Workers’ Compensation Law Institute Seminar and Barnes v. Roseburg Forest Products Co.

12109045_897856496967582_5671218216087076050_nOn October 23, 2015, I had the distinct honor of speaking on the topic of “Significant Workers’ Compensation Decisions from the Court of Appeals and the Supreme Court of Georgia with Aarati Subramaniam of Drew Eckl and Farnham in Atlanta, and the Honorable William Cain, Administrative Law Judge with the Georgia State Board of Workers’ Compensation, at ICLE’s Workers’ Compensation Law Institute seminar in St. Simons Island, Georgia. Topics included the 2-year change of condition statute of limitations, ingress/egess, cardiac injury claims, attorney fee liens, statutes of limitations in catastrophic injury claims, and subrogation liens against third party tortfeasors.

All of the cases we discussed were interesting, but of primary importance to injured workers is the Barnes v. Roseburg 12072623_897856603634238_6642909177163081874_nForest Products Co. case, 2015 Ga. App. LEXIS 486 (Ga. App. 2015).    I will discuss that case further, because I believe it has significant implications for the public and my clients.

In 1993, Willie Barnes sustained a catastrophic injury when he fell through a wood floor and landed in an auger, causing immediate amputation of his left leg below the knee.  He received temporary total disability benefits from the employer and insurer until 1994, when he returned to work as a supervisor. He then began collecting permanent partial disability benefits until 1998.   The Claimant continued to work for the Employer until he was terminated as part of a company-wide layoff in 2009.   At that time, he contacted a representative of the Insurer, and was told he was not entitled to further income benefits.

In 2012, Mr. Barnes filed a request for recommencement of temporary total disability benefits based on a change-in-condition for the worse and also asserted a fictional new accident based on his termination date. The State Board of Workers’ Compensation found that the change-in-condition claim was barred since it had been eleven years since the last payment of benefits.   The State Board also found the “fictional new injury” was time-barred since it had been more than one year since the date Mr. Barnes was laid off.

The Court of Appeals reversed. The Court found that the Workers’ Compensation Act did not contemplate a scenario under which a catastrophically-injured claimant would receive benefits, return to work, and subsequently seek to reinstate benefits more than two years after last receiving payment. The Court also concluded that since catastrophic claims are not subject to the 400-week cap on benefits, the Georgia State Legislature intended to differentiate catastrophic from non-catastrophic injuries. The Court reasoned that the two-year statute of limitations on requests for resumption of benefits is inapplicable to a catastrophic claim, so long as the claim remains designated catastrophic.

With respect to the one-year statute of limitations pertaining to the fictional new injury, the Court found that the Employer/Insurer had provided remedial medical treatment in December, 2011, by authorizing a prosthetic leg. Thus, the claim for a fictional new injury filed in November, 2012 was not time-barred.  The case is now pending on appeal to the Supreme Court of Georgia.

What is a “fictional new injury?”

A “fictional new injury” occurs when an employee returns to work, but due to the gradual worsening of his condition due to the work he is performing, he is eventually forced to stop working.  The first day the claimant misses work is a “fictional new injury” date.  The purpose of this rule is to allow an injured worker to return to work without being punished by the statute of limitations for change of condition claims, which will be discussed below.  There are technical requirements under the law for establishing a fictional new injury.

What is a “change of condition?”

A “change of condition” occurs when the employee receives income benefits or otherwise has his claim established as compensable, but due to the gradual worsening of his condition in his ordinary life, he is eventually forced to stop working.  A “change of condition” is distinguished from a “fictional new injury” in that the change of condition does not require the work to be a contributing factor to the worsening of the claimant’s condition, whereas a fictional new injury does.

What are the statutes of limitations in workers’ compensation claims?

In a so-called “all issues” case, where the employer does not admit liability and has never paid income benefits, the statute of limitations requires that your claim be filed within one year of the date of injury, or within one year of last remedial medical treatment. The latter exception explains why the Court of Appeals found the “fictional new injury” claim was not time-barred — the claim was filed within 1 year of the claimant receiving remedial medical treatment that was paid for by the employer.  A change of condition claim must be filed within two years of the last payment of temporary total or temporary partial disability benefits.

Why is this case important?

So-called “catastrophic injuries” in Georgia, which are not subject to the 400 week cap on income benefits, are almost always brought under the “catch-all” subsection, O.C.G.A. § 34-9-200.1 (g)(6).  This section deals primarily with an employee’s inability to work, such that in order to prove the case is catastrophic, the claimant has to also prove he cannot work.  However, the other provisions of subsection (g) allow catastrophic designation for spinal cord injury involving severe paralysis of an arm, a leg or the trunk, amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage, severe brain or closed head injury, second or third degree burns over 25 percent of the body as a whole or third degree burns to 5 percent or more of the face or hands, and total or industrial blindness.  These subsections do not require the injured worker to prove he cannot work – the claim is catastrophic simply because the injured worker meets the condition listed.  Because these provisions are so rarely used, and because when they are, it is unusual for the employee to return to work because of the severity of the injury, the Workers’ Compensation Act does not really contemplate how to handle them relative to the statutes of limitation.  A few concerns are present with this case in particular. Among them are these:

  1. If Mr. Barnes’ claim is barred by the 2-year statute of limitations and the 1-year statute of limitations, then it is undeniable that Mr. Barnes has been punished by the law for doing what every employee ought to be encouraged to do – returning to work.  Further, his termination was through no fault of his own, but due to the employer deciding to lay him off.  He is now left with a severe injury involving amputation of his leg, and is certainly less employable than he was before the injury.
  2. If Mr. Barnes’ claim is barred by the 2-year statute of limitations but not the 1-year statute, such that Mr. Barnes may still assert a fictional new injury, several concerns are present.  Does Mr. Barnes have to re-assert a catastrophic injury claim for the new date of injury?  If he cannot show the new injury is catastrophic, is he limited to 400 weeks of additional benefits even though his case was already catastrophic before he went out of work? Regardless, will his medical benefits be paid under the old, catastrophic date of injury, or does the employer also get to pay benefits under the new date of injury, which would potentially implicate the 400 week cap on medical benefits?
  3. Is Mr. Barnes still entitled to rehabilitation benefits and other “catastrophic-only” benefits under the old date of injury if he has a fictional new date of injury?

I should state at this point that this is a very hard case.  The law is unclear as to the interplay between catastrophic injuries due to paralysis, amputation, severe brain injury, severe burns, or blindness on the one hand, and the 2-year change of condition statute and the fictional new injury doctrine allowing further recovery of income benefits for injured workers on the other hand. The State Board’s decision was an attempt to apply the law to the facts of this case, inequitable as the law may be.  The Court of Appeals decision was an attempt to render the law as the legislature clearly intended it to be rendered.  The Supreme Court will have to decide who is right and who is wrong.  But make no mistake, if the Supreme Court finds that the law is as the Board found, then the law is inequitable and has failed Mr. Barnes in the worst possible way. We remain hopeful the Supreme Court will uphold the decision of the Court of Appeals and bring justice to Mr. Barnes.  If it does not, then the legislature needs to fix this problem immediately.

The Workers’ Compensation Act is designed to protect injured workers, especially when they do the right thing and return to work. The employer and insurer in this case have taken the position that even where this occurs, or perhaps especially where this occurs, no further income benefits are due to the employee if he is later unable to work.  If the employer and insurer in this case are correct, then Mr. Barnes is being punished for doing what the law ought to encourage every injured worker to do.  Allow me, perhaps imprudently, to quote Charles Dickens:

“If the law supposes that…the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience.”

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NPR: Injured Workers Suffer as ‘Reforms’ Limit Workers’ Compensation Benefits

NPR: Injured Workers Suffer as ‘Reforms’ Limit Workers’ Compensation Benefits

From the article:

“ProPublica analyzed reams of insurance industry data, studied arcane state laws and obtained often confidential medical and court records to provide an unprecedented look at the unwinding of workers’ comp laws across the country.

Among the findings:

  • Since 2003, legislators in 33 states have passed workers’ comp laws that reduce benefits or make it more difficult for those with certain injuries and diseases to qualify for them. Florida has cut benefits to its most severely disabled workers by 65 percent since 1994.
  • Where a worker gets hurt matters. Because each state has developed its own system, an amputated arm can literally be worth two or three times as much on one side of a state line as on the other. The maximum compensation for the loss of an eye is $27,280 in Alabama, but $261,525 in Pennsylvania.
  • Many states have not only shrunk the payments to injured workers; they’ve also cut them off after an arbitrary time limit — even if workers haven’t recovered. After John Coffell hurt his back at an Oklahoma tire plant last year, his wages dropped so dramatically that he and his family were evicted from their home.
  • Employers and insurers increasingly control medical decisions, such as whether an injured worker needs surgery. In 37 states, workers can’t pick their own doctor or are restricted to a list provided by their employers.
  • In California, insurers can now reopen old cases and deny medical care based on the opinions of doctors who never see the patient and don’t even have to be licensed in the state. Joel Ramirez, who was paralyzed in a warehouse accident, had his home health aide taken away, leaving him to sit in his own feces for up to eight hours.

The scope of the changes, and the extent to which taxpayers are paying the costs of workplace accidents, have attracted almost no national attention, in part because the federal government stopped monitoring state workers’ comp laws more than a decade ago.

The cuts have gone so deep in some states that judges who hear workers’ comp cases, top defense attorneys for companies and even the father of the modern workers’ comp system say they are inhumane.”

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When should I settle my workers’ compensation claim?

I recently met with a client who had no intention of hiring an attorney until it was suggested by the insurer that he settle his claim.  He was still recovering from his injury, and in fact had not yet had the stitches removed.  It was obvious to me speaking to him on the phone that it would be drastically premature to settle the claim.

I believe that what prompted the settlement talk was that his permanent partial disability (PPD) rating for his injury was extraordinarily high.  In all likelihood, the claims handler felt that with a high PPD rating, she could throw a large number at him and he would settle the claim.  He was wise enough to know that he needed to know all of his rights before agreeing to extinguish any further recovery, but some aren’t so fortunate.  In this case, my client will need medical treatment for a very long time, and he is currently being paid temporary total disability (TTD) at the maximum compensation rate.  It is highly unlikely he will return to work in his prior job, since he is per se disqualified from that work due to his injury.  He cannot meet the licensing requirements of his former job.  In his particular case, any settlement offer would almost certainly be a third or less what his case is actually worth.  This is true even if his claim is non-catastrophic.  If the claim is designated catastrophic, the value of the claim is much higher (and therefore the relative value of any settlement is much lower).

There are a few signposts in a workers’ compensation claim that may indicate that your claim is ripe for settlement.

1.  You have reached maximum medical improvement (MMI):

If your doctor believes you have reached MMI, this is an indication that your current course of treatment has improved your condition as much as is reasonably expected.  Any further medical treatment would be expected to maintain the current condition rather than improve it, or provide pain relief or other palliative treatment.  When you are at MMI, your doctor reasonably believes you are “as good as you are going to get.”  In this case, a reasonable estimate of future medical expenses may be done, and your case can be settled without worrying as much about whether you will need a future surgery, or whether an additional course of treatment may improve your condition significantly.

2.  You have been released to work full duty with no restrictions, or with restrictions that indicate that you can return to a job you are actually capable of performing.

In the case I reference above, the client has been released to return to work, but his restrictions will not actually enable him to perform any job for which he is qualified.  That may change in the future, but for now, he is completely unable to work as a result of his work injury.  Combined with the fact that he is not yet at MMI, settling his case now could end up being very costly for him in the future.

Workers’ compensation is a compromise system to begin with.  Injured workers do not have to prove their work injury was caused by the negligence of the employer or any third party in order to recover benefits, and so their work injuries, barring certain exceptions, are usually compensable.  In exchange for this benefit, employers do not have to pay for the full measure of damages that might be recoverable if the same claim was brought against a negligent third party.  The end result of this is that workers’ compensation claimants who are seriously injured rarely recover sufficient benefits to render them whole.  It is likely they will have to pursue other benefits, such as Social Security Disability and Medicare or Medicaid, in order to make ends meet in the future.  Nearly every injured worker that comes into my office says something like “I’m not looking to get rich off of this injury.”  My usual response is “good, because you won’t.”  The simple fact is that workers’ compensation claims are nothing like personal injury claims, and it is rare that a severely injured worker ever recovers sufficient monetary compensation to make up for the lost wages, medical costs and diminished capacity the worker has suffered.

Why is this important when evaluating a return to work note from your treating physician?  Because if you have been released to return to work, but you are unable to actually find and do work, you will not be able to survive long on a settlement that assumes you are able to find and do work.  Even if you recover a couple of years’ worth of wage benefits and some expected future medical costs, and even if you have a significant PPD rating, you are unlikely to be able to survive on what you recover for very long if you cannot work.  Because the workers’ compensation system is designed to rapidly treat injured workers and, in the words of the Workers’ Compensation Act, “effect a cure, give relief, or restore the employee to suitable employment,” (O.C.G.A. § 34-9-200(a), its benefits are similarly designed to achieve those ends.

The Act contemplates the possibility of a catastrophic injury, which in part covers situations where the injured worker is never expected to return to any kind of work.  But if a settlement is being offered early, it is highly unlikely that it is a settlement that contemplates a catastrophic injury.  In fact, it is very likely that any settlement offered is being offered precisely to avoid catastrophic exposure.  If you have not been released to return to work doing a job you can actually find and do, your case is likely not ready to settle.

3.  Your injury is catastrophic, and has been designated as such either by agreement or Award.

In the event of a catastrophic injury, the employer and insurer have agreed (or a Judge has ordered) that you are entitled to medical benefits for the rest of your life, and TTD benefits at least until the age of retirement under the Social Security Act, and possibly for the rest of your life.  With catastrophic injuries, there are a couple of things to be aware of in order to ensure you receive fair value for your settlement.

A.  Rehabilitation benefits.

In the event your claim is designated catastrophic, you may be entitled to certain rehabilitation benefits.  This can be as complex as formal in-home care, vehicle modifications or home modifications, or as simple as help cleaning around the house or doing yard work.  It is important to ensure that any benefits reasonably expected are accounted for in the settlement.

B.  PPD rating.

A PPD rating is not due until such time as entitlement to temporary total or temporary partial benefits ceases.  In the case of a catastrophic injury, the employer and insurer are likely to argue that they get a presumption that the claim is no longer catastrophic at retirement age.  This presumption is codified in the statute, but it is a rebuttable presumption, and therefore not ironclad.  Even if your claim is designated as non-catastrophic at retirement age due to the presumption, you will be entitled to a PPD rating for each of your injuries on that date.  It is imperative to include this calculation when discussing settlement of a catastrophic claim, as it can often significantly bridge the gap between TTD benefits to retirement age and lifetime TTD benefits.

C.  Beware of Medicare

In catastrophic cases, injured workers frequently end up on Social Security Disability as a result of their work injury, and therefore become Medicare eligible.  While SSDI benefits are typically offset to account for workers’ compensation income benefits, Medicare benefits are not.  With Medicare, medical benefits are made through what is called a “conditional payment,” meaning Medicare will cover the expense of the treatment, but they will also expect to be paid back if the claim is ever settled.  Usually, the workers’ compensation insurer pays for medical treatment, but in the event a portion of the treatment is denied or otherwise not paid, there may be conditional payments for which Medicare will expect reimbursement.  You will want to deal with this before settling, not after, as conditional payments can significantly reduce the value of your settlement, and can usually be dealt with in advance of settlement if there is a dispute over who owes them.

In addition, Medicare eligible claimants usually must do a “Medicare Set Aside” agreement, where a portion of the settlement is “set aside” to cover expected Medicare-covered expenses arising out of the work injury.  If this is not done, Medicare may come back against you for not protecting their interests in the settlement.  Since the penalty for not protecting Medicare’s interests can be severe, it is best to ensure that all reasonable steps are taken to satisfy the Center for Medicare Services.  This would include having the Center for Medicare Services approve any proposed Medicare Set Aside agreement.

Conclusion

Settling a workers’ compensation case is a serious matter.  In a lump sum settlement, you are not simply receiving money for your injury, but you are also foreclosing the right to get any future money or, typically, future medical benefits for the injury (it is possible to settle a workers’ compensation claim with “open medical,” but this is unusual).  Know your rights before you agree to settle your claim to ensure you are making a good decision.

I will be speaking at the 6th Annual Workers’ Compensation Law and Practice seminar on May 29, 2014.  My topic will be Settlements and Return to Work Issues.

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Repetitive or cumulative injury and workers’ compensation

In certain jobs, particularly heavy labor jobs, the cumulative effects of working can result in injury to the employee.  Many employees assume their work did not cause their injury simply because they did not suffer an identifiable traumatic accident on a particular date.  However, the Georgia Court of Appeals has held that “[c]umulative trauma over time, which does not lend itself to identifying a specific incident or date as the onset of the injury, nevertheless may be found to be an injury under [the Workers Compensation Act].”  DW Adcock, MD, PC v. Adcock, 572 S.E.2d 45, 257 Ga. App. 700 (Ga. App., 2002).

The importance of this rule cannot be overstated.  Often, when an employee is injured at work through cumulative trauma or repetitive motion, the employee is encouraged to use private health insurance to cover medical bills, and if available, short-term or long-term disability insurance to cover lost wages.  The former results in out-of-pocket expenses such as co-payments on medical visits, testing, hospital stays and medication.  The latter often has vastly different, and usually lower, standards for when an employee’s disability payments may be terminated, if it is available at all.  Worse, if an employee is terminated (for example, for exceeding available leave under the Family Medical Leave Act), they often have to pay for the private health insurance themselves under COBRA.  This can create a substantial financial hardship on employees and their families.  Remedies available for wrongful termination of disability insurance are neither as easily resolved nor often as clearly provable as entitlement to workers’ compensation benefits.

Many employees do not pursue a workers’ compensation action in such cases because they are concerned about being fired for reporting a work injury, or because they simply do not know such injuries are compensable under the Workers’ Compensation Act.  Others do not wish to receive a windfall for being injured.  There are unfortunately few remedies under Georgia law for an employer terminating an employee for filing a workers’ compensation claim, however, there are advantages to the employee under the Workers’ Compensation Act in such cases.  For example, an employer who terminates an employee because of his work injury must pay the employee wage benefits without the employee having to prove he is otherwise unable to work, for example by performing a diligent job search.  And because workers’ compensation is a compromise system where the employer gives up the right to contest liability for work injuries in exchange for the employee losing the right to recover for non-economic damages such as pain and suffering or wrongful death, there is no windfall to be had in a workers’ compensation case.  The workers’ compensation system is set up to benefit both employers and employees by ensuring employers do not suffer devastating financial liability for injuries to their employees, and employees do not suffer devastating financial loss when they are hurt on the job.  Contrary to some employees’ concerns about receiving a windfall for being injured, the truth is that allowing the employer to retain the benefit of the workers’ compensation system (limitations on the types of damages that are recoverable) without living up to their responsibilities under the Act (paying valid claims to employees) results in a windfall to the employer.

Knowing your rights under the Georgia Workers’ Compensation Act, and the purposes of the workers’ compensation system, will allow you to better withstand the financial and physical hardships of a cumulative work injury.

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Introductions

I am attorney David Garner, and I am pleased to announce my new practice in Dallas, Georgia.  I have over 15 years of experience representing injured workers and victims of negligence in workers’ compensation and personal injury claims, and for the last 8 years of practice, representing employers and insurers in workers’ compensation claims at a large midtown defense firm.  My current practice will focus on representing injured workers in West Georgia before the State Board of Workers’ Compensation.  My office is located on Main Street in downtown Dallas near the old courthouse.

I am a Georgia native, born and raised in Powder Springs, Georgia, and a graduate of McEachern High School and Kennesaw State University.  I went to law school at Mississippi College School of Law, where I was an associate editor of the Mississippi College Law Review and a pupil member of the Charles Clark Inns of Court.  I returned to Georgia after practicing in Mississippi for over 7 years to be closer to my family.    My wife, Stephanie, and I have been married for 18 years, and we have three daughters.

Future posts will highlight issues that arise in Georgia workers’ compensation cases, news that is pertinent to such cases, and answer questions you may have regarding work injuries in Georgia.  I look forward to representing the people of West Georgia and assisting injured workers with navigating the intricacies of the workers’ compensation claims process.  Thank you for reading, and please feel free to send any questions you would like to see addressed here to david@garnerlawofficepc.com.

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