In March of this year (Volume 25, No. 146), we reported on a decision from the First District of the Florida Court of Appeal, which held the 104 week cap on TTD was unconstitutional In March of this year (Volume 25, No. 146), we reported on a decision from the First District of the Florida Court of Appeal, which held the 104 week cap on TTD was unconstitutional on the grounds that it denied right of access to courts. Westphal v. City of St. Petersburg, No. 1D12-3563 (2/28/13). Westphal, a firefighter, had reached the limit on entitlement to TTD, yet remained totally disabled. He was prevented from filing for permanent disability because ... Continue Reading
No Notice of Potential Litigation, No Possible Spoliation
Spoliation "is the destruction or the significant and meaningful alteration of evidence," so that the evidence is no longer available to a party in pending or future litigation. Spoliation “is the destruction or the significant and meaningful alteration of evidence,” so that the evidence is no longer available to a party in pending or future litigation. An individual or entity that causes either the intentional or unintentional spoliation of evidence is known as a spoliator. The reality is that the effects of spoliation can often be very harsh. However, the rules against spoliation do not require that individuals or ... Continue Reading
Violence In The Workplace: Random Assults And Current Application of Georgia Law
Unfortunately violence in the workplace is on the rise. A 2011 study from the U.S. Bureau of Labor Statistics found that 17% of workplace fatalities that year were the result of Unfortunately violence in the workplace is on the rise. A 2011 study from the U.S. Bureau of Labor Statistics found that 17% of workplace fatalities that year were the result of violence. While deaths and injuries from other causes are in decline due to improved safety measures, incidents of violence continue to increase. As the incidences of violence, rise, employer and insurers are regularly forced to address the compensability of injuries ... Continue Reading
The Great Windfall: Whether Insured’s In Georgia May Cover Replacement Costs Without First Repairing Or Replacing Their Property
Standard property insurance policies allow insureds to collect the actual value of their damaged or lost property. Insureds may often secure Standard property insurance policies allow insureds to collect the actual value of their damaged or lost property. Insureds may often secure additional protection through a replacement cost endorsement which provides increased coverage for the expense of replacing the property. Replacement cost coverage was designed to remedy the shortfall which often occurs when a property insurance policy only provides compensation for actual cash value (“ACV”). That is, while a policy compensating an insured for the ACV of damaged or lost ... Continue Reading
Rise Of SSDI Claims And Impact On Workers’ Compensation Claims
Since the Great Recession of 2008, there has been a spike in claims for Social Security disability income ("SSDI") benefits and unemployment Since the Great Recession of 2008, there has been a spike in claims for Social Security disability income (“SSDI”) benefits and unemployment benefits, as unemployed workers searched for alternate sources of income. Not only were injured workers filing claims for SSDI benefits for wage loss, it also provided them with an avenue for entitlement to Medicare, since a person is entitled to Medicare benefits after receiving SSDI benefits for twenty-four (24) months. Therefore, a claim for SSDI benefits can provide an injured worker with a ... Continue Reading
Look Out Below: Georgia Court Of Appeals Affirms Summary Judgement For Defendants In Two Recent Falling-Merchandise Cases
Two recent Georgia Court of Appeals decisions confirm that premises owners have at least two viable lines of defense in falling-merchandise cases. In both Two recent Georgia Court of Appeals decisions confirm that premises owners have at least two viable lines of defense in falling-merchandise cases. In both Aubain-Gray v. Hobby Lobby Stores, No. A12A1042, 2013 WL 4017362 (Ga. Ct. App. Aug. 8, 2013), and Warner v. Hobby Lobby Stores, Inc., 321 Ga. App. 121, 741 S.E.2d 270 (2013), the Court of Appeals affirmed summary judgment in favor of defendants on the plaintiffs’ falling-merchandise claims. In each case, the Court determined that ... Continue Reading
A Contractor’s Own Work: An “Occurrence” Under A CGL Policy?
Insurance adjusters and contractors need to be aware of the divergent applications of the "your work" exclusion based upon the jurisdiction in which a case is being litigated. Insurance adjusters and contractors need to be aware of the divergent applications of the "your work" exclusion based upon the jurisdiction in which a case is being litigated. This article analyzes a recent Alabama Supreme Court decision dealing with this exclusion, highlights the growing trend across the Country regarding application of the exclusion, and suggests a potential shift under Alabama ... Continue Reading
Are We There Yet?: Court REaffirms Established Doctrine Regarding Accidents Going To And Coming From Work
In a decision favorable to employers and insurers, the Georgia Court of Appeals, in the recent cases of The Medical Center, Inc. v. Hernandez et al. and Hernandez et al. In a decision favorable to employers and insurers, the Georgia Court of Appeals, in the recent cases ofThe Medical Center, Inc. v. Hernandez et al. and Hernandez et al. v. Atlanta Drywall, LLC, 319 Ga. App. 335, 734 S.E.2d 557 (2012), reaffirmed the well established rule that accidents which occur while the employee is going to or coming from work are not compensable under the Georgia Workers’ Compensation Act. While there appears to have been no dispute ... Continue Reading
Whose Right Is It Anyway? An Employer/Insurer’s Right (Or Lack Thereof) To Add Parties To A Hearing
In a typical workers' compensation claim, "Employee" is working for "Employer 1", gets hurt on the job, and requests a hearing to seek benefits from Employer 1. In a typical workers’ compensation claim, “Employee” is working for “Employer 1”, gets hurt on the job, and requests a hearing to seek benefits from Employer 1. Less frequently, we see scenarios where Employee gets hurt working for Employer 1, comes back to work, leaves Employer 1 to go work for Employer 2, and then goes back out of work again based on the same injury he sustained with Employer 1 (or an aggravation thereof). This scenario presents the classic set-up for litigation of whether Employee sustained a ... Continue Reading
The Power Of The Panel: Will Strict Compliance Be Enforced?
In any given workers' compensation claim, there is potential for a multitude of disputes over issues running the gamut from entitlement to indemnity benefits, In any given workers’ compensation claim, there is potential for a multitude of disputes over issues running the gamut from entitlement to indemnity benefits, to an injured employee’s efforts to return to work. And while there are a seemingly infinite number of variables impacting whether an employer/insurer is responsible for paying indemnity benefits, the one thing that is always certain in non-controverted cases where an employee remains injured due to a compensable work injury, is that the employer/insurer are ... Continue Reading