Category Archives: Workers’ Compensation Litigation

If my job fires me because I was hurt at work, can I get TTD (temporary total disability)?

While an employer in Georgia can fire you after a workers’ comp claim, my firm has seen it, (or even because of it) without giving rise to a wrongful termination suit under any type of state law, it can mean you get workers’ compensation disability benefits without being required to look for work, as one would normally have to do if fired while working on light duty (if the termination is for cause).

That said, proving you were fired because of your workplace injury can be difficult, as many people have no qualms about making up a reason other than your job injury when asked about a termination in court!  In a case decided in March 2015 called Burns v. State of Georgia DOAS, the court found that when an employer refuses to accommodate light duty restrictions or if that employer refuses to allow someone to return to his/her job after a workplace accident (even if accommodation due to restrictions isn’t required), the injured worker can establish a change of condition and get weekly disability benefits through workers’ comp without the requirement to show a diligent but unsuccessful search for work.

This decision helped to clarify the Padgett v. Waffle House case from 1998 and the Maloney v. Gordon County Farms case from 1995 regarding injured workers who are on restrictions and let go from their employment.

Can a workers’ comp appellate court reinterpret the facts of my case?

Most of the time, if a case is being heard on appeal, that court is looking for mistakes made in application of the law (or in the law itself, if it’s an appellate court that’s allowed to make such a ruling), but the first level of appeals for a workers’ compensation case in Georgia can actually change the Administrative Law Judge’s findings of fact from the original workers’ comp hearing.  This is despite the fact that such a review board will not have had the benefit of personally hearing the claimant’s or other witnesses’ testimony in live court (but will rather be reading it in a transcript).  However, that’s how we’re set up in GA.

A fairly recent decision (issued in February 2015) reiterated this in a case involving a nurse with multiple shoulder injuries (something I see all the time in my workers comp practice) titled Emory University v. Duval.  While the nurse won at the lower court, the Appellate Division of the State Board of Workers’ Compensation (commonly referred to as “the board” or the “full board”) reversed it, using an opinion from a doctor chosen and paid for by the insurer to review the treating doctor’s medical records (this doctor, as expected, said the injury/injuries were unrelated to work).

The Superior Court reversed the Appellate Division, but the Georgia Court of Appeals reversed again, finding that the Appellate Division can cancel or annul the original judge’s findings of fact and conclusions of law if it believes these findings not to be supported by a preponderance (a majority) of the evidence. So, the injured nurse was denied her workers’ comp benefits, and the authority of the Appellate Division to substitute its factual findings for an administrative law judge’s was solidified.

2013’s Top Cases of Workers’ Comp Fraud

Workers’ comp fraud: the phrase conjures images of employees playing hooky and pretending to suffer from crippling injuries sustained at work, all while cashing in a nice, big check from their innocent and well-meaning employers. Right?

Wrong. According to a list compiled by Professor Leonard T. Jernigan, Jr., 49 of 50 fraudulent workers’ comp cases in the past 5 years were actually the result of an employer’s wrongdoing. Take a look at five of the top ten cases of workers’ comp fraud in 2013, and see for yourself.

Case Number 1: Owners of a Miami-Dade supermarket chain almost get away with $35 million in fraudulent workers’ comp-related transactions.

The proud owners of Diaz Supermarkets, John and Mercedes Diaz, were arrested and accused of $35 million of workers’ comp fraud (among other illegal and fraudulent transactions), including, failure to provide coverage for employees for ten years.

Case Number 2: A California labor contractor learns that a business by any other name is still the same business.

Richard Escamilla, Jr. accrued $4.1 million by creating new business names and filing for insurance, thus avoiding the need to provide a claim history. Mr. Escamilla will serve up to 6 years in prison, and must find a way to repay the $4.1 million that he now owes California workers’ comp insurance carriers.

Case Number 3: Michigan-based insurance executive charged with embezzling $2.6 million from workers’ compensation TPA.

Former CEO Jerry Stage and employee John Bauer found themselves in a tight spot last June. After the two were caught embezzling money from the Compensation Advisory Organization of Michigan—which they’d been doing for 10 years—they’ve been asked to repay all $2.6 million. Did we mention that both Stage and Bauer were employed by a non-profit workers’ comp insurance company?

Case Number 4: A father and son landscaping business in California turns out to be a lot less wholesome than it seems.

Father-son team Jesse and Carlos Contreras were accused of committing $1.45 in insurance fraud. From January 2008 to March 2012, the two “misclassified” their employees, defrauding the California State Compensation Insurance Fund and earning themselves up to 19 years in prison—each.

Case Number 5: A California cleaning company sweeps payroll under the rug.

The president of Awesome Products, a cleaning company based out of California, was found guilty of underreporting his total payroll by $8 million. (That’s quite a rounding error.) His mathematical sleight of hand resulted in a premium loss of $898,000.

If you have legal questions or concerns, contact Atlanta workers’ comp attorney Michael Moebes at (404) 354-5432, or visit him online at www.atlanta-workers-comp.com.

Can workers’ comp claim investigators use my Facebook feed as evidence?

keyboardIn the midst of a workers’ comp case, most insurance companies will use whatever they can get their hands on to protect their assets—including social media. Although a legal precedent has not been set, some courts have allowed the use of photos and personal information posted to social media sites as evidence for a plaintiff’s condition, or what they perceive as the lack thereof.

In the past, Supreme Court judges have openly reminded defense attorneys that asking for evidence, such as access to a plaintiff’s social media accounts, doesn’t guarantee access to that information. In order to request and receive such evidence, eager defense attorneys not only need to explain why they need the information, but also prove that it can’t be gained via the usual means, such as interrogatories and depositions.

Even though it seems that most workers’ comp plaintiffs’ Facebook feeds are safe from the prying eyes of suspicious defense attorneys, it pays to be prudent about what you choose to share with the public. Here are a few basic tips for maintaining both your privacy and the integrity of your workers’ comp case:

When in doubt, don’t.

If you are involved in any kind of workers’ comp case, don’t talk about it on Facebook, Twitter, Google+, or your blog. If you have to ask yourself, “Should I post this?” then the answer is probably a resounding “No!”

Be proactive about your privacy.

If you don’t want anyone stumbling upon what could be perceived as compromising images or information about you, be smart about your social media privacy settings. Lock down your Facebook page, privatize your Twitter account, and make sure your blog is password-protected.

Think about how your posts relate to your workers’ comp case.

If a serious back injury sustained on the job has put you out of commission, you probably shouldn’t post pictures of last week’s pick-up basketball game—even if you were just the referee. Think long and hard about how an insurance company might interpret any photos or information before you click “Publish.”

In conclusion, use common sense—if you wouldn’t want a defense attorney asking you about your latest Tweet or Facebook profile picture in court, don’t post it.

For legal questions or concerns, contact Atlanta workers’ comp attorney Michael Moebes at (404) 354-5432, or visit him online at www.atlanta-workers-comp.com.

Atlanta Workers’ Comp Lesson Number 1: Check Your Mail

Full-MailboxReady Mix USA can testify that one of the quickest ways to lose a workers’ comp case is to ignore a notice sent by the Georgia Courts. After failing to show for a worker’s compensation hearing for one of their employees, Terrell B. Ross, both Ready Mix and their insurance company, Liberty Mutual, found themselves paying for full temporary disability benefits.

As you might imagine, Ready Mix and Liberty Mutual did not go down without a fight. Shortly after a small oversight turned into a hefty bill, both companies banded together and tried to have the hearing vacated. Their reasoning? The courts hadn’t provided adequate notice.

Now, let’s take a look at where this all started. In December 2009, Terrell Ross noticed pain and tightening in his back while swinging a sledgehammer. He followed the rules and immediately reported this to his supervisor. (His supervisor did not follow the rules, and failed to refer him to one of Ready Mix’s appointed physicians.)

One week later, Ross noticed pain in his lower back, and took the opportunity to gently remind his employer of the previous injury report. This time, Ross’s supervisor sent him for a medical evaluation, where he was diagnosed with lumbar and thoracic strain resulting from his occupation. The physician recommended that Ross be put on light duty, and prescribed pain medication and physical therapy for treatment. Several weeks later, Ross went to see a physician who specialized in such treatments; this doctor requested that Ross undergo a surgical MRI.

After seeing the results of the MRI, the physician sent Ross to an orthopedic spine specialist, who recommended facet injections—a treatment that would take Ross out of commission until May 2010. Ross’ work status was recorded as “totally disabled” until the workers’ comp board approved the facet injection treatment.

At this point, Ross requested a hearing with the administrative law judge (ALJ) to ask for permission for an MRI, facet injections, TTD benefits, attorneys’ fees, and a 15% penalty for nonpayment. In addition, he served both Ready Mix USA and Liberty Mutual with discovery requests.

When the hearing rolled around in July 2010, both Ready Mix and Liberty Mutual were no-shows. (Even worse, they provided no responses to Ross’s request for discovery documents.) Ross testified before the ALJ, and was promptly given everything he asked for.

Shocked by the turn of events, Ready Mix USA and Liberty Mutual claimed that they hadn’t received adequate notice for the hearing, and insisted that the ALJ vacate the hearing and allow them to “amend” their responses to the Ross’s request for discovery.

Unsurprisingly, the ALJ refuted both companies’ motions. After all, they had been notified by both e-mail and snail mail—and the court had physical records of mailing the notices, meaning that the onus was entirely on Ready Mix and Liberty Mutual.

The moral of the story here, ladies and gentlemen, is that ignorance is not always bliss, and that you should always check your mail—especially if you’re in the middle of a workers’ comp case.

Contact Atlanta workers’ comp lawyer Michael Moebes at (404) 354-5432 for legal advice.

Officials Investigate Daycare Brawl in Atlanta, GA

State officials in Georgia are currently conducting a formal investigation of a shockingly vicious brawl that took place last year in an Atlanta daycare center. Footage from the fight was first aired by WSB-TV, revealing two facility workers and one parent swinging their fists at each other and wreaking havoc in the baby room of the daycare.

David Gray, the parent allegedly seen in the shocking video, claims that the two daycare worker attacked him while he was holding his one-year-old son. Police contest that, in fact, Gray started the fight after several staff members of the McGarity School or Prep informed him that his son would be suspended from the center.

Oh, and did we mention that Gray also alleged that the daycare workers wouldn’t let him leave with his son? Considering that the inflammatory issue was the suspension of his older child, that seems odd. (People don’t usually insist on retaining students that they’ve suspended.)

After watching the video, it’s little difficult to tell the difference between the adults and the children. (All the “he said, she said” rhetoric surrounding this investigation makes it even harder.) But, what we can see is that one of the daycare workers is clearly trying to break up the fight, while another rushes to move a toddler out of the line of fire.

According to the Chief Communications Officer of the Georgia Department of Early Care and Learning (DECAL), Reg Griffin, the incident, was never reported to the agency by the parent, provider, or even local authorities. From an observer’s perspective, this seems a little suspect. After all, charges brought against feisty parent David Gray were recently dismissed, suggesting that there was at least a little publicity surrounding the events.

Perhaps the real question is why this shocking (and repulsive) video wasn’t investigated by Georgia state officials sooner. And, what’s more, why were the charges brought against alleged instigator David Gray dropped so recently? (Charges were dismissed not long before the video surfaced.)

While we can certainly understand that the public display of this video would be detrimental to the McGarity School of Prep, one would think that, for the sake of the children and the long-term success of the daycare, someone would have reported this incident to a higher authority. Had someone reported this to DECAL a year ago, chances are it wouldn’t be surrounded by a media firestorm.

So, what is the lesson to be learned here? Redemption may not always be found in honesty, but it’s certainly absent in deceit.

Contact Atlanta workers’ compensation attorney Michael Moebes at (404) 354-5432 for legal questions or concerns.

When Dealing with Claims Adjusters, Always Read the Fine Print

Here is the story of one man, his company, and a rather unscrupulous claims adjuster. Kevin Miles, the sole owner and manager of Nebo Ventures, LLC, made his living helping various companies obtain and fulfill contracts with both state and local governments. In 2003, he was contracted by a larger company (formerly known as NovaPro, L.P.) to help sell administrative services to potential clients.

Lo, many years ago, the written contract between Nebo and NovaPro stated that Miles’ contractual fees would be calculated in a separate schedule for each potential customer; furthermore, NovaPro asserted that they would not take any actions that might prohibit the payment of said fees to Nebo. In a later addendum to the contract, the City of Atlanta was identified as a “potential customer,” meaning that NovaPro was responsible for the agreed payment of “5% of the adjusted gross revenues” for the entirety of its contract with the City of Atlanta.

Initially, the contract with Atlanta was crafted to last 2 years, with the option of one two-year renewal. At the end of the contracted period, the City of Atlanta opened up the floor and issued an RFP seeking bidders for a new contract—one which included the provisions of workers’ compensation, medical, healthcare and claims management services. Undeterred, NovaPro threw their hat into the ring, and won. The new contract, beginning July 1, 2009, was for 3 years of service.

Unaware of the private negotiations between the City of Atlanta and NovaPro, Kevin Miles learned that the city was going to end its initial contract with NovaPro, and contacted the CEO, Russ Whitmarsh, about the possibility of extending their agreement for three more years—but only if the City of Atlanta agreed to take on NovaPro again. (Of course, that agreement had already been made.) After several emails, Whitmarsh agreed to Miles’ proposal, saying that he would commit to the extension of the agreement if NovaPro was granted the renewal. (They were.) Whitmarsh also noted that he would put their new agreement in writing. (He didn’t.)

In June 2011, NovaPro sold the entirety of its assets to another company, which included the rights to the renewed contract with the City of Atlanta. As a result, Nebo Ventures, LLC never saw a dime of 2009 contract’s “adjusted gross revenues,” despite the email exchange promising to “extend the current agreement if [we] get the renewal.”

Now, let’s take a step back. According to the Nebo and NovaPro’s first contract, these “adjusted gross revenues” included the possibility of a yearly bonus. The City of Atlanta had generously agreed to grant NovaPro a performance bonus, and, of course, Nebo Ventures, LLC would receive a 5% share. Somehow—despite the fact that the City of Atlanta renewed their contract with NovaPro—Nebo’s checking account did not reflect the 5% share of any performance bonuses. What’s more, the CEO of NovaPro insisted that the company had not received any such payment from the city.

As you might have guessed, NovaPro did indeed earn performance bonuses; in the second quarter of 2005, they received a lump sum of $814,501, and in the second quarter of 2006, they received a bonus of $348, 972. In response to this new piece of information, Miles sued NovaPro to recover damages for breach of contract, and more importantly, fraud.

As of November 19, 2013, Miles’ attempt to recover his alleged losses was summarily denied a trial by jury. The court ruled that Nebo’s reliance on NovaPro’s representation of the situation was unjustifiable, and that neglecting to perform an audit constituted a failure to exercise due diligence. Similarly, the lack of a hard contract renewing the “current agreement,” as promised via email, left Miles with very little ground to stand on.

If the case of Nebo Ventures, LLC v. NovaPro Risk Solutions, L.P. teaches us anything, it is that we should be wary of promises and guarantees that only appear in our inbox.

Contact Atlanta workers’ compensation attorney Michael Moebes at (404) 354-5432 for legal questions or concerns.

Can the workers’ comp defense attorney threaten to have me deported to force a low settlement?

Imagine this scenario:

A nursing home employee–let’s call her Janice–is injured on the job when she slips and falls on an unmarked wet spot on the floor. She immediately reports the injury to her supervisor and proceeds to file a request for medical benefits, temporary disability benefits, and whatever else she may need in the time that she spends recovering from her injury.

Janice’s employers look over her request for temporary disability and medical benefits, and frankly, they don’t want to play ball. Still, they know that things could get ugly if Janice was outright denied financial and medical support during her time of need. What if she brought in an attorney and sued for late payments and legal fees?

So, instead of playing by the rules, Janice’s employers decide to do a little research on their injured employee. Lo and behold, they find that Janice is not a legal citizen of the United States–her Visa expired ages ago, and she hasn’t made any attempts to renew it.

The next day, Janice’s employer gives her a call, and explains that they will provide her with temporary disability payments, but nothing more. Of course, Janice protests–after all, she wouldn’t have been injured if it weren’t for the careless behavior allowed by the facility. But when she learns her employer knows about her expired Visa, Janice is afraid to press the issue or seek legal assistance.

Despite the widespread discouragement of this practice, it still pops up in unexpected places, ranging from divorces to workers’ compensation cases and medical malpractice suits. Although hope may spring eternal for these attorneys and clients, the fact remains that the civil adjudicative process exists to help settle public disputes, while the criminal justice process is specifically designed for the protection of society — in most civil cases, society as a whole is not placed in jeopardy, and as such, the threat of criminal charges is not only unethical, but wholly irrelevant.  If such a threat is made to you by or through an attorney, contact the local bar association and report the behavior immediately, and the offending lawyer will be disciplined.

At Moebes Law, we believe in getting you the compensation you deserve. If you or a loved one has been injured on the job, contact Atlanta’s leading workers’ compensation firm at (404) 354-5432 for a free consultation today.

Are assessed attorney’s fees awards often affirmed by Georgia higher courts?

Well, yes.  And here’s an example…

On October 26, 2010, Martha Ayers was injured on the job. Immediately after the injury, Ms. Ayers officially reported its occurrence. The next day, her employer, Heritage Healthcare of Toccoa, fired her unceremoniously and denied her request for disability benefits. Undeterred, Ms. Ayers went on to file a request for a hearing, requesting income and medical benefits in addition to late payment penalties, assessed attorney’s fees, and litigation expenses.

Surprisingly, Heritage Healthcare of Toccoa didn’t put up a fight. On March 11, 2011, Heritage Healthcare’s third party compensation carrier paid Ms. Ayers in full for twenty weeks of past due benefits, then proceeded to deliver weekly benefits according to her request. On September 27, 2011, Ms. Ayers’ former employer went on to pay a lump sum as compensation for the late penalties owed on the March 11, 2011 payment.

Now, it might seem as though Heritage Healthcare of Toccoa was playing by the rules, but they’d forgotten one not-so-small detail. In addition to paying Ms. Ayers income and medical benefits and any late payment penalties owed, Heritage Healthcare had also tacitly agreed to shell out the money for assessed attorney’s fees and the expenses of litigation–fees that could have been avoided by treating Ms. Ayers with the respect and care she deserved.

On September 29, 2011, the final hearing for Ms. Ayers’ case for assessed attorney’s fees was held. The State Board ruled that Martha Ayers’ claim was valid, and that because Heritage Healthcare of Toccoa hadn’t argued the late payment penalty, they were also responsible for paying all assessed attorney’s fees on those late funds.

So, what lesson can be learned from the Georgia Court of Appeals’ decision to uphold the right to assessed attorney’s fees on past due indemnity benefits, late payments, and future indemnity benefits? When an employee reports a workplace injury, do the right thing…the first  time.

At Moebes Law, we’re committed to protecting your rights and your health. If you’ve been injured on the job, contact Atlanta’s leading workers’ compensation lawyers at (404) 354-5432 for a free consultation.

Can a Georgia workers’ comp claimant pursue late penalties that are 10 years past due?

Meet Michael Reid, an employee of the Metropolitan Atlanta Rapid Transit Authority (MARTA). In October 1999, Reid was injured on the job. He played by the rules and filed a claim within the designated time period, and for his trouble, was awarded temporary total disability (TTD) payments–32 of them, to be exact. Of those 32 payments, 12 were ruled untimely or late, making MARTA subject to a 15% penalty paid in full to Mr. Reid.

martaUpon returning to work in June 2002, Reid stopped receiving TTD payments, despite the fact that he was owed statutory penalties on all late payments–a small detail that MARTA happily overlooked. In May 2010, Reid decided that it was time to call in his debts. His attorney sent a polite letter to MARTA, reminding them of their previous oversight, and requesting that they honor the initial agreement.

As you might have guessed, MARTA declined Reid’s request, noting that the two-year statute of limitations had expired years ago. The administrative judge reviewing the case seconded MARTA’s motion, ruling that a request for long overdue statutory penalties constituted a “change in condition,” and that Reid was seeking “additional benefits.”

So, as long as a workers’ comp insurer ignores its obligation to pay late penalties for long enough, it’s in the clear?

Does an employer’s blatant violation of statutory regulations governing when payments are due and utter disregard for the penalties resulting from said violation constitute a change in the employee’s “condition”? No, according to the Georgia Court of Appeals, as it reversed the lower court’s decision.

Although Reid’s delayed request for statutory penalties may open Pandora’s Box, the fact remains that MARTA’s only real defense comes from a troubling loophole in Georgia Workers’ Compensation statutes. After all, late fees do not cease to exist simply because we decide not to pay them. And, as noted by Michael Reid’s attorney, a mangled reading of the existing legislature will only perpetuate the problem.  I would expect that this case will ultimately be heard by the Georgia Supreme Court.  Should that occur, we’ll know for sure whether statutory penalties are subject to the “change in condition” statute of limitations, but for now, the answer appears to be “no.”

At Moebes Law, we believe that our judicial system is only as good the people who uphold it. If you or your family has been injured on the job or denied claim benefits that are rightfully yours, contact Atlanta’s leading workers’ compensation firm at (404) 354-5432 for a free consultation today.