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Legislative News

Supreme Court of Georgia 06 Jun 2016

Today, the Supreme Court of Georgia released its decision in Roseburg Forest Products Company et al v. Barnes. The firm represented the Employer/Insurer in the case for a 1993 date of accident in which the Claimant sought recommencement of income benefits 18 years after those benefits were suspended. The Claimant contended that, because his case was accepted as catastrophic, no statute of limitations governed his application for income benefits. The administrative law judge, appellate division, and superior court all held that the OCGA 34-9-104 statute of limitations barred the claim. The Court of Appeals reversed, holding that the claim was not time barred because it had been accepted as catastrophic. The Supreme Court unanimously reversed the Court of Appeals, holding that the statute of limitations bars the claim. The case will be cited for the proposition that the OCGA 34-9-104(b) statute of limitations applies to catastrophic claims. A copy of the decision can be accessed clicking this link.

Please feel free to contact us if you have any questions regarding these changes.

Legislative Change

The Georgia legislature recently considered and passed House Bill 412, which was later signed into law by Governor Nathan Deal on May 6, 2015. The Bill affects workers' compensation claims with dates of injury on or after July 1, 2015. The legislative changes impact four (4) practice areas: (i) the exclusive remedy provision; (ii) requirements for posted panels of physicians; (iii) indemnity rates; and (iv) death benefits. Each will be considered in turn.

The Exclusive Remedy Provision:

The 2015 legislative changes strengthened the protections afforded to employers under the "exclusive remedy" provision of the Workers' Compensation Act, O.C.G.A. § 34-9-11. Under the 2015 changes, employers may now expressly agree to waive immunity from tort suits from injured employees in writing; however, the legislature clarified that the "use of contractual provisions generally relating to workplace safety, generally relating to compliance with laws or regulations, or generally relating to liability insurance requirements" could not be construed to create additional rights or remedies beyond those provided by the Workers' Compensation Act nor are such provisions sufficient to constitute the express waivers from tort suits now allowable under the Workers' Compensation Act.

Panels of Physicians:

The 2015 legislative changes eliminated the "conformed" panel of physicians previously found in O.C.G.A. § 34-9-201(b)(2). This change does not impact the traditional (six unaffiliated physicians) and/or managed care ("MCO") panel rules and requirements.

Indemnity Rates:

For all dates of accident on or after July 1, 2015, the maximum Temporary Total Disability rate increases from $525.00 to $550.00. The maximum Temporary Partial Disability rate also increases from $350.00 to $367.00. These changes are found in O.C.G.A. § 34-9-261 and O.C.G.A. § 34-9-262, respectively.

Death Benefits:

The 2015 legislative changes increased the maximum death benefit available to a sole surviving spouse of a deceased worker from $150,000.00 to $220,000.00 for all dates of accident on or after July 1, 2015. This change is found in O.C.G.A. § 34-9-265.

Please feel free to contact us if you have any questions regarding these changes.

KEEP THE POWER: Tips for Maintaining Control of Medical Treatment

By A. Alexander Adkins

When it comes to Workers' Compensation claims, there is nothing worse than finally securing a regular duty release from the authorized treating physician, only to have the claimant use their one time change of physicians on a liberal physician of his or her choosing because of a problem with the Posted Panel of Physicians. Keeping control over medical treatment can mean the difference between a physician that finds an aggravation has resolved and benefits are no longer proper, and having to pay for a three level fusion because the claimant's doctor related everything to the at-work injury.

Most adjusters know that an employer must maintain a Posted Panel of Physicians with at least six unaffiliated providers. There must be at least two orthopedic surgeons, no more than two industrial clinics, and at least one minority provider. Where most employer/insurers run into trouble is that the Workers' Compensation Act requires the employer/insurer to provide the Posted Panel of Physicians to the claimant, explain its purpose, allow the claimant to choose a provider, and assist the claimant in arranging medical treatment. If the employer/insurer cannot prove that they satisfied all these requirements, the claimant seizes control of their medical treatment. Often employers will send the claimant to a provider on the Panel without explaining the panel or allowing the claimant to choose where to go. Doing so will lead to the claimant changing physicians to the surgery-happy physician their attorney suggested, and the medical and indemnity exposure ballooning to unreasonable levels.

On the employer side, there are some simple steps you can take to "lock the Claimant into the Panel" and maintain control. First, when an employee reports an at-work injury, immediately provide them with a copy of the Panel and instruct them to read it. Then explain that the claimant can choose a provider with whom to treat for the at-work injury. When the claimant chooses a provider, make them circle their choice and initial it. Finally, take pictures of where the Panel is posted in your office to show it is posted in a conspicuous location. Most claimant's attorneys will accept the Panel as valid if the claimant circles and initials their choice, but following these steps will also provide you with evidence to use at a potential hearing on the issue.

For insurers, even if the employer did not explain the Panel and allow the claimant to chose a physician, there may be a possibility of validating the Panel and maintaining medical control. Regarding medical treatment, there is a provision in the Act allowing an employer to send the claimant for immediate treatment in an emergency. Doing so does not invalidate the Panel, and once the emergency resolves an employer/insurer can follow the steps above. In fact, if the claimant is unrepresented (as they often are at the beginning of a claim), adjusters can call the claimant, provide him with the Panel and its purpose, and allow him or her to choose a provider. Incorporating such a conversation into the claimant's recorded statement would also provide good evidence for use at hearing.

Following these steps will help in keeping control of the medical away from the Claimant; however, every situation is different. If you're in a situation and unsure of what to do, consulting an attorney is always a good idea! We hope this article will help you in the future, and feel free to contact us if you have any questions!