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October, 2008:

23 Presumptive Medical Conditions

In order for an employer/insured to be eligible for reimbursement from the Subsequent Injury Trust Fund, the employee’s subsequent injury must be directly caused by the prior impairment. The employer must show that this prior impairment was permanent and likely to be a hindrance to employment. Any pre-existing, permanent condition qualifies. The condition may be derived from an automobile accident, personal injury, or an acquired or congenital disease.

For some medical conditions, the Fund has defined them as presumptive conditions. In other words, the employer/insured need not provide documentation to prove that these medical conditions are permanent and a hindrance to employment. Pursuant to Section 34-9-361 of the Official Code of Georgia, the presumptive medical conditions are defined as permanent and a hindrance to employment.

The 23 presumptive medical conditions in O.C.G.A. § 34-9-361 are: (more…)

What Benefits May the Employee Receive?

Employees are potentially entitled to the Five Pillars of Workers’ Compensation: (i) Temporary Total Disability; (ii) Temporary Partial Disability; (iii) Permanent Partial Disability; (iv) Medical care / treatment; and (v) Rehabilitation care and counseling.

Assuming the claim is compensable, the Employee may receive two-thirds of his (more…)

What are the Employer’s Rights and Duties?

Along with the shield against tort claims that arise out of and in the course of employment, Employers have the unique right of controlling who the injured Employee treats with after the accident. The Employer is required to post a list of physicians who the Employer has confidence will treat its Employee’s fairly. This list of often referred to as the “Panel of Physicians.”

Employer may maintain a traditional panel of physicians that shall consist of at least six (6) non-associated physicians. Employers are allowed to have more than six physicians on this panel as well. The minimum panel shall include (more…)

RLF Attorneys Attend Advanced WC Institute In St. Simons

Bryan Ramos, James Timmons, Adriana Sola Capifali and Julia Lindsey participated in the annual Advanced Workers’ Compensation Institute in St. Simons Island, Georgia. The Institute’s meetings were held from October 2 through October 4. During this time, one topic discussed was (more…)

What is Considered a Workers’ Comp Injury?

The law provides that an “injury by accident arising out of and in the course of employment” shall be considered a workers’ compensation injury. O.C.G.A. § 34-9-1(4). Hence, the Employee must show that she suffered an (i) injury by accident; that (ii) arose out of employment; AND was (iii) in the course of employment. To be successful, the Employee must meet all three prongs.

The term “injury by accident” is very broad. Essentially, the Employee must have suffered an initial physical injury that was not intentionally inflicted.

The term “arising out of employment” has been interpreted to refer to the causal relationship between the work and the resulting injury. Moreover, (more…)

Violating the Medicare Secondary Payer Act Can Hurt Insurers’ Bottom Line

Not accounting for Medicare’s interest during workers’ compensation settlements can lead to shortfalls in insurers’ bank accounts. Under the Medicare Secondary Payer Act (MSP), the Center for Medicare and Medicaid Services (CMS) has the right to seek reimbursement of medical expenses paid by Medicare, which the workers’ compensation carrier should have made. [1] The Act requires that insurers consider Medicare’s interest during claim settlement and reimburse the Center for expenses paid towards treatment of the Medicare beneficiary’s work related injury. Participants in a settlement who fail to adhere to the Act’s rules may find themselves accosted with fines and significant liens. Developing a Medicare Set-Aside allocation can protect the parties from these fines. It also gives the parties a realistic projection of the claimant’s future medical cost and provides the opportunity to base settlement negotiations on this number.

[1] 42 U.S.C. §1395y (b)(2)(B)(i)(ii)(iii)

Who is Required to Have Workers’ Compensation?

Employers are required to provide prompt medical and disability benefits to Employees for injuries sustained on the job, resulting in partial or total incapacity or death. Every employer, individual, firm, association, or corporation, regularly employing three (3) or more persons, part-time or full-time, shall provide workers’ compensation insurance coverage.

Employers subject to the workers’ compensation law must insure payment of benefits to injured workers by securing a casualty policy of insurance or by qualifying as a self-insurer.

Corporate officers and limited liability company members are considered employees of the company. Any officer or member of a limited liability company (maximum of 5) may exempt themselves from coverage by filing a Form WC-10 with their insurance company. The exemptions shall not decrease the number of employees for purposes of determining the Employer’s obligations under the Workers’ Compensation Act.

Generally, an “Employee” or “worker” includes every person, including minors, working full-time or part-time under a contract of hire, written or implied. This very broad definition is often interpreted by the common law principals of Agency. It is a long-standing principal that any doubt is to be resolved in favor of the existence of the employer/employee relationship. See, Travelers Ins. Co. v. Moates, 102 Ga. App. 778 (1960). However, the Act specifically does not recognize independent contractors as employees.

In the event that the Employer elects not to secure proper workers’ compensation insurance, the Employer shall be held responsible for compensable injuries in the same manner as an employer having coverage. In addition, the Board may assess attorneys’ fees, civil penalties and a 10% increase in compensation to the Employee.

Who, What, and How will the Georgia SITF reimburse me?

Any insurance company licensed in Georgia to issue workers’ compensation policies or self-insured employer authorized by the State Board of Workers’ Compensation is eligible to file a claim for potential reimbursement from the Subsequent Injury Trust Fund. The employer/insurer should forward a letter to the fund stating a desire to actively pursue the claim. The fund requires medical documentation of the prior and subsequent injuries and, where indicated, investigative reports supporting compensability. In addition, the fund requires the statement of merger.

The employer/insurer files a claim for reimbursement directly with the fund. The Fund investigates the claim to determine eligibility for reimbursement. When a reimbursement agreement is reached between the Fund and the employer or insurer, it must be approved by the Sate Board of Workers’ Compensation. If an agreement cannot be reached, either party may request a mediation conference or a hearing with the State Board of Workers’ Compensation.

Employers/insurers may be reimbursed for all weekly income benefits payable after 104 weeks, for 50% of all medical and rehabilitation expenses between $5,000 and $10,000, and for 100% of all medical and rehabilitation expenses in excess of $10,000. If the subsequent injury was not caused by or related to a prior impairment, the reimbursement for medical expenses may be reduced or denied completely.

Do I Have to Go to My Appointment?

The Workers’ Compensation Act provides that an employer must provide medical care to an injured worker which is likely to “effect a cure, give relief, or restore the employee to suitable employment.” O.C.G.A. 34-9-200(a).

While providing medical benefits to the employee for a work-related injury, the employer may request examinations for the employee “at reasonable times.” This means that the employee may receive numerous notices the various appointments have been set up. These appointments can, at times seem quite inconvenient. At times the employee may not wish to appear for all of the scheduled appointments.

Failure to appear for an appointment or to cooperate with an examination can have some serious consequences. The employer, upon learning that an employee has failed to appear for an appointment can petition the Court to have the employee’s benefits suspended until such time as the employee ceases refusal of the treatment. If the Court grants the petition, the employee cannot recover any missed payments during the period of refusal of treatment. Therefore, as inconvenient as it may be, it is almost always a good idea to appear for and cooperate with any medical treatment scheduled by the employer.

Can I Afford An Attorney to Represent Me in My WC Claim?

Many injured workers are concerned about how their attorney will get paid. In the field of workers’ compensation, claimant’s attorneys are generally paid on a contingency basis. The contingency fee structure ensures that injured workers, who do not have money to retain an attorney at the inception of a claim, are able to obtain legal representation. The attorney is paid only when the injured worker wins the case. In the event the injured worker loses the case for compensation, the attorney will generally not collect a fee.

The Georgia Workers’ Compensation Act regulates the contingency fee an attorney can charge an injured worker. O.C.G.A. § 34-9-108(a) limits the percentage an attorney is permitted to charge to no more than 25% of weekly benefits or 25% of the final settlement amount.