In the case of Ocmulgee EMT et al. v. McDuffie, S17G0038, decided 10/16/2017, the Georgia Supreme Court reversed a Court of Appeals decision that would have made employers responsible for preexisting conditions, even when the condition is not the cause of disability.

The Court of Appeals held that when an aggravation of a preexisting condition ceases, the employer must show availability of suitable employment in the workforce before suspending a claimant’s benefits.  However, the WC Act defines an “injury” to include aggravation of a preexisting condition but “only for so long as the aggravation of the preexisting continues to be the cause of the disability; the preexisting condition shall no longer meet this criteria when the aggravation ceases to be the cause of the disability …”

In this case, the claimant had received workers’ compensation benefits for several years for a compensable knee injury which he failed to disclose to the subsequent employer at the time of hiring.  The claimant eventually aggravated the preexisting condition, but two physicians eventually concluded that the aggravation had ceased and that the employee had returned to baseline for the preexisting knee injury.  The ALJ, WC Board, and Superior Court all held the employer was entitled to suspend benefits based upon the employee returning to baseline.  However, the Court of Appeals remanded the case holding that the employer must also show the availability of suitable employment in the workplace in addition to establishing that the employee had returned to baseline.  The Supreme Court reversed the Court of Appeals quoting the definition of the injury, which makes it clear that the employer is only responsible for an aggravation of a preexisting condition “for so long as the aggravation of the preexisting condition continues to be the cause of the disability.”  The statute imposes no additional obligation for suspending benefits that suitable employment is available.

This is a big win for employers and insurers.  Below is a copy of the Supreme Court decision.

$10 Million Judgment for “Rolling Stool Rolling”

All,

In an effort to keep you informed on both Georgia liability matters, and the ever increasing jury awards in Georgia, we would like to point you to a recent case that concluded in South Georgia.  A Lowndes County jury recently delivered an excessive post-apportionment award of seven million ($7,000.000.00) to a surgeon who suffered a head injury when he attempted to sit on a stool in the operating room in which he was working.  According to court filings, the middle aged physician had just completed a surgery, and was sitting down on the four-legged stool to write post-operative orders when the stool shot out from under him and he fell backward to the floor.  The physician, who had a very successful general practice and was a vascular specialist, had no recollection of the accident.  Plaintiff’s attorney claims that his client continues to suffer from seizures, cognitive and memory problems, and migraine headaches. 

The case went to trial in Lowndes County State Court on January 17, after a court-order mediation failed to resolve the dispute.  The physician sued the hospital based on the claim that the stool that injured him in the emergency room, despite the fact that he had used the same or same type chair hundreds of times before in the same or a similar setting was inappropriate for the type flooring in the operating room. Basically, the plaintiff claimed that the stool at question, despite its successful use by thousands of physicians in operating rooms around the country on a daily basis, was an unreasonable danger known to the hospital.  The key to the plaintiff’s argument was proving that the hard plastic casters on the stool at issue were not appropriate for the hard floor.  The claim was bolstered by testimony from other Georgia Medical Center staffers who had reported similar instances of people falling from the stools. South ed on carpets and soft surfaces, while softer rubber wheels are suitable for hard surfaces such as the one involved in this accident.  Expert testimony at trial, which was not overly complicated, centered on basic safety standards calling for hard casters or wheels such as those on the stool to be usnt.  The hospital’s reasonable defense, which unfortunately proved to be ineffective, was that “rolling stools roll”, and the physician “knew he had to be careful” because he had performed thousands of surgeries utilizing a rolling stool and was well acquainted with their use.

The plaintiff’s counsel cited lost wages in the area of four and a half million dollars ($4,500,000.00), and at closing asked the jury to award between that sum and thirteen million dollars ($13,000,000.00).  The defense counsel rightfully argued against any award at all.  Ultimately, the jury awarded ten million dollars ($10,000,000.00) in damages, but under Georgia’s apportionment statute, apportioned thirty percent (30%) of the liability to the physician for a final award of seven million dollars ($7,000,000.00).  The jury verdict came seven years to the day after the physician’s fall.   

Unfortunately, this is yet another example of the growing trend of out of control jury verdicts. 

Please do not hesitate to reach out to me if you have any questions or concerns about the above referenced matter or others.

Yours very truly,

William R. Johnson

There Has Been a Change to CMS’s Review of Zero-Dollar Workers’ Compensation Allocations Without Prior Notification

It has recently come to light that there have been procedural changes to the review Centers for Medicare and Medicaid Services’ (CMS) review process for Zero-Dollar Allocation Workers’ Compensation Medicare Set-Aside Arrangement (MSA) amounts, but no one was notified about the changes in advance. Vendors and claimants were confused by the sudden change in CMS procedure when Zero-Dollar Allocation MSAs claims that formerly were accepted suddenly were being denied.

CMS’s review of Zero-Dollar Allocation MSAs previously allowed for controverted claims to be considered if it included items such as the following:

• Confirmation the claim was controverted, such as filing of a WC-3 in Georgia;
• Confirmation that no medicals or indemnity was paid on the claim;
• Supported by letters from attorneys or adjusters.

The recent procedural changes imposed by the CMS’ Workers’ Compensation Review Contractor called for denial of these controverted claims unless the claim was accompanied by:

• A court order showing a denied claim, or
• Medical records indicating that there would be no more medical treatment related to the work injury that the claim was based upon.

As a result, CMS has announced that as of October 31, 2016, CMS’ Workers’ Compensation Review Contractor will be returning to the former review procedure and that no changes will be made to the Zero-Dollar Allocation MSA review process until notice is properly published so that everyone affected by the change will be officially and formally put on notice. CMS’ Workers’ Compensation Review Contractor had changed how it was reviewing these types of claims without prior notification to those who would be affected by the procedural change.

There Is Potential That Changes Are On The Way

While CMS did not expressly indicate that there were plans to change the Zero-Dollar Allocation MSA review process in the future, in light of all the confusion recently, it begs the question that claimants should be reading between the lines. It is quite possible that the changes implemented without public notice are changes that CMS will implement in the future, making approval even more difficult to obtain.

Suggestions Going Forward

Anyone who has a Zero-Dollar Allocation MSA claim submitted to CMS, or plans to submit one in the near future, needs to be mindful that this glitch in the system could affect their claim. Despite CMS’s announcement to return to the old way of reviewing Zero-Dollar Allocation MSA claims, going forward, individuals who have a Zero-Dollar Allocation MSA claim might consider taking precautions when submitting their claim by:

• Providing copies of treatment records from the treating physician in order to demonstrate to CMS that no further treatment for the worker’s injury or illness will be required in the future;
• If there is no treating physician based on a controverted claim, a possible opinion from an IME physician to medically support that no treatment is related to the alleged work injury;
• Obtaining a judicial ruling/court order once a hearing on the merits has been conducted concerning the compensability of the claim;
• Instead of submitting a claim to CMS, choosing to finalize a strict compromise settlement in accordance with CMS guidance.

Providing these extra materials is in alignment with how the Workers’ Compensation Review Contractor was processing claims.

Moore Ingram Johnson & Steele has offices in eight locations including Tennessee, Georgia, South Carolina, Kentucky and Florida with more than ninety skilled and experienced attorneys who are ready and available to help you. Please feel free to contact us.