Georgia Workers' Compensation Lawyer Blog

By law, bartenders can't let an obviously drunk person leave their bar and drive a vehicle. A city councilor in Boston, Massachusetts wants to add another stop-gap to drunk driving by making sure that the keys of drunk people stay in the hands of the valets to which they have been entrusted.

It all started when Boston city council member Rob Consalvo was taken aback at a remark that was made by a convicted drunk driver during his sentencing hearing back in December 2010. Colin Ratiu, the hit-and-run driver, killed a Northeastern student in a 2010 accident that occurred after he left a concert. "He said that he was so drunk at the concert, he said he couldn't believe that the valet there gave him keys," said Consalvo. It was this that spurred him to action.

Councilor Consalvo then proposed the creation of a law that would empower valets to keep drunk drivers out of the driver's seat. As of now it isn't law for a valet to withhold the keys of an obviously intoxicated person, but it is a fairly common practice.

If a law were passed, then --just like bartenders and restaurant managers-- valets would be required to keep intoxicated persons from getting behind the wheel. They would also require training on the signs and signals that might telegraph to them that the valet patron is drunk.

An informal poll of Bostonians by Boston's WHDH 7News found them in support of Consalvo's proposal. "The responsibility should still stay with the establishment, the valet parker. Just like the bartender," said Michael Morrison.

Consalvo agrees: "If they are giving keys away to drunk drivers and those drunk drivers are killing people, I would argue that they are liable anyway. So, we're not looking at the valet companies as the criminals here or the ones we're targeting, we're doing opposite. We're saying, 'Let's get creative, you partner with us as a city, work with us to be our last line of defense to keep these cars off the road."

If you were to hear the phrase 'workers' compensation fraud', what would it bring to mind? It seems that most people might assume that phrase means that the system is being gamed by employees seeking benefits to which they are not entitled. In fact, the phrase 'workers' compensation fraud' more aptly describes the actions by companies; while fraud by employees certainly exists, more common --and far more costly-- are the dollars bilked from the government by companies and corporations. This runs into the billions each year.

According to North Carolina attorney Leonard Jernigan, "...states could close large portions of their deficits without raising taxes or cutting spending..." and overall workers' compensation costs would be lower if said states would just prosecute those entities defrauding the system."

When companies commit reporting frauds, they cause state workers' comp insurance funds to be under-funded (and possibly requiring replenishment by taxpayers), workers are left without insurance if they are hurt on the job and receive poor or no care for their injuries.

Jernigan compiled a list of the top ten employer fraud cases of 2011. The associated dollar signs are galling and here are a few of those ten that I find the most distasteful:

1) AIG: You remember those guys, don't you? They got your tax dollars in 2007's economic downturn. While your money was bailing them out, they were underpaying state insurance pools to the tune of $1 billion. They only have to pay $450 million of it back, though. So they profited from you, Citizen Taxpayer, not once but TWICE.

2) Not only did Compensation Risk Managers (CRM) act as trust administrator for 900 small businesses in New York state, they also committed $1 billion in fraud. When they were sued for underestimating the liabilities of the businesses they represented, they filed bankruptcy. The state of New York was then forced to go after the small businesses that were CRM's clients, as they'd collectively underpaid (unknown to them) over $600 million. Many of the businesses involved were shuttered as a result.

3) California residents Devon Lynn Kile and Michael Petronella are partners in marriage and in insurance fraud to the amount of $30 million. While they were busy underreporting payroll, they were also busy leading a lavish lifestyle that included costly watches and cars. The couple has been ordered to make restitution to the tune of $2.8 million, effectively netting $27 million in profit.

4) Carl Dale Fuller is a North Carolina business man who issued fake insurance certificates (and even paid a few claims) while pocketing a nice, healthy $2,716,537.

As you can see, in each of these cases a significant amount of money was bilked from states and walked away in the pockets of these criminals who not only profited, but left workers without needed coverage.
 
There is lots of talk about workers' compensation reform, but it's evident from just this small sampling of cases that it doesn't need to come from the ground up; It seems to me that the most necessary reforms involve those at the company level who would seek to defraud the workers a company is supposed to care for, protect, and provide relief to in times of work-related injury or disability. Employees aren't costing billions in taxpayer losses; companies are.

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?

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?