With the increasing focus on illegal immigration in our current political climate one issue that employers and insurers are likely to encounter is what happens to an illegal alien claimant's temporary total disability in the event of detainment by the United States Bureau of Immigrations and Customs Enforcement (ICE). With the increasing focus on illegal immigration in our current political climate one issue that employers and insurers are likely to encounter is what happens to an illegal alien claimant’s temporary total disability in the event of detainment by the United States Bureau of Immigrations and Customs Enforcement (ICE). A simple review of the news reflects increasing action to ... Continue Reading
What You Say Could Be “At Issue” – Waiver of the Attorney-Client Privilege in Bad Faith Cases
Not every communication that falls within the scope of the attorney-client privilege is entitled to protection. Not every communication that falls within the scope of the attorney-client privilege is entitled to protection. Under certain circumstances, the privilege may be considered implicitly waived when justice so requires. This is because the public policy of protecting confidential attorney-client communications must be balanced against the equally strong public interest in the proper administration of justice. State v. Doster, 276 S.C. 647, 284 S.E.2d 218 (1981). Courts have found this especially true in bad faith insurance cases which by their nature “turn heavily on what an insurer ... Continue Reading
CDC Issues New Guidelines for Opioid Prescriptions
The opioid crisis in America is frequently in the news and should be. Opioids have caused an enormous cost increase for workers’ compensation employers and insurers. Some cases are impossible to settle because a Medicare Set Aside trust (“MSA”) is required, and the cost of the MSA is $500,000 or more due primarily to the projections of opioid medications for the remainder of the claimant’s life. The Center for Disease Control (“CDC”) recently issued guidelines for prescribing opioids for chronic pain. A copy of those guidelines is attached. The CDC is attempting to effect an enormous change in how opioids are used. Here are the high points: “Opioids are ... Continue Reading
Charting a New Course for Pain Management in the Workers’ Compensation Arena
As the reverberations of the opioid crisis are being felt around the country, Chairman Frank McKay of the Georgia State Board of Workers' Compensation has vowed to address the over-prescription and abuse of these Schedule II narcotics in the workers' compensation setting. As the reverberations of the opioid crisis are being felt around the country, Chairman Frank McKay of the Georgia State Board of Workers’ Compensation has vowed to address the over-prescription and abuse of these Schedule II narcotics in the workers’ compensation setting. The Chairman recently announced that the State Board would examine and work to remedy the over-prescription of narcotics. In 2013, Georgia passed the ... Continue Reading
The Interplay Between Illegal Alien Status And Fraud Under The Workers’ Compensation Act
Illegal alien status and its role in the workers' compensation arena has always been a hot topic, but it is hotter than ever right now, at least in large part due to our current political climate. Illegal alien status and its role in the workers’ compensation arena has always been a hot topic, but it is hotter than ever right now, at least in large part due to our current political climate. Employers and insurers, rightfully so, are frustrated by the fact that many injured workers are not in the country legally. Defense attorneys are often asked whether the employer/insurer have any recourse in this scenario. A series of cases decided all in a row more than a decade ago form the ... Continue Reading
When the Misconduct is Not Foreseeable, Can the Medical Provider be Held Responsible?
Recently, there have been a slew of stories in the media highlighting instances involving sexual assault while a patient is under anesthesia or sedated. Many of these stories involve medical doctors, dentists, or anesthesiologists who committed these heinous crimes against their own patients. Recently, there have been a slew of stories in the media highlighting instances involving sexual assault while a patient is under anesthesia or sedated. Many of these stories involve medical doctors, dentists, or anesthesiologists who committed these heinous crimes against their own patients. But what about the medical providers who employ these medical professionals? Should they also be held ... Continue Reading
Making An Offer They Can Refuse, But It’s The Timing That Matters
Obtaining attorney fees from the opposing party is a desirable, but difficult task under Georgia law. Obtaining attorney fees from the opposing party is a desirable, but difficult task under Georgia law. One strategy is to use O.C.G.A. § 9-11-68 to make an offer of settlement, which nearly amounts to placing a bet on what the case is worth. O.C.G.A. § 9-11-68 was passed as part of the Tort Reform Act of 2005. If the plaintiff makes an offer of settlement that is rejected by the defendant, then the plaintiff is entitled to recover attorney fees if the final judgment is an amount greater than 125 percent of the plaintiff’s offer. Conversely, if the defendant makes an offer ... Continue Reading
The Exceptional Average Weekly Wage
The importance of accurately calculating the average weekly wage of an injured employee can hardly be overstated. It is used to determine the employee's compensation rate, and, in turn, the ultimate value of his or her claim. Introduction The importance of accurately calculating the average weekly wage of an injured employee can hardly be overstated. It is used to determine the employee’s compensation rate, and, in turn, the ultimate value of his or her claim. Despite the centrality of this calculation to virtually every workers’ compensation claim, determining the average weekly wage can, in some circumstances, be ... Continue Reading
How to Avoid Retaliation Claims from Employees
Most employers know that federal laws prohibit harassment or discrimination against employees for certain protected characteristics, such as age, race, color, sex, religion, national origin, or disability as defined by the Americans with Disabilities Act (the "ADA"). Most employers know that federal laws prohibit harassment or discrimination against employees for certain protected characteristics, such as age, race, color, sex, religion, national origin, or disability as defined by the Americans with Disabilities Act (the “ADA”). However, employers should also be aware that federal law also prohibits employers from retaliating against an employee who engages in activity protected by the ... Continue Reading
Boundaries Defined for the Doctrine of Continuous Employment
In this day and age, employees are required to lodge away from home for days and weeks at a time to be near an employer's job site or to conduct business for the employer. In this day and age, employees are required to lodge away from home for days and weeks at a time to be near an employer’s job site or to conduct business for the employer. Unfortunately, there are situations when, while travelling and lodging away from home, employees sustain injuries in locations other than an employers’ premise or place of business. In Georgia, for an injury to be compensable under the Workers’ Compensation Act, it is well established that the injury must both “arise out of” and occur “in ... Continue Reading