The recent law also provides that no C-250′s may be filed after 07/01/10, for claims with dates of accident or dates of disablement prior to 07/01/07, for the purpose of seeking 15-8 relief. Regardless of the filing dates of the C-250′s, again for claims prior to 07/01/07, all written submission of evidence in support of a 15-8 claim must be filed prior to 07/01/10 for consideration by the Special Funds Conservation Committee.

The Statute also requires that all requests for reimbursement for cases with established 15-8 or 14-6 findings be submitted to the Special Funds Conservation Committee within one year from the date of the expenditure or one year from the effective date of this legislation, 03/13/07, whichever is later. The reimbursement request would be deemed waived if the employers or the carriers do not comply with this provision.

The Fund may also pay compensation and medical expenses in cases of permanent and total disability resulting from an injury to the brain or spinal cord. In the claims that pertain to total and permanent disability due to paralysis or loss of mental capacity, the Fund may cover expenses related to medical, nursing, hospital, institutional, equipment, and other treatment expenses reasonable and necessary during the life of the injured employee.

States, such as Georgia and New York, which have reimbursement funds which actually reimburse the carrier for indemnity and medical benefits made to a claimant. The employer/insurer remains the primary claims handler and must request periodic reimbursements from the fund for payments made on the claim.  These funds will also take an active role in any settlement discussions.

States which have take-over funds will pay the claimant directly once the liability has been determined. In New Jersey, for example, once the fund’s liability has been established, it can pay the claimant’s permanent and total benefits for the life of the claims.  The employer remains liable for the medical expenses.

There are many active second-injury funds in the U.S.  Since many of them have different rules and regulations, strict attention must be paid to the statutory requirements for each state.

The Subsequent Injury Trust Fund (SITF) was created to keep Georgians at work. It provides a means by which employers can feel safe in taking a risk on hiring someone who has previously suffered a work-related injury.  Any injury or furtherance of the previous injury would not affect the employers’ workers compensation insurance.

Without the SITF, there are two major problems that will arise.  First, employers will not want to hire people who have been previously injured on the job.  This is due to a reluctance to possibly take on the medical expenses of the worker.  Second, once workers understand that they cannot be hired with pre-existing injuries, they will begin to lie about their pre-existing injuries in order to be hired.  This will cause a great deal of litigation over pre-existing injuries.

Particularly considering today’s economy, I think it’s a brutal blow to Georgia’s workforce for the SITF to be shutting its doors.  I would urge everyone to consider the ramifications of the SITF sunset and take action to contact legislatures and express how important a program like the SITF is to Georgia’s future.

On July 1, 2006, the Georgia legislature closed the Subsequent Injury Trust Fund to new claims. There exists some misconception that the law now prevents any claims from being filed after June 30, 2006. However, the statute does not provide such, but instead provides that no claims shall be reimbursed for an injury occurring after June 30, 2006. Thus, any new injuries occurring on or before June 30, 2006 may still be submitted to SITF for a reimbursement agreement, in accordance with the statute and SITF rules.

Despite the fact that the SITF will be closing, the reality is that payments on accepted claims will continue to be paid by the Fund indefinitely. More importantly, all claims filed with the Fund since July 1, 1977 to present that have not been accepted by the Fund, must be perfected for acceptance or they’ll be automatically denied by the Fund on July 1, 2009.

Carriers and self-insureds will continue to pay required assessments to the SITF until June 30, 2008. Once all claims are resolved, the SITF will return any leftover funds to those assessed and complete the process of dissolving the Fund.

In recent years almost 20 states have eliminated their funds.

When settlement negotiations are initiated during the evaluation process, SITF must be notified by the employer/insurer of any and all settlement demands. The employer/insurer must submit a Settlement Authority Request in writing. The settlement authority request must include a full evaluation of the claim, including a determination of future expenses and totals paid for the medical and indemnity expenses at that time. The SITF also requires that the employer/insurer consider a Medicare Set-Aside provision. After its review, the fund will render a decision regarding the acceptability of the settlement.

If a settlement mediation conference is imminent, the fund must have complete information at least 21 days prior to the mediation date. This courtesy will allow the fund to make an informed assessment of the settlement request.

Considering that 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, a large portion of a settlement agreement may be covered by the Subsequent Injury Trust Fund rather than out of the pockets of the employer/insured.

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:

1. Epilepsy

2. Diabetes

3. Arthritis which is an obstacle or hindrance to employment or reemployment

4. Amputated foot, leg, arm or hand

5. Loss of sight of one or both eyes or a partial loss of uncorrected vision of more than 75 percent bilaterally

6. Residual disability from poliomyelitis

7. Cerebral palsy

8. Multiple sclerosis

9. Parkinson’s disease

10. Cardiovascular disorders

11. Tuberculosis

12. Mental retardation, provided the employee’s intelligence quotient (IQ) is such that he or she falls within the lowest two percent of the general population; provided, however, that it shall not be necessary for the employer to know the employee’s actual IQ or actual relative ranking in relation to the IQ of the general population.

13. Psychoneurotic disability following confinement for treatment in a recognized medical or mental institution for a period in excess of six months.

14. Hemophilia

15. Sickle cell anemia

16. Chronic osteomyelitis

17. Ankylosis of major weight bearing joints

18. Hyperinsulism

19. Muscular dystrophy

20. Total occupational loss of hearing as defined in Code Section 34-9-264

21. Compressed air sequelae

22. Ruptured intervertebral disc

23. Any permanent condition which, prior to the occurrence of the subsequent injury, constitutes a 20 percent impairment of a foot, leg, hand, or arm, or the body as a whole

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.

In order for an employer/insured to be eligible for reimbursement from the Fund, the employee’s subsequent injury must be directly caused by the prior impairment, or combine with a prior impairment to create greater employer liability for lost time benefits and medical expenses. In addition, the employee must have a preexisting impairment that the employer considered to be permanent and likely to be a hindrance to employment, and the employer must have knowledge of the prior impairment before the subsequent injury occurs. The law also contains a list of conditions which are presumed to be permanent and likely to be a hindrance to employment provided the employer can demonstrate knowledge prior to the subsequent injury.

While many states are closing their Funds similar to the Subsequent Injury Trust Fund, there are still a handful of them out there that are going strong.