiled by nine specialty societies representing 374,000 United States physicians. Each list, titled Five Things Physicians and Patients Should Question, identifies five tests or procedures commonly used in each specialty field whose necessity should be questioned and discussed; the lists are intended to stimulate patient-doctor conversations in order to improve care and eliminate unnecessary patient procedures. Essentially, then, Choosing Wisely is calling for health care providers to limit the use of these procedures where possible. This reduces patient discomfort, saves money and time all the way around, and encourages a more effective use of health care resources.

Sounds easy enough, right?

Well, there are a host of doctors who are balking at the notion of this plan. Dr. Gilbert Ross of the American Council on Science and Health is skeptical of the guidelines, and believes that "...few cases are amenable to such simplistic prospective analyses." He says, "Also, patients often demand particular tests, and these requests are often difficult to ignore."

]]> A host of other critics are also wary of this initiative, saying that limiting procedures is tantamount to 'healthcare rationing'. "This kind of one-size-fits-all approach can be a real detriment to good care," says Dr. Eric Topol, chief academic officer of Scripps Health.

There is a contingent of voices around this issue that say the part of the problem is doctors who practice 'defensive medicine', wherein doctors order extensive testing to avoid malpractice lawsuits.

There are doctors who strongly disagree and enthusiastically embrace the Choosing Wisely guidelines, believing them to be an idea whose time has come. Dr. Kelly B. Thrasher, a primary care internist right here in Atlanta, is one such proponent. A couple of weeks ago she weighed in with her opinion via the AJC, calling overtesting a 'red herring' that distracts from the real issues at hand:

"I recently ordered a CT scan for a healthy 41-year-old male patient complaining of abdominal cramping. He was not experiencing fever, chills, diarrhea or vomiting, but he was losing weight and feeling generally fatigued.

"Many would think a $2,000 CT scan would be an unnecessary test for a patient who likely had a 'stomach bug.' But this time it showed multiple areas of infection and diseased intestines due to a previously ruptured colon. He was sent for emergency surgery, which saved his life.

"I did not order this test out of fear of a lawsuit, but rather due to clinical intuition arising out of a strong physician-patient relationship."

In her declaration of support for Choosing Wisely, she upbraids those special interest groups that would detract from the initiative by claiming that doctors run unnecessary tests to avoid lawsuits. "Defensive medicine' provides a convenient distraction from the real issues that plague our health care system....costs have not been reliably measured. Existing surveys often rely on narrow surveys of doctors with biased wording and low response rates to bolster their claims."

Proposed Changes to Medicare Set-Asides Affect Workers' Compensation Settlements

2012-05-09T08:26:54Z

The meeting of the 111^th Congress was the one that saw Medicare Secondary Payer bill H.R. 2641 flop over and twitch. The 110^th saw that happen to H.R. 2549 also, and H.R. 5309 went the same way during the 109^th. In case you don't recall this particular bill in all its iterations, it addressed Medicare Set-Asides ("MSAs") for workers' compensation.

Now it's reanimated in the form of H.R. 5284, which was introduced by Congressmen David Reichart (R-Washington) and Mike Thompson (D-California) on April 27^th. The bill seeks to amend the Social Security Act, specifically section 1862. If you're not familiar with that particular section, it's the one that deals with Medicare's secondary payer rules and set-asides with regard to workers' compensation settlement agreements. It's the essentially the same bill that was proposed to the three previous Congresses -all of which died in committee-- and it was called by the same name which is assigned to it now: The Medicare Secondary Payer and Workers' Compensation Settlement Agreements Act. This time, however, it will have the phrase 'of 2012' behind it.

Don't know much about all this? Well, in short, Medicare requires that a trust fund be established in cases where injured workers will become eligible for Medicare during their claim period. The funds are set aside as a stopgap for Medicare spending; this is to help conserve the resources of an already-overburdened Medicare system.

]]> There is a catch, though: The Centers for Medicare and Medicaid Services (CMS) must approve any set-asides for trusts exceeding $25,000 before a claim can be closed. CMS has been roundly criticized for the length of time that it takes to review and approve those trusts, for the lack of consistency in its review standards for trust amounts, and for its lack of a process by which decisions can be appealed. H.R. 5284 aims to resolve delays and introduce consistent standards into the CMS set-asides process.

The Government Accountability Office (GAO) released a report on these problems in March of this year. According to the GAO, the average processing time for set-aside proposals went from 22 days in April 2010 up to 95 days in September 2011, which of course delayed case resolutions (CMS officials stated that they'd like to be able to wrap up reviews in 45 days). The report further stated that a backlog was created by a marked increase in submissions from 2008 to 2011, along with a change in the data system that slowed the process overall. It was noted that submissions that were ineligible altogether jumped in number significantly (by 148 percent) and this created a further backlog.

"This is a much-needed 'common sense' reform to ensure that Medicare claims are handled in a way that is more efficient so that the parties involved can move forward swiftly and with certainty to protect injured workers," said Congressman Reichert. "Our bill gives injured workers the confidence that their health care claims will be processed in a fair and timely way."

You can see the full text of the bill in PDF format here. It will be interesting to see whether or not it suffers the same fate as its predecessors.

MSAs can be confusing when questions arise regarding when they are (or aren't) required. For additional clarification about how MSAs can affect your workers' compensation settlement in Georgia, contact Moebes Law, LLC at 404-354-5432.

Connecticut woman fights back against overzealous workers' compensation investigators

2012-05-04T16:00:00Z

You might expect investigators to be vigilant when checking up on the activities of workers whose workers' compensation case they are administering. What you wouldn't expect is that they would be so vigilant as to incite the family of an injured worker to file a lawsuit against them.

That's what happened recently in Connecticut. A woman who was so fed up with the aggressive tactics and harassment from the third-party firm who is administering her husband' workers' compensation claim filed a diversity action against them.

The plaintiff is the spouse of a Connecticut Department of Corrections Employee who had earlier filed for workers' compensation benefits because of an alleged work-related injury. According to the plaintiff, after her husband sought benefits the defendant got a little too enthusiastic about surveillance of her family. She claims that they were chased by the defendant's representatives at speeds up to eighty miles an hour while her daughter and grandfather were in the car and then a few days later they were followed to Rhode Island while on a family camping trip. The defendant's agent tailed them all the way to their campsite and took pictures of the group. The plaintiff is also alleging that defendant's employees conducted further additional surveillance of her family home and that their actions have caused her emotional distress.

The firm then filed a motion for summary judgment -in other words, a judgment entered by a court for one party and against another without a full trial-- while citing exclusive remedy, which was shot down by the federal district court. The court found that there were circumstances cited in the suit that negate summary judgment, and that the workers' comp administrator wasn't subject to exclusive remedy in this case. Exclusive remedy provisions, in a nutshell, protect employers from common law suits by employees. Most states have these provisions in their workers' compensation statutes, and they're in place to protect employers from large tort awards (in case you were wondering, a tort is a wrongful act that results in injury to a person, their property, or their reputation, and which entitles an injured party to compensation).

In this particular case, the district court found that the Connecticut legislation hadn't meant for insurance carriers and their representative to be exempt from all torts in connection with the handling of claims. The case will move ahead to trial.

Have you or your family encountered trouble from overenthusiastic investigators as a result of your Georgia workers' compensation claim? Have you been doubly injured as a result? Contact Atlanta workers' compensation attorney Michael Moebes for help with your case.

Georgia's cracking down on businesses who shuck their duty to provide workers' compensation coverage for employees.

2012-05-03T07:20:35Z

The state of Georgia requires most employers with three or more full-time, part-time or seasonal employees to offer workers' comp benefits. Any business found in non-compliance with coverage requirements faces civil penalties of up to $5,000 per violation as well as possible prison time. Some companies in Georgia seem to think that workers' compensation insurance policies are elective and are deciding that they don't need to cover their employees in case of on the job injury. Thankfully, the state of Georgia disagrees, and it is equipping itself to do battle against those companies that fall short on obligations to their workers.

Formerly forced to rely on complaints and drop-in inspections, workers' compensation inspectors are finding that the digital age is a boon to them. Since the beginning of 2012 those Georgia inspectors, with the help of computers, have caught up with 538 businesses that have no workers' comp policies in place. As a result, approximately $480,000 in fines has been levied against the companies, who will pay a total of $1.2 million in premiums to come into compliance and cover their 2,700 employees. And these are just the ones that have been caught!

It only took four compliance officers and four inspectors to find these violators, according to Richard Thompson, chairman of the State Board of Workers' Compensation. Previously a big impediment to inspectors doing their jobs was the time it took to do drop-in visits to meet with business owners and make physical inspections of their records. With the new assistance of the databases they reference, an inspector can check up on a potential violator from a laptop while sitting in his vehicle. This online research into who is paying premiums and who is not yields information on as many as twelve businesses in the time that it used to take to do one on-site check.

"That's a time saver. We don't have to waste our time going into the business. We're more interested in knowing which businesses don't have insurance," said Stan Bexley, director of enforcement. At the end of the year, his department will check former violators in the database to make sure they are still providing the coverage that they were forced to purchase for their workers.

In case you were wondering who the most frequent violators are, they tend to be restaurants, retail stores, and small construction companies have the worst track records for noncompliance, so they are checked with a greater frequency than other types of businesses. My personal experience is that Nigerian-owned moving companies tend to shirk getting "comp" insurance, but I've also seen a few restaurants do the same.

The state is making it easier for citizens to remain vigilant as well. Georgia now has a website that enables workers to check an employer's workers' comp coverage. If the company proves to have no insurance, the website then instructs the user on how to report a violation.

If you need help from an Atlanta workers' compensation attorney, give me a call at 404-354-5432, and we can discuss getting to work on your claim, insurance or not!

Workers' compensation fraud can be fun! Until it's not.

2012-04-27T12:00:00Z

Listen. It's perfectly okay to have the impulse to beat someone into a human stew. It's perfectly okay to act on that impulse if it's within the confines of a ring and the realm of a sanctioned bout. It would be to your benefit, though, to not claim to be disabled in any form or fashion, collect workers' comp benefits as a result, and then participate in MMA fights wherein you scoop up victories and glory and paydays.

This goes double if the bouts are being filmed and then archived online--alongside your record of extensive wins--where your name and likeness are easily unearthed.

Silly Raphael Davis. While he has a pretty solid record as a Mixed Martial Arts competitor, he's not really strong in the forward-thinking or honesty departments. The Los Angeles firefighter, who is nicknamed 'The Noodle' in fight circles, was arrested on April 10^th at his home. According to the Los Angeles County District Attorney's office, Davis was picked up on suspicion of insurance fraud; he ended up being charged with four felony counts.

According to records, the LAFD employee filed for workers' comp benefits from December 2, 2008 until May 20, 2011. During this span of time, he competed in several (at least seven) MMA fights, winning all of them save one. It stands to reason that this showing might run counter to his claim that he was unable to work because of temporary total disability. The fact that he climbed into the ring in the first place, most judges would opine, negates his claim: He who can withstand (or deliver) a fierce beating can carry a firehose.

The healthy stack of wins will just be icing on the prosecution's case against Mister The Noodle, who is being held in lieu of $30K bail and could face a five-year prison sentence if convicted. The Noodle could possibly have saved himself all this messy trouble if he had just read my post on what the internet could potentially do to your Georgia workers' compensation claim.

In fact, perhaps Davis should look up that stripper from a couple of years ago who was collecting workers' compensation benefits while actively ~~skinning a pole~~ dancing. They can trade anecdotes about their cases! Or they could talk about fancy things like video cameras and the internet, both of which make life difficult if you are trying to break the law and get away with it.

If you have a legitimate workers' compensation claim in Georgia, give Moebes Law, LLC a call at 404-354-5432. We'll leave the phone on for you.

Do workers stand to lose if employers are allowed to opt out of workers' comp?

2012-04-25T11:54:43Z

Workers' compensation reform hasn't just been a hot button issue here in Georgia. Other states are wrestling with change in their state systems, as well. One of the most current examples of this is the state of Oklahoma. The Oklahoma State Senate approved a bill last week that would allow companies to self-insure or have alternative coverage in lieu of their traditional workers' comp system. The bill passed 28-17, with mostly Democrats in opposition; a few Republicans joined them. Now it returns to the House for consideration there.

The idea of opting out was met with strong opinions on both sides of the argument. Senator Jim Wilson (D-Talequah) voted against the bill. "We're just trying to avoid compensating workers. I know what we're going to do is stick it to the employee with this. And I'm concerned we're going to take businesses down with it." Many opponents of the bill agree with him, and they are convinced that the bill will reduce benefits due injured workers.

]]> On the other side of the table, groups that represent big businesses lauded the bill as a way to reduce workers' compensation insurance costs.

Under this bill, businesses can't simply check out of the system as it exists; they're subject to specific requirements before opting out of state coverage. They must either reach a specified risk threshold or have paid out a minimum of $50,000 in losses over at least one of the previous three years. All plans would have to meet the benefit plan requirements for employees under the federal program known as ERISA (Employee Retirement Income Security Act).

There are opponents of the bill who believe it could cause a rise in premiums for companies that go the traditional route and remain with the current system. Senator Jim Sparks (D-Norman) is one of them. "As those big employers pull out of the system, you shrink the pool, and you can't spread the risk as widely. As you focus the risk, the premiums will increase."

Senate President Pro Tem Brian Bingman disagrees: He says that, under the alternative coverage, injured employees will receive no less benefits than they do under the present plan. Bingman (R-Sapulpa), who co-authored the bill in the Senate, said "Out-of-control workers' compensation costs are the number one obstacle to job growth in Oklahoma. If we are serious about making Oklahoma a more prosperous place for our families, we must address the number one issue that is making Oklahoma less competitive with our surrounding neighbors."

Most of the people I talk to believe that workers' compensation reforms ultimately help companies at the expense of their employees. Do you think of workers' comp reform leaves injured employees to flounder? My observation is that it usually does.

Could injuring myself while fornicating on a business trip mean I get workers' comp benefits?

2012-04-22T12:30:00Z

Successfully proving that an injury during an after-hours tryst on a business trip arose out of and in the course of your employment (provided your vocation is one that is legal) is unlikely under Georgia workers' compensation law. But Australia is quite different in this regard. And because I want my readers to be sophisticated in their understanding of other cultures and international law, let's look at how this scenario played out in the Australian courts recently.

In November 2007, a Commonwealth human relations worker was on a job-related trip to New South Wales with another employee. They were lodged in motel rooms booked by their employer. Over the course of the trip, the employee who ended up filing a compensation claim met up with a guy whose acquaintance she'd made a few weeks earlier. They had dinner and then later went back to her motel room to make a mess of the covers and any sanctified relationships they had "back home."

While in flagrante delicto, a glass light fixture on the wall above the bed was pulled from its rightful place and landed on the woman. It caused injuries to her nose and mouth, and she needed to go to a local hospital for treatment.

The woman filed a claim for Australia's version of workers' compensation. ComCare, the workplace safety governing body in Australia, initially rejected the worker's claim. When she took it to the Administrative Appeals Tribunal --the next rung in the Australian workers' comp ladder-- the Tribunal upheld the original denial of compensation handed down by ComCare. They stated that for compensation to be payable, a behavior must have been required or encouraged by the employer; it was their esteemed opinion that motel sex didn't qualify as activity in the due course of her employment.

Sex falls under the scope of a person's 'normal activities', according to Melbourne legal expert Harold Luntz, who is a Professor Emeritus at the University of Melbourne. "It seems to me to be perfectly natural....if the employers are sending people away to work outside their home base they will engage in all sorts of normal activities." Luntz likened the case to one where a plaintiff had slipped in the shower while on an employer-mandated trip and was then compensated for injuries sustained: "It doesn't seem to me to make any difference whether it was a slip in the shower or a sexual activity," he noted.

And, according to last week's outcome, Federal Court Judge John Nicholas sees it just that way. He heard the woman's appeal and overturned the Administrative Appeals Tribunal's decision, finding that the fact that she was in a motel room paid for by her employer was enough of a connection to her work to warrant a payable claim. He further said that the initial decision was wrong in finding it was necessary for the employee to show that she'd been involved in an injury-causing activity "which was expressly or impliedly induced or encouraged by her employer. If the applicant had been injured while playing a game of cards in her motel room she would have been entitled to compensation," even if her employer hadn't expressly directed or encouraged that activity (and if he had, of course, we'd have other lawsuits to analyze here).

"In the absence of any misconduct or an intentionally self-inflicted injury, the fact that the applicant was engaged in sexual activity rather than some other lawful recreation activity does not lead to any different result."

So, dear blog readers from Georgia who travel to Australia on business: conduct yourself accordingly.

Help! I'm going to court about my Atlanta car wreck. What do I do?

2012-04-13T12:00:00Z

In my last post about auto accidents in Georgia, I gave you information on how to get started on seeking reimbursement for your damaged car post-wreck. So you've filed your civil suit and want to know what to do now, right?

Well, you prep for your court date. For whatever reason, you have decided not to hire an attorney to represent you, and you may be nervous about representing yourself. Being thoroughly prepared will help to alleviate some of your anxiety, and here are some tips for equipping yourself:

Be organized. Have everything you need at your disposal and readily accessible. Some things you will likely need with you are receipts, bills, witnesses, and photographs. If you think that you might be more than a little nervous, equip yourself with notes on what you'd like to convey to the court. Keep them brief so that you won't get lost in the notes while glancing to them from time to time. All you need is basic points; you'll be able to fill in the details as you go along. Your notes are just to guide you and jog your memory.

Don't waste your time with affidavits. They're useless since they're considered hearsay, and the judge will not allow them. You'll need an actual person to give an actual account of what needs to be entered into the record. This could be a witness who saw the accident with their own two eyes, or it could be the person at the body shop who did/is doing your repairs and can attest to the cost of those.

Be neat, clean, and mannerly. These are all symbolic of your respect for the court. Your appearance is also an extension of being organized.

Be prepared to present your case. Present to the court what traffic rule or duty of the road that the other person failed to comply with. You can testify on your behalf and recount your observations, since the first part of the case is for testimony. While you're doing this, be brief and professional. Don't go on a long rant and don't swear.

Introduce any evidence you brought, whether it be photos, witnesses, or bills and receipts. When you introduce these things to the court, you must 'tender' them. This means that each item (bills, receipts, photos) you want the judge to examine must be numbered and you are required by court procedure to say, "I am tendering exhibit number so-and-so" and hand it to the judge. You are also required to show it to the other party before you attempt to show it to the judge.

You can call the other party to the stand. You may ask them questions, but you're not allowed to argue with them. Again: Keep it professional! I can't stress this enough. You can ask questions such as what speed they were traveling at, what they were paying attention to, whether or not they were doing anything in addition to driving such as fiddling with the radio or talking on the phone. Keep questioning to a practical minimum and stick with ones relating to how the crash happened. It might help if you have a list of questions already prepared for this going into court.

Before you rest your case, use this checklist:

Did I tell the judge all my evidence dealing with why it's the other guy's fault rather than mine?
Did I submit all the pictures and paperwork showing damages?
Did I tender my exhibits?

You can give a closing argument. You should use this time to tell the judge the most pertinent, strong facts in your favor and reiterate why the other side is wrong.

I hope I've made you feel better about court procedure post-accident. If you've changed your mind and don't want to represent yourself in your civil case for damages, give us a call and we'll talk about acquiring a skilled Atlanta trial lawyer to help!

I live in Georgia and got in a car wreck. How do I get the other guy's insurance to pay for my car?

2012-04-11T12:00:00Z

Lots of folks don't know how to proceed after they've been in an auto accident. Insurance companies for the other party can be intimidating, and the paperwork involved may overwhelm someone who has never had any experience with a car wreck. One of people's biggest worries is how to go about getting their car fixed after the wreck.

The first thing you probably need to know is that if the police report cites you as being at fault, you're going to have a harder time getting your repairs paid for. It's not unusual for a police officer to assign blame wrongly. This isn't because they are out to get anyone; they're doing the best they can on the spot. Officers are not in the business of deciding liability and often have to go with what appears to be the most obvious scenario.

If you are blamed for the accident within the police report, or if you get a citation for the accident, you will have had to have collision coverage on your own auto insurance policy. To put it bluntly, the other driver's insurer will refuse to pay your damages unless it appears that their driver is to blame. In this case, you'll need to submit your claim to your own insurer. If you have no collision coverage at the time of the wreck, then your situation is pretty grim. Some Atlanta injury lawyers will bundle property damage claims with bodily injury claims, but they make those calls on a case-by-case basis.

If you're not to blame and there isn't an injury claim, it's advisable to do the following:

Fight the ticket in court. If you aren't represented by a lawyer, and the policeman doesn't show up the first time, the case will probably be continued to another date. If he doesn't appear a second time, the court will throw out the ticket.

Don't plead guilty to a citation if you want to fight its liability. This is basically admitting you are to blame. In most Georgia courts you can plead 'Nolo Contendere' once every five years; you want to be careful how and when you use this, though. Use it where it can do you the most good. In other words, you want to save this option for important charges. A second option is to try the citation before a judge. If you lose, this result has no bearing on a civil case where your opponent is seeking damages.

File a civil suit. After your traffic court issue is done, go to the magistrate court in the county where the other driver lives. You can find their address on the police report. For about $125, you can file a civil suit. In your complaint, explain in simple terms--without heated language-- why the other side is to blame and how much it will cost to fix your vehicle. Try to acquire more than one estimate, so you can establish a baseline that is fair to your case.

Okay, that's the pretrial information. Next time I'll give you the rundown on how to be prepared for your court date. Or, if you think it might be too intimidating or overwhelming to go it alone, you could give me a call and inquire about legal representation.

Ignoring your mail may cost you your workers' compensation case.

2012-04-06T05:44:09Z

If you ignore a notice from the Georgia courts, it could cost you your case. Ready Mix USA found this out last month, when the Georgia Court of Appeals upheld earlier decisions by lower courts. Neither Ready Mix or their insurance company, Liberty Mutual, responded to a notice of hearing and failed to appear at a workers' comp hearing for one of their employees. The employee, Terrell B. Ross, was then awarded full temporary disability benefits at the July 2010 hearing by the administrative law judge (ALJ).

It was afterward that Ready Mix and Liberty Mutual tried to have the hearing vacated, claiming that they didn't receive adequate notice about it.

This all started when, in December 2009, Ross was swinging a sledgehammer and started feeling pain and tightening in his back. He reported to his supervisor, but was not referred to Ready Mix's physicians. A week or so later, Ross started feeling pain radiating from his lower back and reminded his supervisor about the previous injury. It was then that Ross was sent for an evaluation and diagnosed with lumbar and thoracic strain as a result of his job. The doctor who saw him put Ross on light duty and prescribed medication and physical therapy. A handful of weeks later, Ross picked the doctor who was authorized to perform treatment; the doctor recommended a cervical MRI. After that MRI, Ross' doctor referred him to an orthopedic spine specialist to evaluate and treat him further. The specialist recommended facet injections to Ross' lower back and took him out of work completely as of late May 2010. This resulted in a work status report stating that Ross was totally disabled until his next appointment or the workers' compensation board approval of facet injections.

Then Ross asked for a hearing with the ALJ in order to ask for authorization for a cervical MRI, lumbar facet injections, temporary total disability benefits, a 15% penalty for nonpayment, and assessment of attorney fees/litigation costs. It was at that time Ross served Ready Mix and Liberty Mutual with written discovery requests. He was seeking Requests for Admissions, Interrogatories, and Requests for Production of Documents. The hearing was set for July 2010; with Ready Mix and Liberty Mutual absent (and having provided no response to Ross' discovery requests!), Ross testified and was awarded what he'd asked for.

This brings us to the part where Ready Mix and Liberty Mutual stamped their feet and wanted the hearing vacated. They claimed that they weren't provided with adequate notice; they also wanted to withdraw or amend their responses (or lack thereof) to the Request for Admissions from Ross. The ALJ issued an order slapping down the motion and cited the inclusion of the notice they were both served in the record.

In short, the court stated that they notified the Defendants by both snail mail and e-mail. The Court of Appeals said, in essence, "Hey, we have a record of mailing and that's good enough. We even double-checked the addresses for you after the fact and found that there were no clerical errors on our end responsible for your lack of receipt. We can't help if you didn't snag your mail for whatever reason." The attorneys for Ross testified that they had not heard from anyone at Ready Mix or Liberty Mutual beyond the initial authorization for three different doctors from the insurance adjuster.

Ready Mix and Liberty Mutual lost all subsequent appeals. They may have had grounds to dispute Ross' injury, but since they dropped the ball on reading their mail, we'll never know! Don't do this.

More about criminal law in Georgia:

2012-03-23T13:00:22Z

Okay, in an earlier post I was discussing the differences and similarities between types of law. I briefly outlined civil case procedure and was highlighting the basics of criminal cases. We left off at burden of proof, wherein a Plaintiff is responsible for proving a Defendant's guilt beyond a reasonable doubt through the introduction of evidence into the criminal proceedings.

Now typically, when a criminal Defendant is indicted for a crime, the indictment is handed down (or, 'issued') by a grand jury. A grand jury consists of a group of citizens that is appointed for a specific span of time to meet and decide the merits of criminal cases. In short, it's up to the grand jury to decide whether or not there might be enough evidence to make it worthwhile to go ahead with the prosecution of a defendant.

The grand jury hears a presentation from the Plaintiff's attorney; remember, the Plaintiff is a government entity bringing a case against the accused. The Defendant has a presumption of innocence (and not much more) as their defense at this point. The grand jury then makes a decision as to whether there is enough evidence involved to bring an indictment. An indictment is basically an official or formal accusation that a person has committed a crime.

If the grand jury decides 'no', then that's usually the end of the case. If they decide 'yes', then the Defendant is indicted and the prosecuting attorney (in Georgia, this would be a District Attorney) then takes the case. At this point, many different things can happen, depending on the case in question. 'Messier' cases will have things like motions to suppress (a request to keep certain evidence away from a trial jury) and introductions of prior crimes. Every case is different; so different, in fact, that there is not space to go into it at any length here. Most criminal cases in Georgia have very limited discovery (the obtaining of evidence from the opposing party) and depositions are a rarity in all but the most unusual circumstances.

There can only be one of three results to a criminal trial: Guilty, not guilty and a hung jury. Here in Georgia if a defendant is guilty then the Judge decides the sentence (the Defendant's punishment) based on both the criminal code and their review of any special circumstances. Many of these cases go into appeals (an official questioning of the jury verdict and/or judge's sentence) so that any perceived mistakes by the Court can be argued.

A hung jury occurs when the trial jury could not unanimously decide, despite repeated requests from the judge, the outcome of the case that is being tried. A hung jury means that most of the time the prosecutor will begin the trial process all over from the beginning.
If the defendant is found not guilty, that typically is the end of things.

I hope I've helped you to understand civil and criminal procedure a little better through these posts. Get in touch with my Atlanta law office if there is anything law-related you have a question about and I'll do my best to accommodate you!

"The Compulator" app is now available for Android phones

2012-03-20T18:09:12Z

Atlanta injury attorney Michael Moebes has released the well-received Compulator app for Google Android phones this week. Previously, the litigation tool was only available for iphones and ipads.

You can download the 'Droid version of the Compulator app here.

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 by Moebes Law at the Google marketplace today!

Moebes recognized by Avvo as top Georgia workers' compensation lawyer

2012-03-16T02:30:50Z

Avvo.com is a website that provides a forum for laypersons to ask questions that qualified attorneys can answer. The site also has a rating system based on factors such as experience, expertise, speaking and writing engagements, peer reviews, client reviews, etc. The highest rating an attorney can receive is a 10.0, and this rating has been bestowed upon Michael Moebes of Atlanta's Moebes Law, LLC injury law practice.

Congratulations!

Lawyer Michael Moebes | Top Attorney Workers Compensation

What are the differences between Georgia Injury Law, Criminal Law, and Georgia Workers' Compensation Law?

2012-03-14T13:00:22Z

The law is intimidating and confusing to most normal people (but not me, because I'm exceedingly brilliant). Because I am mostly an awesome guy, I like to help others. Because I love the law, I want you fine people to be as familiar with and comfortable with it as possible. That's a big part of the reason why I maintain this website and try to relay as much information about the law as I can through anecdotes and current events.

You might want to have a basic understanding of civil litigation in Georgia, so I will cover the basics of it today. I would like you to feel less intimidated by the law and any civil cases you may be presented with in the future. You may even be facing one now, and that's how you found this Georgia law blog.

Okay, the biggest distinction in the law lies between criminal law and civil law. If the law was an office building, criminal law would occupy one floor while civil law occupied another. They still utilize the same basic structure and amenities, but have different features to them. The paint on the walls and the furnishings would be specific to each branch, so to speak. Similar features are that they both involve trials, several shared rules of evidence, the jazz of cross-examination and defense attorneys.

Other than that, though, they're systems of justice addressing totally different parts of our society. Georgia workers' compensation attorneys work in a specific subset of law governed by Georgia workers' compensation law. There's an administrative law board rather than jury trials; case law and rules of evidence are different than for criminal law.

Criminal law is a type of law whose basic function is to decide between what are and are not criminal actions. It deals with things as seemingly small as a driving citation and things as large as murder, as well as every shade of law-breaking in between. The Plaintiff (the person or people bringing about the lawsuit) in the case will always be a government entity; the sole aim of the case is to figure out the guilt or innocence of a Defendant (the person the lawsuit is against) and an appropriate punishment if they are found guilty as charged. So then: Criminal law is pretty much solely about crime and punishment.

Okay, in every case the government --at any level: Federal, State, City, etc.-- as the Plaintiff files suit against an individual or group. This individual or group is the Defendant in the case, and is then charged with the crime. They then have the option of hiring a criminal defense lawyer, having a criminal defense lawyer appointed by the court if they can't afford an attorney on their own, or representing themselves.

The Plaintiff has the burden of proof. It's the government's job, then, to bring evidence in the form of testimony, photos, or documents to trial in order to convince a jury of the Defendant's guilt. Burden of proof in a criminal case, incidentally, is much higher than in a civil case. Enough evidence must be brought to prove to that jury beyond a reasonable doubt that the Defendant is responsible for the crime they are accused of. If you were to represent this
in percentages, the jury would have to be something like ninety percent (!) convinced of a Defendant's guilt.

I hope I've brought about a basic understanding and comfortableness about the differences between criminal and civil proceedings for you thus far. I don't want to throw too much information to you all at once, so in my next post, I'll discuss criminal law procedure further.

I slipped! I fell! Do I need an injury lawyer?

2012-03-09T20:28:21Z

Our Atlanta law office recently got a phone call like this:
Him: "I just busted my ass at the hardware store!"
Me: "You brought your donkey to the hardware store? Are you Amish?"

So you've slipped, you've fallen, and you've gotten up only to find yourself in a bad situation physically. Sometimes mere accidents turn into something bigger than the sum of their parts, and you may have to seek assistance from a property owner or business when you've taken a spill in their domain.

How are you supposed to proceed in these instances? What does the law expect of both you and the business or property owner? Further, what does Georgia state law do to both recognize and uphold your rights as a victim in a slip and fall situation? Is your injury claim a viable one?

Say you were walking along in a grocery store and you slip on a puddle of clear liquid, fall, and break your foot. Your doctor tells you that you will need surgery. The outcome of one trip to the market is far cry from the grabbing of some milk and eggs that you initially set out to do. It's at this juncture that you might start to wonder, "I'm pretty seriously injured, here. What are my rights?"

Slip and fall laws in Georgia are pretty straightforward. The reason that you were on a property dictates the property owner's obligation(s) to you. If you were trespassing, you don't have a whole lot of rights. If you received an invitation to be there as a benefit to the owner --which you are, where most retail establishments are concerned-- then you are owed what is known as reasonable care, where the owner keeps the place you are visiting free from known and obvious hazards.

Secondly, Georgia laws want to know what you slipped or tripped on and whether or not the Defendant (property owner) had a greater knowledge about potential hazards than you did. This means that generally a Plaintiff should be able to recover damages caused by a fall, because it is typically assumed that a Defendant will have greater knowledge of circumstances and things that will cause a fall than a Plaintiff will. You will need to prove either actual knowledge or constructive knowledge.

The former is exactly what it sounds like: Actual, concrete knowledge of a hazard (for example, observing it themselves). The latter is a bit more complicated, because constructive knowledge is assumed by the court if a) a Defendant doesn't have evidence of a 'reasonable' inspection process to comply with the understanding of their duty toward ordinary care and b) despite the exercising of ordinary care a Plaintiff had no knowledge of a hazardous situation because of actions or conditions within a Defendant's control.

In short, a Plaintiff has to show both knowledge (actual or constructive) on the part of a Defendant as well as the fact that he didn't learn of the hazard despite exercising reasonable care. There's no pat answer as to whether or not you'll be able to win on a slip and fall claim without seeking legal counsel or representation.

Reach out to our Atlanta injury lawyers' office for our advice...that's what we're here for! We'll answer your questions and guide you in any way we can.