Second Injury Fund in North Carolina Still Active

In North Carolina, the Industrial Commission disburses moneys from the Second Injury Fund. In order to qualify for compensation for a second injury, the original and the subsequent injury must be at least twenty percent (20%) of the entire body, and, the additional compensation cannot exceed the amount which would have been payable for both injuries had both been sustained in the subsequent accident. The Fund may also pay compensation and medical expenses in cases of permanent and total disability resulting from an injury to the brain or spinal cord. In the claims that pertain to total and permanent disability due to paralysis or loss of mental capacity, the Fund may cover expenses related to medical, nursing, hospital, institutional, equipment, and other treatment expenses reasonable and necessary during the life of the injured...

Catastrophic Does not Necessarily Mean Forever

In 2005, the Georgia State Legislature amended O.C.G.A 34-9-200.1 to include section (i). Pursuant to section (i), when a claimant has been deemed catastrophic, either by the employer or the State Board, it is possible to request new determination as to the catastrophic or non-catastrophic nature of the employee’s injury. The only requirement is that there be “reasonable grounds” to seek the new determination. Presumably, 200.1(i) only applies to injuries occurring after its enactment. For injuries occurring prior to 2005, the only choice the Employer/Insurer had was to seek a change of condition under O.C.G.A. 34-9-104. This undertaking can prove challenging as there is no case law which states definitively that catastrophic designation is subject to a change of condition under 34-9-104. To date, there has been no published case law discussing 200.1(i). However, it seems ripe for scrutiny by the Court of Appeals. What will most likely provide fodder for dispute is the fact that the language of 200.1(i) does not place any specific statute of limitations on filing for a new determination on catastrophic designation. The defense bar will certainly try to assert that operating under 200.1(i) is analogous to seeking a change of condition, and should therefore be subject to the two year time limit from the date the last weekly income benefits were paid. The claimants’ bar will certainly argue that since the legislature created an entirely different statute to control determinations of catastrophic designation, then the silence on a statute of limitations must have been...

An IME Physician May Request Patient Undergo More Testing

In Georgia, as long as an employee is receiving compensation benefits, then he shall submit himself to examinations ordered by a qualified physician.  Independent Medical Examinations (IME) are common in workers’ compensation cases.  They give the employer or the Board a chance to determine the medical status of the employee.  If the employee refuses or in any way obstructs the examination then the Board may order suspension of the employee’s benefits until the refusal or objection ceases. In some circumstances, the brief encounter between a physician and the employee during an IME may not be enough time and information for the physician to present his opinion on the medical status of the employee.  In this situation, the IME physician may recommend or request another follow-up testing, such as a Functional Capacity Evaluation (FCE) in order to confirm his medical opinion on the employee’s medical...

Would Kevin Garnett’s knee injury be considered a workers’ compensation claim?

Image via Wikipedia In last night’s match against the Utah Jazz, Kevin Garnett left the game late in the first half after straining his right knee as he attempted to complete a high “alley-oop” pass from Paul Pierce. If Kevin was playing for the Atlanta Hawks, this could be a potential Georgia workers’ compensation claim.  First, we would have to consider whether Kevin was an employee of the Atlanta Hawks.  We know he plays for the Boston Celtics, but let’s just imagine he played for Hawks. Now, pretend that Kevin would wear a Hawk’s uniform.  He would be required to attend practices, meetings, obey curfew while on out of town trips, and work within the Hawks’ organization.  He would comply with the dress code while on the bench and likely perform other promotional duties as a Hawks’ employee, albeit a highly paid employee.   The Hawks would probably takes out taxes like any other W-2 employee.  Based on these presumptions, I would think Mr. Garnett would be considered an employee, as opposed to an independent contractor, given the amount of control the Hawks have over Mr. Garnett.  See, O.C.G.A. § 34-9-1. The second question would be whether this knee injury arose out of and in the course of his employment with the Hawks.  As Kevin was in the game at the time and he was performing a duty consistent with his job, I would say the injury was in the scope of his employment.  Moreover, I think there was plenty of notice of the injury. The next question would be what benefits would Kevin be entitled to?  First, he would...

The Effect Ongoing Medical Payments Have on Medicare Set-Asides

Image via Wikipedia As a general rule federal law requires parties involved in workers’ compensation claim to consider Medicare’s interests in the event of a settlement. 42 CFR 411.46. However there is one major exception to this rule. According to the October 15, 2004, policy memorandum issued by the Center for Medicare and Medicaid Services (CMS) workers’ compensation parties need not consider Medicare’s interest when the medical aspects of a claim are to remain open. In layman’s terms leaving medical open simply means that the employer will continue to pay for an injured worker’s medical treatment long after the settlement funds are dispersed.   There are many reasons an employer might choose to keep medical open. In my experience this usually happens when the injured worker’s medical treatment is extremely costly or his medical condition indicates a possible shortened lifespan.  In any case, parties involved in a compensation case where the employer has agreed to continue to pay medical bills do not need to worry about Medicare or creating a Medicare...