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

Written by: Dale E. Slemons, Esq. As you know, one of the most important avenues to control the medical costs and overall exposure of your workers’ compensation claims is to utilize the control given to Employers by O.C.G.A. 34-9-201, which requires that the Employer maintain a valid Panel of Physicians. As you may know the statute requires that you list at least six physicians or professional associations or corporations of physician who are reasonably accessible to the Employee, among other additional requirements. While we recommend periodic verification of your Panel providers be part of your routine, we also like to inform you when information is obtained that may invalidate your Panels. In that regard, we wanted to take this time to let you know that Dr. Michael Kalson, of Academy Orthopedics, LLC has retired. If you have Dr. Kalson listed individually on your Panel of Physicians, you may want/need to…       Read More

Written by: Brian Mallow, Esq. In a major victory for employers/insurers, the Georgia Supreme Court today reversed a Court of Appeals decision that significantly limited the application of the “willful misconduct” defense in Georgia workers’ compensation cases. The case involved a cell tower technician, Adrian Burdette, who was seriously injured while attempting a controlled descent (similar to repelling) from a cell tower. Prior to beginning his shift, Burdette’s supervisor instructed the entire work crew to climb down the tower and not to use the controlled descent method. Then at the end of the shift, the crew’s team leader explicitly instructed Burdette multiple times to climb down the tower, but Burdette refused and insisted that he would use the controlled descent method instead. Shortly after Burdette began his controlled descent, he fell and sustained serious injuries. Burdette filed a claim for workers’ compensation benefits. A hearing was held before an ALJ,…       Read More

By: Michael Memberg, Esq. The Georgia Workers’ Compensation Act provides that no compensation shall be allowed for an injury caused by an employee’s willful misconduct, including the willful failure or refusal to use a safety appliance or perform a duty required by statute. On paper, the law reads like an employee has to diligently follow every safety policy, regulation, or law on the books or face a denied claim. However, Georgia law does not hold an employee’s negligence against him, no matter how gross. Furthermore, as the saying goes, “stupidity is no defense.” As a result, courts have time and again found that mere violations of safety policies, or even statutory violations like speeding, do not qualify as “willful misconduct” that would bar a claim. By that same token, there is a question whether texting while driving is “willful misconduct” contemplated by the statute, although we would certainly argue that…       Read More

Written By: Lauren K. Dimitri, Esq. In July of this year, the Appellate Division of the State Board of Workers’ Compensation rendered a decision on surveillance that has created quite the buzz in the Comp community. The Employee in State Board of Appeal #2013024225 appealed the administrative law judge’s order which granted the Employer’s motion for a protective order seeking protection of surveillance video that was taken of the Employee by an investigator hired by the Employer. The Employee argued that the administrative law judge abused his discretion in denying her motion to compel discovery of the video, while the Employer stood by its position that the video was protected from discovery as being prepared in anticipation of litigation. The specific discovery request at issue asked for the identities of persons having knowledge relevant to the claim, whether the Employer had conducted surveillance of the Employee and, if so, the…       Read More

Written by: David S. Dix, Esq. For many employers in Georgia, Workers’ Compensation is simply fact of life and a cost of doing business.  However, for smaller businesses with fewer employees, Workers’ Compensation may not be a foregone conclusion.  Not all employers are subject to the Workers’ Compensation Act, and not are required to carry workers’ compensation insurance. The Workers’ Compensation Act itself does not apply to employers that have “regularly in service less than three employees in the same business…unless such employees and employers voluntarily elect to be bound.” O.C.G.A. §34-9-2(a).  In other words, for a small enough business, workers’ compensation does not apply unless the employer and employees elect to opt into the system. However, if you think the act does not apply to your business, the recent Court of Appeals decision in Wills d/b/a/ Wills Construction v Clay County et al. Court of Appeals Case No. A16A1328…       Read More

Written by: Brian Mallow, Esq. Last week, in a 7-2 decision, the Oklahoma Supreme Court struck down the Oklahoma Employee Injury Benefit Act, otherwise known as the “Opt-Out Act,” holding that the Act is unconstitutional under the state’s constitution. The case, Vasquez v. Dillard’s, Inc., has been closely watched since the Oklahoma Workers’ Compensation Commission first declared the statute unconstitutional last fall. Oklahoma is one of two states with legislation that allows employers to “opt out” of the traditional workers’ compensation system and instead create their own plan. Texas has allowed employers (and employees) to opt out since its inception over a century ago. Oklahoma’s legislation was passed in 2013, and over the past few years, similar opt-out legislation has been considered in several other states, primarily in the southeast. Proponents of opt-out legislation cite lower costs, more control, and better outcomes for employees. Opponents question the effectiveness of medical…       Read More

Written by: Dale Slemons, Esq. Summer is slowly winding down and those fun filled, company sponsored, summer softball teams are gearing up for the playoffs, including our very own HBS “Devil Goats”. Good luck Goats!!! While most company softball teams play for exercise, fun and the occasional adult beverage after the hard fought game, during playoff time the competition can get more intense and is more likely to result in injuries. Regardless of the intensity of the competition or the level of play, sports injuries are inevitable given the number of participants in afterhours recreational teams, be it softball, bowling or badminton. As these injuries inevitably  occur, employers need to be aware of the way that the law is interpreted in Georgia or whatever jurisdiction they may be subject to. In Crowe, 145 Ga. App. 873 (1978) and it’s progeny, the Employee/Claimant had sustained a serious injury to his collar bone during…       Read More