Written by: Kawania James, Esq. When an injured worker is not forthcoming about his condition, it could lead to an Employer/Insurer unnecessarily paying hundreds or thousands of dollars for a work injury that has resolved or an alleged disability that never existed. Often times Employers and Insurers will utilize investigative methods, such as surveillance and social media searches, to uncover the activity of an injured worker that he elects not to disclose. One investigative method that is gaining popularity in the world of litigation is the request for information stored in wearable fitness devices. The development and use of wearable technology (i.e. smart watches, smart glasses) and fitness/activity trackers (i.e., Fitbit, Garmin) is on the rise. These devices are designed, in part, to monitor and track fitness data such as steps taken, calories burned, sleep patterns, etc. Likewise, many people use apps such as the MyFitnessPal and Runkeeper app to…       Read More

By: James G. Smith, Esq. In a decision handed down this week, the Supreme Court of Georgia issued a notable “win” for Employer/Insurers in a case that has made its way through the courts over the past several years (Ocmulgee EMC et. al. v. McDuffie). Specifically, the Court found that an employer need not show the availability of suitable employment to justify the suspension of benefits after already establishing that the Claimant’s work-related aggravation of a pre-existing condition has ceased to be the cause of the Claimant’s disability. It is also with pride that we note that attorneys Fred Hubbs and David Dix, both partners in our Atlanta office, represented the Employer/Insurer in this case. As for the facts of the case, the Claimant was hired by the Employer in 2007. He subsequently injured his right knee in 2009 and it was accepted as compensable. However, he had previously sustained…       Read More

Written by: Byron K. Lindberg, Esq. Tennessee is one of only a handful of states that does not recognize certification of workers’ compensation adjusters; but that may be about to change. On August 29, 2017, the Bureau of Workers’ Compensation held a Rulemaking Hearing discussing, among other things, a proposed Adjuster and Adjuster Entity Certification Program. The stated purpose of the proposed new rule and new program is to assure employees are treated fairly and that claims are handled appropriately and uniformly. The proposed new program garnered healthy participation and comments at the August 29, 2017 hearing. Proposed curriculum/training requirements for certification included: overview of the Tennessee Workers’ Compensation Act; general insurance principles; compensability issues; fraud; medical billing codes; medical terminology and abbreviations; cost control; available benefits; ethics. In addition, the proposal would allow adjusting entities (i.e., third party administrators, insurance companies) to become designated as certified adjusting entities through…       Read More

Written by: Rayford Taylor, Esq. The First District Court of Appeal recently considered an appeal in the case of Julio Jiminez v. UPS, Case No. 1D16-4959, involving a challenge to Section 440.12(2) Fla. Stat. (2014). That statute sets the cap on the maximum weekly compensation rate. The merits of the challenge were not addressed by the Appeals Court because the case was sent back to the Judge of Compensation Claims (“JCC”) for further development of the record. Florida appears to be the latest state to challenge the existence of a statutory cap, or limitation on the maximum amount payable as a weekly compensation rate. This challenge is similar to a recent challenge filed in Alabama challenging its version of the maximum compensation rate. That Alabama case is known as Clower v. CVS Caremark Corp. The trial judge there found the weekly maximum compensation rate of $220.00 to be unconstitutional. The…       Read More

Written by: James G. Smith, Esq. Georgia law provides special rules for determining whether a hernia injury is compensable. I have had a several hernia cases recently, and in each case, the “heavy lifting” of defending the claim undoubtedly takes place in the initial moments or discussions when the alleged hernia is reported to the employer and/or insurer. It is critical to ask the proper questions at the outset to determine whether the injury is compensable under Georgia law. For starters, the law requires states that for a hernia injury to be compensable, an injured worker must demonstrate that the hernia resulted from an accident sustained in the course and scope of his or her employment. Additionally, there are four other requirements which must also be demonstrated by the injured worker: (1) The hernia must have appeared suddenly; (2) the hernia must have been accompanied by pain; (3) the hernia…       Read More

Written by: Robert J. McCune, Esq. It is of course the plaintiff’s initial burden of proof to establish that their work-related accident caused compensable injuries. What happens when the plaintiff develops different injury claims arising from that same accident? In Parsons v. Pantry, Inc., 126 N. C. App. 540 (1997), our Court of Appeals determined that the burden was on the defendant to rebut causation as to the new injuries, where plaintiff had already established causation in a prior hearing. The reasoning was that “[t]o require plaintiff to re-prove causation each time she seeks treatment for the very injury that the Commission has previously determined to be the result of a compensable accident is unjust and violates our duty to interpret the Act in favor of injured employees.”It is of course the plaintiff’s initial burden of proof to establish that their work-related accident caused compensable injuries. What happens when the…       Read More

By: Mariel Smith, Esq. On June 20, 2017, in the case of Kendrick v. SRA Track, Inc. the Court of Appeals of Georgia held that in a case where the employee was injured in a motorcycle accident, the employer was not time-barred under OCGA. § 34-9-221(h) from controverting his claim on the ground that the accident did not arise out of or in the course of employment because the prescription card given to the employee by the employer’s insurer for pain medications was not an income benefit. The Court reasoned that under the applicable code “where compensation is being paid without an award, the right to compensation shall not be controverted except upon the grounds of change in condition or newly discovered evidence unless notice to controvert is filed within 60 days of the due date of first payment of compensation.” The court held the prescription card used to pay…       Read More

Written by: Brian Mallow, Esq. On Monday, an Alabama Circuit Court Judge issued an order, finding two provisions of the Alabama Workers’ Compensation Act unconstitutional. Judge Pat Ballard held that the state’s $220 per week cap on permanent partial disability benefits (enacted thirty years ago) fails to provide an adequate remedy to injured workers in violation of the State Constitution and fails to provide equal protection to different classes of employees under the U.S. Constitution. He also ruled that the Act’s 15% cap on contingency fees fails to afford due process of law and violates the separation of powers between the legislative and judicial branches. While only these two provisions were held unconstitutional, the Act contains a non-severability provision, so Judge Ballard’s ruling effectively nullifies the entire Alabama Workers’ Compensation Act. Recognizing the magnitude of his ruling and the effect that it will have on employees, employers, insurers, and medical…       Read More

Written by: Michael Memberg, Esq. One of the most experienced and well-respected members of the workers’ compensation community, Dr. J. Carl Sutton, recently passed away. Dr. Sutton and his orthopedic practice, Sutton Orthopaedics & Sports Medicine, served as a panel provider for countless employers on the Southside of Atlanta and across Georgia. He will certainly be missed by employers and employees alike. For now, we recommend that employers reach out to any claimants who were under his care to minimize any interruption in treatment. We also recommend that employers with Dr. Sutton or his practice on their panel take an opportunity to reach out to his practice to discuss maintaining that relationship so panels can be updated in accordance with the law.

Written by: Dale Slemons, Esq.  When an Employee has concurrent employment and it is determined that the concurrent employment is similar, the claimant may be entitled to an increase in average weekly wage and ultimately his workers compensation indemnity benefits based on the combined wages received from both employers. You should be aware of this if you have this scenario presented on one of your claims. Just working for two separate and distinct employers isn’t enough to justify the increase; however, if both employments are found to be similar in character, the increase would be warranted and you must pay the higher rate. This is true even if the second employer isn’t subject to the Workers Compensation Act. The question then becomes, What constitutes similar employment? In Georgia, we generally look to the similarities of the duties of the employee and not the business of the employers. The courts have…       Read More