Ignore the Comp claim and it will go away - NOT

Much like the Dentist's joke that "if you ignore your teeth, they will go away", there are consequences to treating your workers compensation matters with disregard. Think it can't happen? Think it can only happen with uninsured employers? Consider the case of Ready Mix USA v. Ross, decided by the Court of Appeals on March 14, 2012. Mr. Ross alleged a back injury while working for Ready Mix and requested a hearing by filing form WC14 with the State Board of Workers Compensation. Under current procedures, the Georgia State Board of Workers' Compensation uses an electronic filing and notification system (called the Integrated Claims Management System or "ICMS") issues electronic notifications to those who use the system such as attorneys, self insured employers and Insurance Companies. This system, however, leaves injured workers and employers without access as, for the most part, both are infrequent consumers of the workers compensation system. For such parties, service is made by the State Board mailing of notices via first class mail. Assuming the address is correctly provided by the initiating party (in this case Mr. Ross) the mail is sent an the employer (Ready Mix) is notified by U.S. Postal Service 1st class mail delivery while the insurance carrier (Liberty Mutual) receives electronic notification of the filing of a hearing request and the notice of scheduling for that hearing. One concept is important to know: BY LAW, notice to the Employer is notice to the Insurer just as notice to the Insurer is considered notice to the Employer. The practical effect of this notice issue is that the Court DOES NOT CARE if the Employer and the Insurer never actually talked to each other about a claim, only that they should have talked and made a decision about the claim filed by an employee such as Mr. Ross. When the hearing request was filed in Mr. Ross' claim, not only did the Employer and Insurer apparently not talk, not only did the employer and insurer apparently not make a decision, they failed to do ANYTHING about the claim until after the hearing, about which they had notice, had already taken place. Ready Mix and Liberty did not retain counsel and no one on from Ready Mix or Liberty appeared at the hearing. When the Judge was confronted with a party who presented evidence of service, when the Court itself had evidence that its own notifications (US mail and email) were not returned as undeliverable, the Court entered an order finding in favor of the injured worker and giving him everything that he asked for. The Court of Appeals for some reason accepted the application for discretionary review filed by the Employer even though the Court would be bound to affirm the decision of the State Board if there was ANY evidence to affirm it. One possible explantion for this debacle was the the employer, Ready Mix, was not overly familiar with Workers Compensation, knew that they had insurance to handle such matters and decided to defer to its carrier. Liberty for its part is a large and respected carrier with unimaginable email traffic never realized or took cognizance of the claim. Bottom line: if you want a chance to control your workers compensation experience, show up!
"Skedsvold & White
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Economic Change of Condition - Maloney job search

Since 1995, advocates for the injured worker and advocates for the employer have argued over an employee's entitlement to a recommencement (or in some cases commencement) of income benefits after a termination for cause. The seminal case in this area in the state of Georgia is the Georgia Supreme Court's decision in Maloney v. Gordon County Farms. By way of explanation, Ms. Maloney was injured at work and, while still suffering front he effects of the injury (work restrictions were applicable) she was laid off from her position for reasons unrelated to those continuing restrictions. She asked for recommencement of her income benefits and her employer refused reasoning that her layoff was not related to the injury but was an economic issue with the employer. In order to prove her entitlement to benefits, Ms. Maloney went to look for work but, in the aftermath of the ADA couldn't find any potential employer who was willing to admit that they had committed a violation of the Americans with Disabilities Act (thus subjecting themselves to fines and guaranteed hassle from the EEOC) by considering Ms. Maloney's restrictions in their decision not to hire her. The Maloney decision ultimately rendered by the Ga Supreme Court overruled previous decisions when it decided that those previous decisions required the employee to prove reasons why he or she was not hired by a prospective employer. While those of us on the Employer side might scoff that proof of proximate cause is difficult in many situations and that absolving the one party of their burden of proving each of the essential elements of that party's case is itself unfair, the Court balanced the interests and decided that the employee would need to establish a diligent and sincere job search from which the Administrative Law Judge could infer that the inability to locate employment is related to the restrictions attributable to the on the job injury. With that as the background, the Georgia Courts have for the past 17 years struggled with explaining exactly where that inference can be drawn and where it is unfairly applied to award income benefits to the employee. On 5/31/12 the Georgia Court of Appeals issued the latest decision to apply the Maloney standard. In Brown Mechsnical Contractors v. Maughon, the Court was presented with an appeal from the Employer who had been ordered to pay income benefits after Maughon had carried his Maloney burden of proof. The Administrative Law Judge (ALJ) decided that Mr. Maughon had proven a diligent job search by applying to "well over 100" employers in the 6 months between his layoff and the hearing. Upon appeal the Employer convinced the Appellate Division that the job search was not diligent in that: 1) the job search consisted of less than 1 lead per day, 2) included significant gaps of 27 and 18 consecutive days during which no job applications were submitted 3) Maughon's supposed lost employment opportunities were not lost by reasonaid a surgery that had never been scheduled and 4) Maughon concentrated on physical labor jobs when his work experience included managerial and sales experience. Based on these factors the Appellate Division determined that the record did NOT provide support for reasonable inferences to be drawn that his inability to find work was due to the work injury. Dismayed at this finding that well over 100 leads were not evidence of a diligent and sincere job search effort, Mr. Maughon appealed to the Superior Court. The Superior Court decided that the Appellate Division had established a heightened burden not required by Maloney. The Court of Appeals reversed the Superior Courts ruling, in effect agreeing with the State Board's Appellate Division that Mr. Maughon's job search supported the inference that he was attempting to avoid being hired. The actual holding of Maughon from the Court of Appeals is simply a reaffirmation of the basic rule that if there is ANY evidence to support the award that emerges from the State Board's Appellate Division, the Superior Court, the Court of Appeals and the Supreme Court are required to affirm it. The practical effect, though, was to show the way for employers to defend against these "economic change of condition" cases. Practical considerations to ponder: 1) what is the Employee's educational and professional background; 2) what restrictions are applicable; 3) does the job search recognize and attempt to exploit the abilities in #1 and the capabilities found in #2 to find a job or is there an indication that th employee is limiting his job search; 4) is there true diligence in the job search or does the contrary appear. The employer should be cautious in drawing any hard and fast rules from this decision as these cases are all intensely fact based and that the ALJ's decision will include other factors such as whether the employee is sufficiently credible or sympathetic to support a finding that he carried his burden of proof. One more factor to consider: If the employee qualifies for income benefits, the requirement that he continue his job search is over. In short, once he's on benefits, your leverage is gone and the claim is now more expensive. Measure your strengths to be certain but measure the weaknesses in your case honestly as the time before the hearing is the time when the Employee's settlement expectations are most flexible.
"Skedsvold & White
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