icle - state bar of georgia · treatment for compensable injuries. § 34-9-200(b)(2) provides as...

ADR IN THE WORKERS’ COMPENSATION ARENA1 of 311

ICLEPROGRAM MATERIALS | March 13, 2019

ADR IN THE WORKERS’ COMPENSATION ARENA

Wednesday, March 13, 2019 ICLE: Loudermilk Series

ADR IN THE WORKERS’COMPENSATION ARENA

6 CLE Hours including 2 Ethics Hours | 1 Professionalism Hour | 6 Trial Practice Hours

Sponsored By: Institute of Continuing Legal Education


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Copyright © 2019 by the Institute of Continuing Legal Education of the State Bar of Georgia. All rights reserved. Printed in the United States of America. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form by any means, electronic, mechanical photocopying, recording, or otherwise, without the prior written permission of ICLE.

The Institute of Continuing Legal Education’s publications are intended to provide current and accurate information on designated subject matter. They are off ered as an aid to practicing attorneys to help them maintain professional competence with the understanding that the publisher is not rendering legal, accounting, or other professional advice. Attorneys should not rely solely on ICLE publications. Attorneys should research original and current sources of authority and take any other measures that are necessary and appropriate to ensure that they are in compliance with the pertinent rules of professional conduct for their jurisdiction.

ICLE gratefully acknowledges the eff orts of the faculty in the preparation of this publication and the presentation of information on their designated subjects at the seminar. The opinions expressed by the faculty in their papers and presentations are their own and do not necessarily refl ect the opinions of the Institute of Continuing Legal Education, its offi cers, or employees. The faculty is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney. This publication was created to serve the continuing legal education needs of practicing attorneys.

ICLE does not encourage non-attorneys to use or purchase this publication in lieu of hiring a competent attorney or other professional. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.

Although the publisher and faculty have made every eff ort to ensure that the information in this book was correct at press time, the publisher and faculty do not assume and hereby disclaim any liability to any party for any loss, damage, or disruption caused by errors or omissions, whether such errors or omissions result from negligence, accident, or any other cause.

The Institute of Continuing Legal Education of the State Bar of Georgia is dedicated to promoting a well organized, properly planned, and adequately supported program of continuing legal education by which members of the legal profession are aff orded a means of enhancing their skills and keeping abreast of developments in the law, and engaging in the study and research of the law, so as to fulfi ll their responsibilities to the legal profession, the courts and the public.


Who are we?

SOLACE is a program of the State

Bar of Georgia designed to assist

those in the legal community who

have experienced some significant,

potentially life-changing event in their

lives. SOLACE is voluntary, simple and

straightforward. SOLACE does not

solicit monetary contributions but

accepts assistance or donations in kind.

Contact [email protected] for help.

HOW CAN WE HELP YOU?

How does SOLACE work?

If you or someone in the legal

community is in need of help, simply

email [email protected]. Those emails

are then reviewed by the SOLACE

Committee. If the need fits within the

parameters of the program, an email

with the pertinent information is sent

to members of the State Bar.

What needs are addressed?

Needs addressed by the SOLACE

program can range from unique medical

conditions requiring specialized referrals

to a fire loss requiring help with clothing,

food or housing. Some other examples

of assistance include gift cards, food,

meals, a rare blood type donation,

assistance with transportation in a

medical crisis or building a wheelchair

ramp at a residence.

A solo practitioner’s

quadriplegic wife needed

rehabilitation, and members

of the Bar helped navigate

discussions with their

insurance company to obtain

the rehabilitation she required.

A Louisiana lawyer was in need

of a CPAP machine, but didn’t

have insurance or the means

to purchase one. Multiple

members offered to help.

A Bar member was dealing

with a serious illness and in

the midst of brain surgery,

her mortgage company

scheduled a foreclosure on

her home. Several members

of the Bar were able to

negotiate with the mortgage

company and avoided the

pending foreclosure.

Working with the South

Carolina Bar, a former

paralegal’s son was flown

from Cyprus to Atlanta

(and then to South Carolina)

for cancer treatment.

Members of the Georgia and

South Carolina bars worked

together to get Gabriel and

his family home from their

long-term mission work.

TESTIMONIALSIn each of the Georgia SOLACE requests made to date, Bar members have graciously

stepped up and used their resources to help find solutions for those in need.

The purpose of the SOLACE program is to allow the legal community to provide help in meaningful and compassionate ways to judges, lawyers,

court personnel, paralegals, legal secretaries and their families who experience loss of life or other catastrophic illness, sickness or injury.

Contact [email protected] for help.


iiiFOREWORD

Dear ICLE Seminar Attendee,

Thank you for attending this seminar. We are grateful to the Chairperson(s) for organizing this program. Also, we would like to thank the volunteer speakers. Without the untiring dedication and eff orts of the Chairperson(s) and speakers, this seminar would not have been possible. Their names are listed on the AGENDA page(s) of this book, and their contributions to the success of this seminar are immeasurable.

We would be remiss if we did not extend a special thanks to each of you who are attending this seminar and for whom the program was planned. All of us at ICLE hope your attendance will be benefi cial as well as enjoyable We think that these program materials will provide a great initial resource and reference for you.

If you discover any substantial errors within this volume, please do not hesitate to inform us. Should you have a diff erent legal interpretation/opinion from the speaker’s, the appropriate way to address this is by contacting him/her directly.

Your comments and suggestions are always welcome.

Sincerely, Your ICLE Staff

Jeff rey R. DavisExecutive Director, State Bar of Georgia

Rebecca A. HallAssociate Director, ICLE


AGENDA

WEDNESDAY MARCH 13, 2019

8:00 REGISTRATION AND CONTINENTAL BREAKFAST (All attendees must check in upon arrival. A removable jacket or sweater is recommended.)

8:30 ANNOUNCEMENTS, WELCOME AND PROGRAM OVERVIEW Hon. Janice B. Askin

8:40 A WORD FROM THE BOARD Hon. Benjamin J. Vinson, Director, State Board of Workers’

9:00 MEDIATION AND MEDICAL ISSUES Hon. Liesa A. Gholson Hon. Viola S. Drew, Deputy Executive Director, State Board of Workers’ Compensation, Atlanta Hon. David K. Imahara, Chief Administrative Law Judge; Director, Trial Division, State Board of Workers’ Compensation, Atlanta Phillip M. “Phil” Eddings, State Board of Workers’ Compensation, Atlanta Jason M. Langley, State Board of Workers’ Compensation, Savannah

9:45 VETERANS BENEFITS AND WORKERS’ COMPENSATION: PARALLEL LANES, INTERSECTIONS, AND DEAD ENDS Timothy M. Klob, Klob & Larrison Attorneys, Loganville 10:15 BREAK

10:30 HOW CATASTROPHIC DESIGNATION, SSDI, AND SSI AFFECT MEDIATION AND SETTLEMENT C. Jason Perkins, Perkins Studdard LLC, Carrollton 11:00 RECENT CMS AND MSA AGREEMENTS – WHAT ABOUT THE 400 WEEK LIMIT? Shari S. Miltiades, Shari S. Miltiades, P.C., Savannah Richard A. “Rusty” Watts, Swift Currie McGhee & Hiers LLP, Atlanta

11:30 LUNCH (Included in registration fee.) 12:00 SPECIAL CONSIDERATIONS WHEN A CLAIM STEMS FROM A CRIME Hon. Barbara Lynn Howell, State Board of Workers’ Compensation, Atlanta Todd H. Ashley, Deputy Director, Prosecuting Attorneys’ Council of Georgia, Morrow Daniel S. “Danny” Levitas, Clements & Sweet LLP, Atlanta


12:45 CATASTROPHIC CLAIMS – CONSIDERATIONS FOR NEGOTIATING VEHICLE OR HOME MODIFICATIONS AND ATTENDANT CARE Deborah G. Krotenberg, Director, Managed Care and Rehabilitation Division, State Board of Workers’ Compensation, Atlanta

1:15 AFTER SETTLEMENT: ATTORNEY OBLIGATIONS, AMENDING OR VACATING SETTLEMENT AGREEMENTS, MANAGING OPEN MEDICALS, AND OTHER POST-SETTLEMENT CONCERNS FOR ATTORNEYS David M. Kay, Director, Settlement Division, State Board of Workers’ Compensation, Atlanta Rebecca Kirkland Halberg, Morgan & Morgan Atlanta PLLC, Atlanta Benjamin A. Leonard, Bovis Kyle Burch & Medlin LLC, Atlanta

1:45 BREAK

2:00 WHO’S ON THE OTHER SIDE: INSURER/SELF-INSURER/UNINSURED EMPLOYER/GROUP FUND/ MUNICIPALITY OR OTHER GOVERNMENT ENTITY Daniel Maldonado, State Board of Workers’ Compensation, Atlanta Glenn D. Chitlik, Attorney at Law, Atlanta Robin A. Golivesky, Bovis Kyle Burch & Medlin LLC, Atlanta William A. White, Smith Welch Webb & White LLC, McDonough

2:00 TOOLS IN THE TOOLBOX: TIPS FOR ETHICALLY GETTING THE MOST OUT OF THE MEDIATION— AND THE MEDIATOR Michelle M. Thomas, State Board of Workers’ Compensation, Atlanta Bryan C. Ramos, The Ramos Law Firm, Atlanta Robin A. Golivesky, Bovis Kyle Burch & Medlin LLC, Atlanta Kevin O. Skedsvold, Skedsvold & White LLC, Atlanta

3:00 MEDIATING IN GOOD FAITH: IS IT KIND OF LIKE BUYING A USED CAR? Kimberly P. Reaves, State Board of Workers’ Compensation, Atlanta Alan J. Marks, Marks Mediation LLC, Mableton R. Craig Henderson, Henderson Mediation, Atlanta Matthew C. “Matt” Jordan, The Law Offices of Matthew C. Jordan, Atlanta

4:00 ADJOURN


TABLE OF CONTENTS

Foreword ................................................................................................................................................... 6

Agenda ....................................................................................................................................................... 7

ADR IN THE WORKERS’ COMPENSATION ARENA ........................................................ 9- 311

Appendix: ICLE Board ................................................................................................................................................. 1Georgia Mandatory CLE Fact Sheet ................................................................................................ 2

Page


8:30 ANNOUNCEMENTS, WELCOME AND PROGRAM OVERVIEW Hon. Janice B. Askin


8:40 A WORD FROM THE BOARD Hon. Benjamin J. Vinson, Director, State Board of Workers’ Compensation, Atlanta


9:00 MEDIATION AND MEDICAL ISSUES Hon. Liesa A. Gholson Hon. Viola S. Drew, Deputy Executive Director, State Board of Workers’ Compensation, Atlanta Hon. David K. Imahara, Chief Administrative Law Judge; Director, Trial Division, State Board of Workers’ Compensation, Atlanta Phillip M. “Phil” Eddings, State Board of Workers’ Compensation, Atlanta Jason M. Langley, State Board of Workers’ Compensation, Savannah


Mediation and Medical Issues

Liesa Gholson

Administrative Law Judge

ADR Division, SBWC


1

Medical care is changing. There are new treatment options, and new treatment

protocols. Some of the more traditional treatment protocols have come under

scrutiny and are becoming less acceptable. Pain management, which not so long ago

was something that came later in a claim if at all, is being utilized earlier in claims

as treatment options shift away from narcotic medications and toward other

treatment approaches. What is “reasonable and necessary” is changing. All of these

factors, in addition to the parties’ interests in “closing a claim,” whether that be via

a recovering worker’s return to work, a stipulated settlement agreement, or the

passage of time, come into play when parties face each other across a conference

table.

Reasonable and Necessary Medical Care

Employers are required to provide reasonable and necessary medical care and

treatment for compensable injuries. § 34-9-200(b)(2) provides as follows:

For all injuries occurring on or after July 1, 2013, that are not designated

as catastrophic injuries pursuant to subsection (g) of Code Section 34-

9-200.1, the employer shall, for a maximum period of 400 weeks from

the date of injury, furnish the employee entitled to benefits under this

chapter such medical, surgical, and hospital care and other treatment,

items, and services which are prescribed by a licensed physician,

including medical and surgical supplies, artificial members, and

prosthetic devices and aids damaged or destroyed in a compensable

accident, which in the judgment of the State Board of Workers'

Compensation shall be reasonably required and appear likely to effect

a cure, give relief, or restore the employee to suitable employment.


2

What constitutes “such medical, surgical, and hospital care and other treatment,

items, and services which are prescribed by a licensed physician… which in the

judgment of the State Board of Workers' Compensation shall be reasonably required

and appear likely to effect a cure, give relief, or restore the employee to suitable

employment?” There is no definitive answer to this question; like many things in

workers’ compensation, this question is likely to be highly case-specific. What is

“necessary and appropriate” probably will be dependent on specific medical

recommendations and, potentially, individual results.

Early Intervention

Early in the claim, whether in the initial treatment stages with conservative care, or

following a surgery, it might be possible to approach treatment in ways that avoid

the pitfalls that can follow treatment with opioids – especially long-term treatment

with opioids. This doesn’t necessarily mean limiting pain relief options to

acetaminophen, aspirin, ibuprofen, etc. – it may mean those options plus other means

of providing enhanced or more complete relief, even if not the near-immediate relief

a narcotic medication can provide.

Steroid injections, physical therapy, and exercise are non-narcotic pain relief and

pain management options that are familiar to most as they have been part of

“mainstream” medical practice for many years. Radiofrequency ablation and Botox

injections are newer entrants on the scene. Only a few years ago these treatments

were widely considered experimental and unproven, but more recently they have

become more generally accepted.

Non-narcotic medications used in what might be called “off label” applications are

also used to enhance pain relief. For example, some anti-depressants and anti-


3

anxiety medications are very effective in helping to manage pain and assist with

recovery. The prescribing of these medications may not imply there is a

psychological facet to the treatment – the medications might be prescribed solely for

pain relief reasons. If so, it is helpful to have a very clear statement from the

prescribing physician as to why the prescription is given and what the goals of

treatment with the medication are; otherwise, a vigilant claims examiner or defense

attorney is likely to flag that medication as a treatment for a non-accepted or non-

related condition.

Clear explanations also increase the likelihood of patients taking the medication

appropriately – some people are very resistant to taking medications perceived to

treat psychological conditions but might be more compliant if there is a good

understanding of the non-psychologic treatment goals for that medication. “I don’t

need that because I’m not depressed” can be avoided as a detriment to recovery with

good explanations and understanding.

Perhaps less accepted are some of the other “more natural” approaches to pain relief

and pain management, including chiropractic care, massage, acupuncture, dry

needling, and occupational therapy, among others. Two of the arguments against

these types of treatment is that they can be expensive, and they do not have

permanent effects. Thus the treatment must be repeated on a regular basis to maintain

effective relief. The necessity of repeated treatments is a complicating factor when

one of these types of treatments figures into an employee’s future medical needs at

settlement time.


4

Why Mediation?

For non-catastrophic cases, an employer’s responsibility to provide medical care is

of limited duration. Medical care is to be provided for up to 400 weeks for claims

arising on and after July 01, 2013. See O.C.G.A. § 34-9-200(a). As of July 10, 2017,

the Centers for Medicare & Medicaid Services (“CMS”) indicated that state-specific

statutes would be recognized, providing that submitters show that Medicare’s

interests have been protected adequately.

Much of the practice of law is adversarial – one party against another. Mediation

provides an opportunity to change that dynamic and allow the parties to work

together towards a common goal, albeit from often disparate approaches.

Mediation of medical issues comes about in two ways: one party requests mediation

of an issue via a WC-14 request for mediation (which does not require the consent

of the other parties for setting), or mediation is ordered by an ALJ or the Board.

Board Rule 100(b) and (c) provide that hearing requests or motions are to be

screened to identify cases likely to be resolved by mediation. Additionally, the ADR

Division and each administrative law judge has the authority to direct the parties to

attend a mediation conference. This authority extends to “medical only” claims.

Mediation as a dispute resolution process is intended to facilitate a more rapid

resolution of a situation, with less expense and fewer formalities than would be

entailed in a trial. Mediation is a chance for the involved parties to participate in the

resolution of their issues, to have a hand in crafting the result rather than having a

result dictated by a third party, and to have an increased level of satisfaction with the

result.


5

“Less expense and fewer formalities” does not necessarily translate into less

preparation on the part of the lawyer. One aspect of preparation that can be attributed

to an attorney’s professional responsibilities is ensuring that the clients understand

not only the strengths of their cases but the weaknesses as well. Mediation is not the

best time for parties first to learn that there may be some problematic aspects of their

cases. Preparation is a good way to minimize unhappy surprises – preparation of the

case and preparation of the client. Preparation also has the advantage of minimizing

the chance that the unhappy surprise will be to the attorney. There is always the

chance that new and surprising information may surface during an opening statement

or in caucus exchanges, but adequate preparation increases the attorney’s ability to

counter and correctly evaluate the new revelation.

Confidentiality

The confidentiality necessary for mediation to be successful as a process along with

the less formal atmosphere of mediation are not a blanket that makes any and all

tactics acceptable or appropriate. Mediation should not be used in pursuit of an

illegal goal. Mediation of a Workers’ Compensation case should not be used to deny

or delay any rights afforded under the Workers’ Compensation Act, nor to gain

benefits to which a client otherwise would not be entitled. Mediation of a medical

issue should not be used as a tactic for delay or denial.

Conduct of Mediation

An attorney has an obligation to the law, as well as to the client. Diligent

representation requires that the purposes for which the legal process is used be legal

themselves. Emphasizing a client’s strengths to that client’s advantage, presenting

the case in the best possible light, is a different matter than misrepresenting the facts

of the case in an attempt to achieve a desired result.


6

While that distinction may seem obvious, diligent representation and appropriate

counsel may require that it be mentioned during the mediation or preparation for the

mediation.

False statements made in mediation do not amount to perjury under oath (see

O.C.G.A. §34-9-20), but statements should be constrained by the knowledge that

mediation should not be used in pursuit of a goal that is not lawful.

Treatment Plan Collaboration

Questions or issues or outright disputes over medical care can arise at any point

throughout a claim. The natural tendency may be to view these situations through

an “us against them” lens – but it is possible to take a different view. The parties

want the same thing – reasonable and necessary medical care to improve the

condition of the injured worker, to hopefully provide a cure, grant relief, and return

the worker to suitable employment.

Collaboration can be helpful in this instance. Early in the life of a claim the parties

can use a collaborative approach to avoid the development of disputes. Focusing on

common goals can allow the parties to resolve an issue without the polarizing effect

of an adversarial process in which the parties are focused on “winning” rather than

reaching a mutual goal.

Change of Physician

Change of physician mediations, whether arising at the request of one party or at the

order of an ALJ or the Board, give the parties an opportunity to participate in the

selection or designation of a physician rather than having that decision rest entirely

in the hands of an ALJ. Often the parties are directed to bring to the mediation a list


7

of doctors appropriate for the employee’s condition. While mediations are

confidential, these lists of doctors are specifically excepted from confidentiality

provisions and can be provided to the ALJ should the mediation not result in an

agreement. See Board Rule 100(f)(3)(F).

Winding Up Care

Mediation can be particularly useful early in the process when the parties are

beginning to contemplate settlement. Well before actual settlement, the parties can

begin to work out a plan for winding up medical care in a manner that makes

complete settlement possible, with either closed medicals or a reasonable Medicare

Set-Aside Agreement (“MSA”). A medical treatment plan that tapers treatment

appropriately or sets out clear targets for the future can be key for both sides. The

recovering worker gains assurance that appropriate care will be available,

employer/insurer know what future costs are to be expected, and a plan can be

crafted which demonstrates appropriate consideration of Medicare’s interests.

Post-Settlement Closure of Medicals

Mediation can be useful also in claims in which the indemnity obligations have been

resolved with a stipulated settlement agreement which left medical care open. Often

in such claims the parties will wish to close medical care at a future date. Again, a

collaborative approach can be helpful here – the parties have a common interest and

the intent of the mediation is to reach a mutual goal rather than to win concessions

from the other side.


8

Petitions for Medical Treatment

One of the most common complaints for recovering workers is that a treatment or

referral “hasn’t been authorized.” An equally common response is “it hasn’t been

controverted.” This circular argument should not exist. A minimum of

professionalism on both sides would eliminate the situation. What can be semantics

or gamesmanship among attorneys and adjusters has real consequences for an

injured worker awaiting medical care.

In part to eliminate this conundrum, the Board developed an expedited process

available in accepted claims to help recovering workers obtain necessary medical

care more quickly. In July 2017, Board Rule 205 was amended to create the Petition

for Medical Treatment form and process, covered in detail in the Appendix to this

paper. This process has proven very effective in avoiding roadblocks by eliminating

the “pocket veto” effect: an employer/insurer must either affirmatively authorize or

controvert the requested treatment.

Strategies and Tactics

Some people approach mediation as an exercise in trying to reach a mutually

acceptable result as quickly and pleasantly as possible, while others try to “win” by

being more stubborn and unmoving than their opposites, being hard-nosed on every

point. Both approaches can be successful, and either may be appropriate depending

on the needs of the particular client and the approach of the opposing counsel.

However, mediation as an exercise is not about “winning” and the parties are not

“opponents” to be bested.


9

A negotiated agreement should be at least as good as its best non-negotiated

alternative. Money is not the only criterion by which a result should be evaluated,

and to reduce mediation to a question of “how much” or “whose choice” is to ignore

many of the benefits of a negotiated agreement, whether it be full and final settlement

or resolution of a particular issue. Part of the professional obligation of an attorney

representing a party in mediation is to ensure that the client understands all of the

benefits of participating in mediation and achieving a negotiated agreement.

In facilitative mediation, the mediator’s role is to help the parties to the dispute

express their positions on particular issues and their views of the case, and to help

their opposing parties hear and understand these positions and views.

At the State Board, mediators often function as evaluative mediators, assisting the

parties to evaluate strengths and weaknesses of their cases and assessing possible

outcomes.

Collaboration allows parties to bypass oppositional viewpoints and instead work

towards common goals.

Whether mediation is facilitative, evaluative, or collaborative, mediation of medical

issues provides an opportunity to remain in control of their claim themselves, and to

achieve results favorable to all parties.

Participation in the mediation process, keeping in mind the rules of ethics and

standards of professional responsibility, allows the parties to express their

viewpoints in a constructive format rather than an adversarial process, and can yield

more satisfactory results than having a decision imposed by a third party.


10

Medical Treatment Requests

David K. Imahara

Chief Judge

State Board of Workers’ Compensation


11

Medical Treatment Requests

Petitions for Medical Treatment

As of July 1, 2017, the Workers’ Compensation Board amended Rule 205 to add subsection (c) creating a new process, the Petition for Medical Treatment (“PMT”). The purpose of this new process was to improve the delivery of medical treatment to injured workers and avoid undue and unnecessary delays with medical treatment in compensable claims.

With this new rule, a new form was created, the Form WC-PMT, to use when an employer/insurer has failed to respond to a request for authorization of treatment/testing by an authorized medical provider within five business days of the request. The employee and/or the employee’s attorney may file a WC-PMT.

When filing the Form WC-PMT, at a minimum, this filing should include attached medical documentation supporting the request. For example, some Form WC-PMTs have been filed with just letters or emails (e.g. a letter/email from the claimant’s attorney to the adjuster or defense attorney requesting approval of medical treatment). While this evidence is helpful to show claimant’s counsel has given the employer/insurer an opportunity to authorize/controvert the

recommended medical treatment, the best evidence for this process is the medical records from the provider. In addition, the request for authorization of medical treatment must be from an authorized medical provider.

Upon filing a request, the Form WC-PMT acts as a request to the Board to issue a notice of a show cause telephonic conference before an administrative law judge within five business days. The purpose of the conference is for the employer/insurer to show cause why the treatment or testing at issue has not been authorized. Failure of a party to participate in the conference does not preclude a ruling by the judge.

In lieu of participation in the telephonic conference, the employer/insurer and/or the employer/insurer’s attorney may use this form to authorize or controvert the recommended treatment/testing. If the employer/insurer does this (e.g. authorize or controvert the recommended treatment), the telephonic conference is cancelled. However, from the judge’s

perspective, a good practice point is for any party or attorney to call the assigned judge’s office

regarding the status of any conference call, especially when a conference is not needed anymore. Following the telephonic conference, the ALJ may issue an Interlocutory Order regarding the authorization of the treatment/testing at issue. If the ALJ determines that it should be authorized,


12

the Order will require the employer/insurer provide written authorization to the medical provider. Any party may object to the Order by requesting a hearing within 20 days. The absence of a hearing request within that time will act as consent to payment for the treatment/testing.

After our first year, by all accounts, this new process has been a success.

At the end of 2018, the Board received close to 2,200 PMT requests. Here are the general results: (1) approximately 83% were resolved without a conference call; and (2) conferences calls were held by judges in 10% of the requests. There were around 10% of the PMTs that I put in the “other” category that I will address below. The general results show an authorization rate around 60% and a controvert rate around 30%. These numbers reflect that the intended purpose—speed up delivery of authorized medical care and avoid delay—is being achieved by the new PMT process.

It appears the quick formal action by this process has been so popular that it has included requests (10% “other” category mentioned above) outside the intended purpose (e.g. payment of medical bills, change of physician requests, the designation of an ATP, discovery—obtaining a panel of physicians and Form WC-102 requests, permission to go to an IME, employer/insurer requests for attendance with the ATP or IME, etc.). While the PMT process has been referred to as a “rocket docket” and many in our system like a quick action resolution process, we are still in the infancy of this program and the possible expansion of the process to other issues may be given consideration in the future.

Finally, we have an update to the PMT process in 2018. For the 2018 updated Rules, an 2018 amendment to Board Rule 205(c) removes the exemption from the PMT process for employers who utilize a managed care organization (MCO) for medical treatment. Under the new rule, employers who utilize an MCO will have 30 days to authorize recommended medical treatment, and at the end of the 30-day period if the treatment is not authorized or controverted, a PMT may be filed by the employee or counsel representing the employee.

Here are a couple of helpful tips. First, if an authorized provider makes “multiple”

requests for authorization of treatment (i.e. MRI, PT, etc.), please file a Form WC-PMT for each request. It is easier for the employer/insurer to authorize/controvert individual requests. Second, submit/attach with the PMT request the medical records supporting the request. Third, a brief statement explaining the request is helpful to the judge.


9:45 VETERANS BENEFITS AND WORKERS’ COMPENSATION: PARALLEL LANES, INTERSECTIONS, AND DEAD ENDS Timothy M. Klob, Klob & Larrison Attorneys, Loganville


Biographical Summary Timothy M. Klob attended Georgia State University College of Law and graduated in 1994. Prior to law school, Mr. Klob obtained a bachelor's degree in civil engineering in 1988 from the University of Texas at Arlington. While in law school, Tim worked as a civil engineer with the Georgia Department of Transportation where his duties included urban planning and where he earned his license as a Professional Engineer (P.E.). Mr. Klob is a retired Army Reserve Lieutenant Colonel with over 20 years of prior service as a military lawyer in the Judge Advocate General’s (JAG) Corps. In his past service as a Judge Advocate, he served as Deputy Commander of the 213th Legal Operations Detachment in Decatur, Georgia and represented wounded warriors as Soldiers’ Counsel in military and VA disability hearings at Fort Hood, Texas. Tim is accredited to represent veterans in claims for VA disability benefits and is admitted to practice before the U.S. Court of Appeals for Veterans Claims. Mr. Klob currently serves as a part-time Magistrate Judge in Gwinnett County and also as a workers’ compensation attorney with the Thompson, Sweeny, Kinsinger & Pereira law firm in Lawrenceville, Georgia. In his role with Gwinnett County, he presides over both civil and criminal matters in Magistrate Court, as well as sitting by designation in both Superior and State Court for garnishment and family violence matters. In addition to these two assignments, Mr. Klob is a registered mediator and is affiliated with Innovative Mediation Solutions, an Atlanta-based mediation group focused on providing mediation services for workers’ compensation claims. Prior to assuming his current respective roles with Gwinnett County and Thompson-Sweeny, Mr. Klob was managing partner of Klob & Larrison Attorneys in Loganville, Georgia where he handled hundreds of claims for injured workers and disabled individuals. He has been selected for the Georgia Super Lawyers list, a rating service of outstanding lawyers for which no more than five percent of lawyers in each state are selected each year, for 2012 and 2014-2019. Tim has also been awarded the “AV-Preeminent” designation by Martindale-Hubbell, based upon peer review as to ethics and professionalism. Tim currently serves as the Immediate Past President of the Walton County Bar Association. He also serves on the advisory board for Armed Services Mission, a veteran’s service organization aimed at suicide prevention and intervention for military personnel and veterans. He is a member of the Workers’ Compensation Section of the State Bar of Georgia, the Gwinnett County Bar Association, NewRock Legal Society and Georgia Injured Workers Advocates (GIWA). In his free time, Tim enjoys playing the ukulele and spending time with his family and rescue dogs.

ADR IN THE WORKERS’ COMPENSATION ARENA28 of 311 3/11/19

1

TIMOTHY M. KLOBOf-Counsel Attorney

Thompson, Sweeny, Kinsinger & Pereira, P.C.690 Longleaf Drive

Lawrenceville, GA 30046(770) 963-1997

[email protected]

VA Disability Benefits

� Veterans are entitled to medical care and compensation for disability related to injuries, illness or wounds sustained while in military service

� Injury, illness or wounds must be deemed to be “service-connected” for compensation

� VA benefits can be critical source of income to claimant during WC claim

� “Service-connected” does not necessarily mean combat or deployment-related. It typically requires only that the injury or condition occurred while on active duty


2

“Service Connection”

� Service Connection: Caused by or Incurred in military service

� Presumption of Soundness: Presumed when examined and enrolled in service

� Combat-related injuries or conditions can sometimes yield higher compensation payments or reduced offsets

� Presumptive Service Condition: Served 90 days or more during a wartime period after 1946

� Examples: Agent Orange; Chronic Disease; POW; Tropical Disease

� Both primary and secondary conditions can be rated

VA Disability Compensation

� Veteran’s disability benefits are monthly compensation payments related to a percentage of disability computed for their combination of impairments

� Disability compensation rate dependent on rating, not based on rank or years of service

� Veterans are permitted to work despite having a disability rating (with some exceptions for cases involving total disability)

� VA disability differs from Social Security or TTD and does not require total disability to be payable


3

VA Disability Ratings

� Veteran’s disability payments are based on ratings which are in increments of 10% based on calculation of cumulative impairments and conditions deemed “service-connected”

� Veteran cannot be rated higher than 100% - even if their individual ratings would be higher if added together

� A zero percent rating for a service-connected condition yields no compensation, but entitles the veteran to VA medical treatment for that condition

� Veterans can receive additional compensation for certain conditions that are otherwise not rated

Individual Unemployability

� Total Disability for compensation based on Individual Unemployability

� “TDIU” or “IU” has similar requirements for total disability as SSDI evaluation by Social Security

� TDIU is also similar to WC catastrophic requirements

� TDIU requires 60% evaluation for one disability or 70% combined evaluation with at least one condition rated at 40%

� Veteran awarded TDIU is paid at 100% rating rate

� Many veterans with significant ratings have not applied for TDIU benefits


4

VA Medical Records

� VA consider ALL treatment records medical conditions

� WC claimants can access their VA medical records online through eBenefits

� Veterans can also obtain their records directly from their VA Regional Office – in paper or electronic format

� VA and WC medical opinions may differ due to the VA’s duty to assist and the adversarial nature of WC

� C&P Exam reports may be most helpful

� VA medical records are computer-generated and often not helpful in determining causation

Military Personnel Records

� National Personnel Records Center (NPRC) is the primary source for obtaining military personnel records

� Request records using Standard Form 180 (Note that records may in more than one location)

� Have client provide copies they have of their records

� VA required make good faith effort to obtain records

� Recent veterans may have their records in electronic format

� Military personnel and medical records can be useful in determining preexisting conditions or aggravation of prior injuries


5

Military Medical Records

� SF 180, Request Pertaining to Military Personnel Records, should include detailed request seeking hospital or “clinical” records in addition to personnel records

� Military records may show prior injuries from military service –ensure you review all records including sick call records and records from all military treatment facilities

� VA medical and personnel records may show prior injuries or treatment for conditions that are subsequently at issue in workers’ compensation claims.

� Military personnel may treat at multiple facilities, sometimes even on the same installation –and also may be referred out to civilian providers, so be sure you obtain all records from all sources.

VA and WC Issues

� Impact of VA disability benefits on State WC benefits?

� Impact of VA disability benefits on Federal WC benefits?

� Impact of treating for WC injuries through the VA and/or TriCare?

� Impact of VA disability benefits on other forms of disability benefits or insurance benefits?

� Impact of criminal convictions or arrests? (Veteran’s Court programs)

� Liens for any treatment received through VA or TriCare?


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Practice Tips

� Always ask WC clients if they are veterans and receiving or pursuing VA benefits

� Ask this question to your intake questionnaire and make referrals if needed

� Be aware that some service-connected conditions may worsen due to a work injury

� If your WC client is a veteran, encourage them to pursue all VA benefits

� Determine your client’s discharge characterization since this impacts benefits

� VA benefits can help your client financially during their workers’ compensation claim

Sources and Resources

� NVSLP Veterans Benefits Manual, (LEXIS-NEXIS)

� Armed Forces Mission (Military/Veteran suicide intervention and prevention training and assistance): www.armedforcesmission.org

� American Bar Association Military/Veterans Law Section: http://www.americanbar.org/advocacy/governmental_legislative_work/letters_testimony/military_law.html

� PTSD Foundation of America: http://ptsdusa.org/

� Georgia Department of Veterans Service: https://veterans.georgia.gov/

� ROA ServiceMembers Law Center: http://www.servicemembers-lawcenter.org/

� VA website: www.va.gov


10:15 BREAK


10:30 HOW CATASTROPHIC DESIGNATION, SSDI, AND SSI AFFECT MEDIATION AND SETTLEMENT C. Jason Perkins, Perkins Studdard LLC, Carrollton


Jason Perkins received his B.A. from Mercer University and his J.D. from the University of Georgia. He is a partner at Perkins Studdard LLC. His firm currently specializes in the representation of injured workers in workers’ compensation claims and the representation of veterans in claims before the Veterans Administration.

Jason is a Past President of WCCL. He also serves on the Executive Committee of the Workers Compensation Section of the State Bar of Georgia and as a member of the Licensure and Self Insurance Committee of the Chairman’s Advisory Council. Jason also serves as a workers’ compensation mediator for Innovative Mediation Solutions LLC.


What Do I Need to Understand about Catastrophic Designation,

SSDI, and SSI to Settle a Workers’ Compensation Case

Jason Perkins Perkins Studdard, LLC 201 Bankhead Highway

Carrollton, Georgia


WHAT DO I NEED TO UNDERSTAND ABOUT CATASTROPHIC DESIGNATION, SSDI, AND SSI TO SETTLE A WORKERS’ COMPENSATION

CASE

Jason Perkins Perkins Studdard, LLC

Carrollton, Georgia

TABLE OF CONTENTS

Catastrophic designation issues practitioners should consider in mediations…………………….…………………………………………………………………. 1 What is the injured worker’s date of injury?……………………………….. 1 Has the injured worker’s case been designated catastrophic? ..……. 3 How do I determine if a claim will qualify for a catastrophic Designation? ………………………………………………………………………….. 6 Do I need a vocational expert prior to mediation?..........………………. 10 What about the retirement presumption contained in O.C.G.A. §34-9-200.1(g)(6)? …………………………………………………….. 12 What about the 130 week light duty presumption? …………………….. 15 Besides removing the 400 week caps on benefits, does a catastrophic designation provide any other benefits to an injured worker? ………………………………………………………………………………….. 16 What about Social Security Disability and Supplemental Security Income?……………………………………………………………………………………………. 17 Has the injured worker filed for SSDI benefits with the SSA? ……… 18 How is SSI (Supplemental Security Income) different from SSDI?. 22


1

In the last twenty-five years, catastrophic designation, Social Security

Disability, and Supplemental Security Income have become more important in

Georgia workers’ compensation cases. This increased importance has arisen as a

result of changes in Georgia law which tied eligibility for certain workers’

compensation benefits to catastrophic designations. Because of these changes,

practitioners in the workers’ compensation field often find themselves mediating

cases which involve these three issues. This paper will discuss issues that

practitioners need to consider when mediating any workers’ compensation case,

but especially those cases that result in permanent restrictions to the injured

worker.

1. Catastrophic designation issues practitioners should consider in mediations A. What is the injured worker’s date of injury?

I started practicing in 2000. At the time, the change in the workers’

compensation law made in July 1992 that limited temporary total disability

benefits to 400 weeks in noncatastrophic cases was just starting actually effect

people. This was because people who had suffered work injuries immediately

after that change had hit the noncastastrophic limit on their temporary total

disability benefits. Between 1992 and 2005, the General Assembly made five

separate changes to the language of O.C.G.A. §34-9-200.1(g)(6). This meant that

an injured worker’s date of injury was very important because it affected which of

the five different version of the statute would apply in deciding whether that

claim was going to be designated catastrophic.


2

Things have gotten a little simpler as the language of O.C.G.A. §34-9-

200.1(g) has remained pretty much the same for the last ten years. This means

that most of us will not have to consider in current cases where catastrophic

designation is an issue whether the 1992 or 1995 version of of O.C.G.A. §34-9-

200.1(g)(6) applies. But, the injured worker’s date of injury still has a significant

effect when you are considering catastrophic designation. The critical question

now is whether the injured worker’s accident occurred before July 1, 2013. This

question is critical because medical treatment and testing is currently limited to

400 weeks in noncatastrophic case with dates of injury on or after July 1, 2013.

If your mediation involves a date of injury before July 1, 2013, then there

will be potential lifetime medical even if there is not a catastrophic designation.

But, cases involving injuries that occurred on or after July 1, 2013 will not have

lifetime medical exposure unless they qualify for a catastrophic designation. This

artificial limit on medical treatment for an injury has a severe effect on medical

coverage and exposure in many cases.

After 1992, catastrophic designation always mattered for the limits on

temporary total disability benefits. Now, it matters for caps on medical treatment

and testing as well. So, practitioners definitely must consider whether an injured

worker’s injuries could qualify for catastrophic designation when you are

evaluating a case for settlement and mediating that case.

The one situation where practitioners are most likely to run into a

different version of O.C.G.A. §34-9-200.1(g)(6) that was in effect for a date of

injury prior to July 1, 2005 is when an insurance company make an attempt to


3

remove a catastrophic designation. A couple of questions need to be considered

in this situation:

• What version of O.C.G.A. §34-9-200.1(g)(6) applies (since there are

several different versions with different definitions of catastrophic

and the applicable standard will depend on the injured worker’s

date of injury)?

• If an earlier version of the statute applies, Is the attempt to remove

the catastrophic designation appropriate based on the injured

worker’s date of injury (since the presumptions about a case not

being catastrophic in the first 130 weeks and no longer being

catastrophic after retirement age were not inserted in the statute

until 2005)?

B. Has the injured worker’s case been designated catastrophic?

It is possible that the injured worker’s case may have already been

designated catastrophic. Most often, this would early in a claim if the injured

worker experienced an injury that would qualify under O.C.G.A. §34-9-

200.1(g)(1) through (g)(5). These five subsections cover specific types of injuries:

1. Spinal cord injury involving severe paralysis of an arm, a leg, or the trunk 2. Amputation of an arm, a hand, a foot, or a leg involving the effective loss of

use of that appendage 3. Severe brain or closed head injury as evidenced by severe sensory or motor

disturbances; severe communication disturbances; severe complex integrated disturbances of cerebral function; severe disturbances of consciousness; severe episodic neurological disorders; or other conditions at least as severe in nature

4. Second or third degree burns over 25 percent of the body as a whole or third degree burns to 5 percent or more of the face or hands

5. Total or industrial blindness


4

These types of catastrophic injuries do not involve a vocational

component. Instead, they focus on the medical diagnoses of the injured worker.

When these types of injuries occur, an insurer should file a WC-R1 and designate

the case as catastrophic. This may happen very early in the claim if the injury

meets the definitions laid out in any of the (g)(1) through (g)(5) subsections.

Catastrophic designations under O.C.G.A. §34-9-200.1(g)(6) are usually treated

differently because they involve a vocational component which make them more

difficult to determine early in the claim.

If the injured worker’s case has not been designated catastrophic yet, you

need to consider whether it will qualify for a catastrophic designation. The first

question you should ask is whether the injured worker arguably meets any of the

requirements of (g)(1) through (g)(5). This list of questions will help you

determine whether you need to look into this further:

1. Was there a spinal cord injury?

2. Was there an amputation of all or part of the hand or foot?

3. Was there a brain or closed head injury?

4. Did the injured worker suffer burns?

5. Did the injury cause the injured worker visual impairment?

If the answer to one or more of those questions is “Yes”, then practitioners

need to look more carefully at O.C.G.A. §34-9-200.1(g)(1) through (g)(5) to

determine whether the injured worker may qualify for a catastrophic designation

under those subsections.

If the answer to all of those questions is “No”, practitioners still need to

consider whether the injury may qualify for a catastrophic designation under


5

O.C.G.A. §34-9-200.1(g)(6). Subsection (g)(6) is often known as the catch all

provision of catastrophic designation. Instead of focusing on the type of injury

suffered by the injured worker, it focuses on the vocational effect that the injury

has.

As I discussed earlier, there have been many different versions of

subsection (g)(6) since 1992. The version currently in effect is reproduced

below:

(g) "Catastrophic injury" means any injury which is one of the following:

(6) (A) Any other injury of a nature and severity that prevents the employee from being able to perform his or her prior work and any work available in substantial numbers within the national economy for which such employee is otherwise qualified; provided, however, if the injury has not already been accepted as a catastrophic injury by the employer and the authorized treating physician has released the employee to return to work with restrictions, there shall be a rebuttable presumption, during a period not to exceed 130 weeks from the date of injury, that the injury is not a catastrophic injury. During such period, in determining whether an injury is catastrophic, the board shall give consideration to all relevant factors including, but not limited to, the number of hours for which an employee has been released. A decision granting or denying disability income benefits under Title II or supplemental security income benefits under Title XVI of the Social Security Act shall be admissible in evidence and the board shall give the evidence the consideration and deference due under the circumstances regarding the issue of whether the injury is a catastrophic injury; provided, however, that no presumption shall be created by any decision granting or denying disability income benefits under Title II or supplemental security income benefits under Title XVI of the Social Security Act. (B) Once an employee who is designated as having a catastrophic injury under this subsection has reached the age of eligibility for retirement benefits as defined in 42 U.S.C. Section 416(l), as amended March 2, 2004, there shall arise a rebuttable presumption that the injury is no longer a catastrophic injury; provided, however, that this presumption shall not arise upon reaching early retirement age as defined in 42 U.S.C. Section 416(1), as amended March 2, 2004. When using this presumption, a determination that the injury is no longer catastrophic can only be made by the board after it has conducted an evidentiary hearing.


6

While subsection (g)(6) was changed many times between 1992 and 2005, it has

not been changed since. The 2005 version of the statute applies to any cases with

a date of injury on or after July 1, 2005. Because most requests for catastrophic

designation will be filed within 10 years of the date of injury, the 2005 version of

O.C.G.A. §34-9-200.1(g)(6) will apply to most, if not all, of the cases where you

are mediating a case which has not yet been designated catastrophic.

With an initial read through of the current version of (g)(6), one can

quickly see the standard for whether an injury qualifies as catastrophic in the first

few lines of (g)(6)(A). The question is whether the work injury prevents the

injured worker from performing prior work and work available in substantial

numbers within the national economy. This definition is very similar to the

definition that the Social Security Administration uses when deciding whether an

individual qualifies for Social Security Disability benefits or Supplemental

Security Income benefits, which are discussed later in this paper.

C. How do I determine if a claim will qualify for a catastrophic

designation?

The first things that need to be established when pursuing a catastrophic

designation are the abilities and/or limitations of the injured worker. Usually,

this will start in the medical arena. Hopefully, the treating doctors have made a

diagnosis, implemented a treatment plan, and placed the injured worker at

maximum medical improvement. At this point, what you need from the treating

doctor is an opinion on work status.

Now, the treating doctor will probably have already provided an opinion.

In many cases, you may have a fairly generic work restrictions form with a box


7

checked that says “Light duty” or one with a little bit more detail that says,

“Sedentary work lifting 10 pounds maximum and occasional standing/walking”.

While these forms can certainly be helpful in beginning to think about

catastrophic designation, more detailed information is necessary to determine

the chances of a case being designated catastrophic pursuant to O.C.G.A. §34-9-

200.1(g)(6).

This generally requires asking the treating and/or evaluating doctors

detailed questions through a questionnaire. You do need to know about all issues

relating to the work injury or injuries that potentially affect a person’s ability to

obtain and maintain employment. These questions fall into four areas: physical

limitations, nonexertional limitations, psychological limitations, and

environmental limitations. I have tried to identify potential areas of inquiry in

the outline below.

• Physical limitations from the injury

a. Lifting and carrying limitations (from floor, from waist, and overhead)

b. Sitting i. Need to elevate legs (one or both)

ii. How long is injured worker able to sit before needs to stand up

iii. What is total time injured work can sit in a day? iv. Need to elevate legs? One or both? For how long?

c. Standing i. How long can injured worker stand before needs to sit

down ii. What is total time injured worker can stand in one day

iii. Does injured worker need to be able to alternate sitting and standing at will

iv. Will injured worker need to lie down at unpredictable intervals during the work shift?

d. Walking i. Need to use assistive devices like cane, crutches, or

walker?


8

e. Pushing/pulling f. Climbing g. Balancing h. Stooping i. Kneeling j. Crouching k. Crawling l. Overhead reaching m. Forward reaching n. Driving o. Grasping p. Handling q. Fingering r. Feeling s. Twisting/Turning t. Cervical flexion/extension/rotation

i. How long can it be maintained? ii. Total time in a day?

u. Repetitive work with arms/legs i. Can injured worker use foot pedals? With one or both

legs?

With each of the exertional limitations, practitioners will certainly want

the doctor to provide information about whether the injured worker can do these

activities continuously (from two-thirds to all of an eight hour day), frequently

(from one-third to two-thirds of an eight hour day, occasionally (up to one-third

of an eight hour day), or never.

• Nonexertional limitations

a. What pain is suffered as a result of injury (mild to severe) i. Does the pain interfere with attention and the ability to

concentrate? If so, does this interfere with the ability to do complex, detailed, or even simple work activities?

ii. Are there any activities which increase pain? (e.g. repetitive motion in arm injuries, overhead work in shoulder injuries, cervical flexion/extension in neck injuries) If so, what is the pain level after engaging in these activities? How is the injured worker affected by this increased pain level?

b. What medications are taken as a result of the injury? Do these medications have any side effects which affect the ability to work such as drowsiness, concentration, or memory?


9

c. Do the symptoms from the injury produce “good days” and “bad days”? If so, would the injured worker be expected to miss at least 3-4 days per month due to pain and/or medication side effects?

d. Will the injured worker require rest breaks due to pain? If so, are scheduled breaks sufficient? If so, how often?

• Psychological limitations

a. Diagnosis of condition and signs and symptoms that support

diagnosis (poor memory, appetite disturbance with weight change, sleep disturbance, mood disturbance, emotional lability, loss of intellectual ability of 15 IQ points or more, delusions or hallucinations, substance dependence, recurrent panic attacks, anhedonia or pervasive loss of interests, psychomotor agitation or retardation, paranoia or inappropriate suspiciousness, feelings of guilt/worthlessness, difficulty thinking or concentrating, suicidal ideation or attempts, oddities of thought/perception/speech/behavior, perceptual disturbances, catatonia or grossly disorganized behavior, social withdrawal or isolation, blunt/flat/inappropriate effect, illogical thinking or loosening of associations, decreased energy, manic syndrome, obsessions or compulsions, intrusive recollections of a traumatic experience, persistent irrational fears, generalized persistent anxiety, somatization unexplained by organic disturbance, hostility and irritability, pathological dependence or passivity)?

b. Limitations on ability to function in the following areas (unlimited, fair (limited ability but satisfactory), poor (seriously limited but not precluded), none)

i. Follow work rules ii. Relate to co-workers

iii. Deal with the public iv. Use judgment v. Interact with supervisors

vi. Deal with stresses vii. Maintain attention/concentration

viii. Understand, remember, and carry out complex job instructions

ix. Understand, remember, and carry out detailed, but not complex, job instructions

x. Understand, remember and carry out simple job instructions


10

xi. Maintain personal appearance xii. Behave in an emotionally stable manner

xiii. Relate predictably to social situations xiv. Demonstrate reliability

c. To what degree, if at all, can the injured worker tolerate work stress (Capable of high stress, moderate stress, or low stress jobs)? d. What medications are taken as a result of the

psychological condition? Do these medications have any side effects which affect the ability to work such as drowsiness, concentration, or memory?

• Environmental limitations

a. Heights b. Moving machinery c. Temperature extremes d. Temperature fluctuations e. Humidity f. Vibration g. Loud noise h. Dust i. Fumes j. Smoke k. Uneven terrain l. Wet surfaces

A full understanding of all the limitations that apply as a result of the work injury

or injuries is an essential element in understanding whether a case will likely

qualify for a catastrophic designation.

D. Do I need a vocational expert opinion prior to mediation?

If you are going to a contested hearing in a case where catastrophic

designation under O.C.G.A. §34-9-200.1(g)(6) is at issue, I believe that a

vocational expert opinion is almost a must have for practitioners representing

either side. Whether a vocational opinion is beneficial prior to mediation will

depend on a couple of different factors. The first such factor is whether you feel

comfortable with evaluating the chances that the claim will or will not qualify for

a catastrophic designation in order to do properly advise your client with regard


11

to settlement. If you do not, then consulting with a vocational expert would

certainly be helpful. The vocational expert could provide you with a better

understanding of the reason that certain restrictions or limitations will or will not

prevent the injured worker from obtaining and maintaining employment.

A second factor that will matter is whether the vocational opinion will be

helpful or necessary to convince the other party in the claim of your position.

Even if you feel that you understand why the claim will or will not be designated

catastrophic, the opposing party may need something more than your arguments

to give your position fair consideration in settlement discussions. You need to

consider how familiar the decision makers on the other side are with how

different medical limitations affect people from a vocational standpoint. It is

often helpful to try to have a conversation with opposing counsel some time well

in advance of a mediation to find out whether there is a dispute or general

agreement about the chances that the claim will be designated catastrophic. This

discussion will go a long way to helping you decide whether you need to invest in

a vocational expert opinion prior to mediation.

Some practitioners, like me, do not handle Social Security Disability

claims. I would encourage them to ask numerous questions of their vocational

experts. It is important to have a good understanding of how different medical

limitations affect an individual’s ability to work. It is important to understand

how an injured worker’s limitations can prevent the performance of prior work

or other jobs that are available. It is also important to understand if the injured

worker has developed transferable skills through prior employment and

education and how this affects potential employment opportunities.


12

The Court of Appeals decision in Davis v. Carter Mechanical, Inc.,

provides a good starting point for understanding vocational expert opinions.1

While the Court of Appeals fell short of invalidating the vocational expert’s

testimony in Davis, the Court did indicate that the ALJ and the Appellate

Division should take into account whether a vocational expert’s opinion

considers certain factors in deciding the weight to give the opinion. The factors

identified in Davis are as follows:

1. The vocational expert’s consideration of whether an individual could perform a given job based on: a. Physical ability b. Age c. Education d. Work experience

2. The vocational experts consideration of accommodated or modified jobs

A vocational expert gives an opinion that relies on certain facts. Those facts

include physical and mental abilities, age, education, and work experience. The

expert relies on these facts to give an opinion that work does or does not exist in

substantial numbers within the national economy. If the facts on which the

vocational expert relies are not correct, the vocational expert’s opinion will have

little or no probative value.2

E. What about the retirement presumption contained in O.C.G.A. §34-9-200.1(g)(6)?

The current version of O.C.G.A. §34-9-200.1(g)(6) contains the following

language:

1 272 Ga. App. 773, 612 S.E.2d 879 (2005). 2 Kines v. City of Rome, 220 Ga. App. 732, 733, 470 S.E.2d 311, 312 (1996).


13

Once an employee who is designated as having a catastrophic injury under this subsection has reached the age of eligibility for retirement benefits as defined in 42 U.S.C. Section 416(l), as amended March 2, 2004, there shall arise a rebuttable presumption that the injury is no longer a catastrophic injury; provided, however, that this presumption shall not arise upon reaching early retirement age as defined in 42 U.S.C. Section 416(1), as amended March 2, 2004. When using this presumption, a determination that the injury is no longer catastrophic can only be made by the board after it has conducted an evidentiary hearing.

When it was originally enacted, this provision provided the first opportunity that

I am aware of for an Employer/Insurer to remove a catastrophic designation.

Basically, the subsection provides that an Employer/Insurer can attempt to do

this once an injured worker reaches full Social Security retirement age. It even

provides that the Employer/Insurer will receive a rebuttable presumption that

the injury is no longer catastrophic when this happens. However, it also clearly

provides that the board can only make a determination that the case is no longer

catastrophic after an evidentiary hearing. In other words, Employer/Insurers

should not unilaterally suspend an injured worker’s benefits on a claim that a

catastrophic designation has been removed by this presumption and also should

not be able to get the catastrophic designation removed by motion.

Recent experience in my practice has shown me that people are working

longer. I have several clients that were injured after they turned 65 or even after

age 70. Some never retired in the first place and some retired and then had to

return to work because they could not live off of Social Security. Therefore, in

addition to dealing with dealing with issues of whether a catastrophic

designation can be removed under the language in subsection (B), a claimant’s

attorney may have to deal with the situation of what effect this language has on a


14

case where an initial catastrophic designation is sought for an individual over

Social Security retirement age.

It can certainly be argued that (g)(6)(B) only applies to cases where an

individual has already received a catastrophic designation when he or she

reaches retirement age. The subsection specifically indicates that it is talking

about individuals who already have a catastrophic designation when they

reach retirement age. If an injured worker has already passed retirement age

when the case is initially designated catastrophic, then (g)(6)(B) may not even

apply.

Assuming that you have a case in which (g)(6)(B) does apply, the next

question to answer is what does (g)(6)(B) mean. The code section does provide

that the Employer/Insurer gets a rebuttable presumption that the injury is no

longer catastrophic at an evidentiary hearing. Since it is presumed that the

injury is no longer catastrophic, the injured worker will have a burden of

presenting evidence that the claim remains catastrophic to rebut this

presumption. In other words, the injured worker will need to show that he or

she suffers from “any other injury of a nature and severity that prevents the

employee from being able to perform his or her prior work and any work

available in substantial numbers within the national economy for which such

employee is otherwise qualified”.3

Since the presumption provided by this subsection is rebuttable, one

would assume that the question of whether it is rebutted would be a question for

3 O.C.G.A. §34-9-200.1(g)(6)(A).


15

the State Board.4 When the injured worker presents evidence that he or she

cannot perform the prior work and any work available in substantial numbers

within the national economy, the State Board should find that the presumption

has been rebutted. In other words, assuming that the injury has not improved

and that the job market is still the same, the injured worker should still meet the

requirements for catastrophic designation and the injury should remain

catastrophic.

F. What about the 130 week light duty presumption?

The most recent version of O.C.G.A. §34-9-200.1(g)(6) provides a

rebuttable presumption that a case is not catastrophic in a particular situation:

1. The injury has not already been accepted as a catastrophic injury; 2. The authorized treating physician has released the injured worker to

return to work with restrictions; and 3. It is 130 weeks or less since the injured worker’s date of injury

If you are evaluating a case for settlement within the first two and a half years,

this may matter. But, this presumption disappears once 130 weeks pass. So,

unless you are concerned with a determination on catastrophic designation

within that two and a half year time frame, this presumption will not have a

significant effect. Also, even within that time frame, the presumption is

rebuttable; and the State Board is instructed to give consideration to all relevant

factors. If we look back to the guidance provided by the Court of Appeals in

Pearson, supra, we can intuit that whether a presumption created under (g)(6)

has been rebutted is a question of fact. If an injured worker can demonstrate that

he or she is not able to perform his or her prior work or any work available in

4 Jered Industries, Inc. v. Pearson, 261 Ga. App. 373, 582 S.E.2d 522 (2003)


16

substantial numbers within the national economy, then the presumption should

be rebutted. Furthermore, this presumption should only apply when the claim

for catastrophic designation occurs within two and a half years of the injury.

G. Besides removing the 400 week caps on benefits, does a catastrophic designation provide any other benefits to an injured worker?

A catastrophic designation mandates that the Employer/Insurer pay for a

catastrophic rehabilitation supplier to assist the injured worker with medical and

return to work issues. A good catastrophic rehabilitation supplier can be very

helpful on cases with complex medical or accommodation issues, especially if the

injured worker needs modifications made to his or her home or vehicle as a result

of the work injury.

A catastrophic designation also prevents the Employer/Insurer from using

O.C.G.A. 34-9-104(a)(2) to reduce an injured worker’s benefits to temporary

partial disability. O.C.G.A. 34-9-104(a)(2) provides that an Employer can reduce

an injured worker’s benefits to temporary partial disability when an injured

worker is capable of performing work with limitations for 52 consecutive weeks

or 78 aggregate weeks. For a worker drawing the current maximum in temporary

total disability of $575 per week, a reduction to temporary partial disability would

mean a $192 per week cut in benefits. However, O.C.G.A. 34-9-104(a)(2) begins

with the qualifying phrase “When an injury is not catastrophic”. Therefore,

successfully obtaining a catastrophic designation will prevent the

Employer/Insurer from reducing your client’s check when your client has been

released with severe limitations that prevent an actual return to work.


17

2. What about Social Security Disability and Supplemental Security Income?

Disability benefits are one of the primary benefits provided by Georgia’s

workers’ compensation system to injured workers who are unable to work.

Injured workers receiving workers’ compensation benefits sometimes qualify for

disability benefits under other benefit systems as well. Some common systems

that provide disability benefits to injured workers include:

• Disability insurance programs (short and/or long term disability insurance

• Veterans Administration (veterans disability benefits) • Social Security Administration (Social Security disability benefits

and Supplemental Security Income) Of those other programs that provide benefits, this paper will focus on the

benefits provided by the Social Security Administration (SSA) programs. It is

important to understand that there are two different programs administered by

the SSA that have two different purposes. Social Security Disability (SSDI) is a

program that requires individuals to have met certain “insurance” requirements

with the SSA in order to qualify. To be insured for SSDI benefits, individuals

must have worked a certain period and paid Social Security taxes on their

earnings. On the other hand, Supplemental Security Income (SSI) sets

qualification requirement that focus on the income and assets of individuals. For

SSI benefits, it does not matter whether an individual has worked enough to meet

the SSA’s insurance requirements.

Both SSI and SSDI do have disability requirements. In order to qualify for

SSDI or SSI, applicants have to demonstrate that they meet the requirements for

disability established by the SSA. These requirements generally focus on whether


18

people applying for benefits have conditions that prevent them from doing their

prior work and other work that is available considering their age, education, and

transferable skills. The standard used by the SSA in determining disability is

almost identical to the standard the Georgia legislature has established for

catastrophic designation under O.C.G.A. §34-9-200.1(g)(6).5

A. Has the injured worker filed for SSDI benefits with the SSA?

When mediating a workers’ compensation case, the parties need to know

whether the injured worker has applied for or qualified benefits with the SSA.

One primary reason to know this is that it affects how a settlement may need to

account for future medical costs that need to be covered by Medicare as well as

conditional payments that may have been made by Medicare. These concerns

arise as a secondary result of an SSDI award or application potentially resulting

in an injured worker becoming a Medicare beneficiary. Another presentation at

this seminar covers Medicare secondary payor issues, so this paper will not focus

on that topic.

There are at least two other reasons that the parties need to know about

SSDI status. The first is the issue of catastrophic designation that was discussed

earlier in this paper. By qualifying for SSDI benefits, injured workers have

generally demonstrated that they meet the test that O.C.G.A. §34-9-200.1(g)(6)

establishes for catastrophic designation of having an injury “of a nature and

severity that prevents the employee from being able to perform his or her prior

work and any work available in substantial numbers within the national economy 5 See Cobb County Sch. Dist. v. Barker, 271 Ga. 35, 518 S.E.2d 126 (1999) (the 1992 version of O.C.G.A. §34-9-200.1(g)(6) expressly focused on the same definition used by the SSA); Davis v. Carter Mech., Inc., 272 Ga. App. 773, 612 S.E.2d 879 (2005) (amendment to O.C.G.A. §34-9-200.1(g)(6) was intended to bring subsection in line with the SSA’s standard for disability).


19

for which such employee is otherwise qualified.” That statutory subsection also

provides that the decision granting or denying SSDI benefits is admissible and

that the State Board can give the decision the appropriate deference under the

circumstances regarding the issue of whether a case is catastrophic.

Often, you may mediate a case where the injured worker has qualified for

SSDI or SSI benefits but the case has not yet been designated catastrophic. In

such a case, it is also important to consider how the SSA decision will affect the

injured worker’s chances of qualifying for a catastrophic designation. This

evaluation will almost always make a significant difference in the injured

worker’s future eligibility for temporary total disability benefits under O.C.G.A.

§34-9-261. For injury dates on or after July 1, 2013, this evaluation will also

significantly affect the workers’ compensation insurer’s responsibility for

payment of future medical treatment and testing.

Another reason that qualification for SSDI benefits matters is the

workers’ compensation offset that the SSA applies. The basic idea of the workers’

compensation offset is that the SSA considers Georgia workers’ compensation

benefits that are paid to an injured worker when calculating the SSDI benefit that

the injured worker receives. The SSA publishes an online handbook which

provides explanations about Social Security programs and benefits.6 Section 504

of that handbook provides a basic explanation of how the workers’ compensation

offset works. It provides that a reduction in an injured worker’s SSDI benefits

6 https://www.ssa.gov/OP_Home/handbook/handbook.html (it is important to read the disclaimer on Online Social Security Handbook which provides that the Social Security Act, Regulations, and Ruling take precedence when they conflict with the handbook).


20

occurs when SSDI benefits plus workers’ compensation benefits exceed eighty

percent of average current earnings.7

Basically, this means that some injured workers will receive a reduced

SSDI benefit because of the amount of workers’ compensation benefits they

receive. The three things that you will need to know to determine whether an

injured worker’s SSDI benefits will be reduced or are properly being reduced are:

1. The workers’ compensation benefit amount 2. The SSA’s calculation of the average current earnings (ACE) 3. The primary insurance amount (PIA) which the SSA determines based on

your average indexed monthly earnings (AIME)8 Let us consider a simple example. An injured worker is receiving $500 per

week ($2,150 per month) in temporary total disability benefits and that injured

worker has a PIA of $1,700. The SSA determines that the injured worker has

ACE of $4,000 per month. Applying the formula where SSDI benefits get offset

when workers’ compensation benefits plus PIA exceed eighty percent of ACE, you

can see that there will be a reduction in this example because eighty percent of

ACE is $3,200 and the temporary total disability benefits plus PIA is $3,850.

So, how does this reduction work? The SSDI benefit is reduced until the

workers’ compensation benefit plus the SSDI benefit equals exactly eighty

percent of the ACE. In this example, the SSDI benefit would be reduced by $650

to $1,050. When that reduction is made, then the workers’ compensation

monthly benefit of $2,150 plus the SSDI benefit of $1,050 would exactly equal

eighty percent of average current earnings.

7 You can also view the Social Security Program Operations Manual System (POMS). Section DI 52101.001 of POMS which discusses the Workers’ Compensation Offset can be found at https://secure.ssa.gov/apps10/poms.nsf/lnx/0452101001 8 https://www.ssa.gov/oact/cola/Benefits.html


21

This all becomes important when you consider benefits what happens after

settlement. In a Georgia workers’ compensation case, Board Rule 15(m) allows

the State Board or any party to require that the settlement include language

which prorates the settlement over the life expectancy of the injured worker.

Often known as Hartman language, the SSA will accept this language in approved

workers’ compensation settlements and use it in how it applies its workers’

compensation offset provisions.9 In some situations, settlement of the workers’

compensation case may create a situation where the SSA will reduce or eliminate

the amount by which it offsets the injured worker’s SSDI benefits.

The factor in the offset formula which changes with workers’

compensation settlements is the future workers’ compensation benefit amount.

Hartman language prorates the settlement amount over the injured worker’s life

expectancy. So, a $200,000 settlement which is prorated over the injured

worker’s 20 year life expectancy results in a prorated workers’ compensation

benefit amount of $833.33 per month for the remainder of the injured worker’s

life. If we use the numbers from our earlier example, this injured worker would

now have a monthly workers’ compensation benefit of $833.33 per month plus a

PIA of $1,700 per month. Those two added together would be $2,533.33 per

month which is less than eighty percent of ACE ($3,200), so the SSA would not

reduce the injured worker’s SSDI benefits.

There are several other things that need to be considered when one

considers SSDI offsets in the process of settling a workers’ compensation claim.

9 Long term disability insurance policies also often contain provisions that may allow settlements for other benefits (such as workers’ compensation) to be prorated over the life expectancy of the disabled individual or some other specified time period


22

First, the SSA will allow Hartman language to take out money that is paid as

attorney’s fees out of the settlement. This means that a $200,000 settlement will

actually be prorated based on the $150,000 that the client actually receives if

there is a standard 25 percent attorney’s fee. Second, there are situations where

the settlement could actually result in an increase in the existing offset instead of

a decrease (or the creation of an offset where one does not currently exist).

Third, if a spouse and/or children are receiving Social Security benefits as well,

the offset calculation and the effect on settlement can be much more complicated

because you have to consider a family maximum benefit that can apply.

B. How is SSI (Supplemental Security Income) different from SSDI?

In my experience, practitioners will encounter injured workers who qualify

for SSDI benefits in the workers’ compensation arena much more often than they

will encounter injured workers who qualify for SSI. SSI is a needs based benefit.

People must generally have income and assets below a certain amount in order to

qualify for SSI. Since the SSI income limit is fairly low and workers’

compensation benefits count as income for SSI purposes, many injured workers

get excluded from eligibility for SSI benefits based on their receipt of workers’

compensation benefits.

Nevertheless, some injured workers do qualify for SSI benefits. Most

often, this happens when the injured worker does not have enough quarters paid

in to the SSA to qualify as “insured” under the SSDI requirements and the injured

workers weekly workers’ compensation benefit rate is also quite low. As a

practitioner, you need to consider whether the injured worker has qualified for


23

SSI when considering settlement because settlement will almost always affect an

injured worker’s eligibility for SSI benefits. This occurs because settlement

provides the client with a lump sum of assets at once. Since SSI has limits on the

amount of assets that an individual can have, the payment of a settlement almost

always disqualifies an individual from SSI for some time.

If an injured worker is currently receiving SSI benefits and wants to

consider settlement of a workers’ compensation case, it will probably be

important to have a conversation with an attorney who specializes in trust and

other financial planning vehicles. There are trust vehicles, such as a special needs

trust, that can be used to allow an injured worker to enjoy some of the benefits of

a workers’ compensation settlement while still maintaining eligibility for SSI and

potentially Medicaid as well. I am by no means an expert in this area of the law.

My intent is simply to point out that workers’ compensation practitioners should

spot this issue when it comes up so they can consider it and get a specialist

involved if necessary.

The other situation where SSI often comes up in settlement discussions is

where an injured worker plans to apply for SSI benefits after settlement. This

also usually happens where an injured worker does not have enough paid into the

SSA to qualify for insured status. One key issue that comes up in this situation is

the asset limit that SSI sets. With SSDI, an injured worker’s income and assets

do not matter. But, they both matter with SSI eligibility. While the client may

not have any income to prevent eligibility after settlement, their assets may

certainly prevent them from being eligible. The SSA has established rules about

which assets count and which do not when determining SSI eligibility. As a


24

workers’ compensation practitioner, you should be aware enough to spot this

issue and take appropriate steps to determine whether you have enough expertise

to address the issue or need to consult with another expert to make decisions

about how to proceed.


11:00 RECENT CMS AND MSA AGREEMENTS – WHAT ABOUT THE 400 WEEK LIMIT? Shari S. Miltiades, Shari S. Miltiades, P.C., Savannah Richard A. “Rusty” Watts, Swift Currie McGhee & Hiers LLP, Atlanta


11:30 LUNCH (Included in registration fee.)


12:00 SPECIAL CONSIDERATIONS WHEN A CLAIM STEMS FROM A CRIME Hon. Barbara Lynn Howell, State Board of Workers’ Compensation, Atlanta Todd H. Ashley, Deputy Director, Prosecuting Attorneys’ Council of Georgia, Morrow Daniel S. “Danny” Levitas, Clements & Sweet LLP, Atlanta


Injuries Caused by Violence in the Workplace

Daniel Levitas Clements & Sweet

1355 Peachtree Street, NE, Suite 1800 Atlanta, Georgia 30309-3278

Hon. Barbara Lynn Howell State Board of Workers’ Compensation 270 Peachtree Street, NW, Seventh floor

Atlanta, Georgia 30303-1299

Todd Ashley Prosecuting Attorneys’ Council of Georgia

1590 Adamson Parkway, Fourth Floor Morrow, Georgia 30260-1755


2 |Injuries Caused by Violence in the Workplace

INJURIES CAUSED BY VIOLENCE IN THE WORKPLACE

When you hear the phrase “violence in the workplace,” the minds of many will leap to the

image of an active shooter and fumble to recall the national safety protocol -- “Run. Hide. Fight.”

In response to highly publicized active shooter events, the public and private sectors have

stepped up their efforts to implement effective workplace violence prevention programs. Despite

media focus on the co-worker that simply “snapped,” statistics bear out that typically, there are

warning signs. While this paper is not about preventing or minimizing workplace violence, it is

appropriate to acknowledge some of the warning signs.

Warning signs

Among the commonly recognized warning signs:

• Sudden, persistent complaining about unfair treatment • Blaming others for problems • Change in behavior or decline in job performance • Stated hope for something bad to happen to supervisor or co-worker • Increase in absenteeism • Refusal to accept criticism about work performance • Inability to manage feelings; outbursts of swearing or slamming doors

Though active shooters in the workplace garner the most media attention, workplace

violence is not a new phenomenon and is far more widespread than what makes the evening news.

Numerous federal agencies, non-profit organizations, and private sector companies collect

workplace violence data. However, the data quality requirements and the methods used to conduct

and disseminate statistical analysis of their data vary. Therefore, it is difficult to compare “apples



to apples.” The inclusion of numerical or categorical data in this paper is not to assist the reader

in making data-driven decisions, but rather to simply get the reader thinking about the specter of

workplace violence.

The numbers

Recent Occupational Safety and Health Administration (“OSHA”) statistics reflect that

annually over two million people report being victims of workplace violence. It is estimated that

another 500,000 incidents go unreported. These are shocking numbers; however, it is important

to note that OSHA relies on different indices and definitions than what you might consider when

thinking about workplace violence. OSHA broadly defines workplace violence “as any act or

threat of physical violence, harassment, intimidation or other threatening disruptive behavior that

occurs at the worksite.”

Regardless of how it is defined, the National Institute for Occupational Safety and Health

place incidents of workplace violence into four categories:

1. Criminal intent 2. Customer/client 3. Worker-on-worker and 4. Personal relationship Who is at risk?

Greater risk occupations are those in which an employee:

• Is responsible for money or guarding valuables • Works with dangerous or unstable groups • Works in isolation • Provides a service • Works where alcohol is served • Works at more dangerous times • Works in areas that have a high crime rate



The methodologies for estimating costs related to crime victimization also vary; however,

the estimates from Lower & Associates International Risk Management Partners are often cited.

Lower & Associates estimate 500,000 employees annually miss an estimated 1.8 million work

days due to workplace violence – resulting in more than $55 million in lost wages alone. Of

course, the more significant direct costs are incurred from medical bills, legal fees, increased

insurance premiums, separation and replacement cost of the worker, costs for increased security

and property damage. There are also indirect losses to the business community including

diminished productivity, negative publicity and low morale. Lower & Associates estimate the

comprehensive cost to private sector business at around $130 billion.

In stark contrast to the Lower & Associates numbers, the 2016 Bureau of Labor Statistics

report reflects that only 16,890 workers in private industry were forced to miss time from work

due to injuries suffered from workplace violence. According to the report, of the workers that

missed time due to workplace violence in the private sector:

70% were female 67% were aged 25-54 70% worked in the healthcare and social assistance industry 21% required 31 or more days away from work to recover, and 19% involved 3-5 days away from work. The Bureau of Justice Statistics does not report on time-missed from work but does confirm

that the most common form of workplace violence is assault.



As for violence that ended in death, the Bureau of Labor Statistics reports that in 2016, 500

workers died by homicide.1

Of those that died from workplace violence: 82% were male 48% were white 69% were aged 25-54 31% were working in aretail establishment, and 23% were performing protective service activities. Of the females that died from workplace violence, over 40% were killed by a relative or

domestic partner.

Generally, government employees experience a rate of nonfatal workplace violence that is

more than three times the rate for private sector employees. As for public sector workplace deaths

due to violence, they are most frequently in the areas of law enforcement (148 in 2018),

corrections, and transportation.

Resources: CDC www.cdc.gov National Safety Council www.nsc.org/home Bureau of Labor Statistics www.bls.gov OSHA www.osha.gov Safety and Health Magazine www.safetyandheatlhmagazine.com National Institute for Occupational Safety and Health www.cdc.gov/NIOSH/ Lowers & Associates International Risk Management Partners www.lowersrisk.com National Traumatic Occupational Fatalities data.bls.gov

1 For a more detailed breakdown of occupational fatalities, see the National Traumatic Occupational Fatalities Surveillance System (“NTOF”). This is an ongoing death certificate-based census of traumatic occupational fatalities. The most recent NTOF report reflects that there were 194 occupational fatalities in Georgia in 2017. Interestingly, the report shows that 30 of those deaths were from “violence and other injuries by persons or animals.”



When is an injury due to workplace violence compensable under the Workers’

Compensation Act?

The fact that an injury is the result of a willful or criminal assault by a third person upon

an employee while the employee is engaged in the work of his employment does not necessarily

prevent the injury from being “accidental” within the meaning of the Workers’ Compensation Act

(hereafter referred to as “Act”). Pinkerton National Detective Agency v. Walker, 157 Ga. 548, 122

S.E. 202 (1924) (holding that the widow of a detective who was acting as a night watchman for

his employer and was killed while trying to prevent the escape of a thief was entitled to workers’

compensation benefits); Keen v. New Amsterdam Casualty Company, 34 Ga. App. 257, 129 S.E.

174 (1925) (holding that a garage employee suffered a compensable injury when he was shot by a

customer irritated by the employer’s refusal to do additional repair work on his car without charge);

Atlanta Checker Cab Co. v. Padgett, 154 Ga. App. 43, 267 S.E.2d 464 (1980) (holding that the

death of a cab driver who was shot and killed in the operation of his taxicab had arisen out of and

occurred in the course of his employment).

O.C.G.A. §34-9-1(4) provides the fundamental rule that a work injury must arise out of

and in the course of the employee’s employment to be compensable under the Act. The terms

"arising out of" and "in the course of" are not synonymous. State Dept. of Labor v. Yates, 131 Ga.

App. 71, 205 S.E.2d 36 (1974). Both conditions must be satisfied for the Act to apply. Hughes v.

Hartford Accident Co., 76 Ga. App. 785, 47 S.E. 2d 143 (1948); Williams v Maryland Casualty,

99 Ga. App. 489, 109 S.E. 2d 325 (1959); Zamora v. Coffee General Hospital, 162 Ga. App. 82,

290 S.E. 2d 192 (1982); Dasher v. City of Valdosta, 217 Ga. App. 351, 457 S.E. 2d 259 (1995).



“The issue of whether an injury arises out of and in the course of employment and so is

compensable under the workers’ compensation law is a mixed question of fact and law. The finder

of fact must first hear all the relevant evidence concerning the injury and, after finding the facts

with regard thereto, render a conclusion of law on whether it was job-related.” Lavine v. American

Insurance Company, 179 Ga. App. 898, 348 S.E. 2d 114 (1986).

Arising out of…

An injury “arises out of” the employment when a reasonable person, after considering

the circumstances of the employment, would perceive a causal connection between the

conditions under which the employee must work and the resulting injury. Chaparral Boats,

Inc. v Heath, 269 Ga. App. 339, 606 S.E. 2d 567 (2004) (citing Hennly v. Richardson, 264 Ga.

355, 444 S.E. 2d 317 (1994)). The causative danger must be incidental to the character of the

employment, and not independent of the relation of master and servant. A risk is incident

to the employment when it belongs to, or is connected with, what a worker has to do in

fulfilling his contract of service. Chaparral Boats (citing Thornton v. Hartford Accident &

Casualty Co., 198 Ga. 786, 32 S.E. 2d 816 (1945)).

Under circumstances where the conditions of the employment not only provide the

time and place for an assault by a third person or a co-worker, but if the employment

conditions increased the risk of the attack and subjected the employee to a danger peculiar

to the employment, the injury is deemed to “arise out of” the employment. Burns

International Security Services Corporation v. Johnson, 284 Ga. App. 289, 643 S.E. 2d 800

(2007)(finding as compensable and therefore subject to the exclusive remedy bar, the sexual



assault and murder of a security guard where there was no evidence beyond mere speculation that

the guard had left her post on a personal pursuit before being attacked and murdered on the high-

risk property she was required to patrol); Helton v. Interstate Brands Corp., 155 Ga. App. 607,

271 S.E. 2d 739 (1980) (holding that the assault and rape of one employee by another was an

“accident” under the Act when the willful act was not directed against the employee for personal

reasons).

In Chadwick v. White Provision Company, 82 Ga. App. 249, 60 S.E. 2d 551 (1950) the

Court of Appeals found compensable the death of an employee who, while engaged in his regular

duties, was shot and killed by an insane co-worker (whose insanity was not known to the

employer). The Court concluded that the death had to have been “accidental” because an insane

person is incapable of committing willful acts.

An injury does not arise out of employment when it cannot be fairly traced to the

employment as a contributing proximate cause. The “arising out of” requirement has been

particularly problematic in cases of sexual assault. The landmark case of Employers Insurance

Company v. Wright, 108 Ga. App. 380 (133 SE2d 39) (1963), involved the rape of a female

employee at gunpoint in a secluded area of the premises where she regularly performed the duties

of her employment. The Court characterized the particular conditions under which the employee

worked as being "peculiarly conducive to the eventuality which did occur" and were viewed as

increasing the risk of attack and subjecting the employee to a danger peculiar to the employment.

Therefore, Wright held that the assault arose out of the claimant's employment.



Citing Wright, the Court found in Helton v. Interstate Brands Corp. 155 Ga. App. 607, 271

S.E. 2d 739 (1980) that “There is no question that the injury to plaintiff occurred ‘in the course of’

her employment as the assault and kidnapping took place on the defendant's premises while

plaintiff was in the process of going to work… The conditions of plaintiff's employment not only

provided the time and place for the assault upon her, but actually contributed to an increase in the

risk of attack. The early morning hour at which plaintiff was required to report to work and the

location of the company parking lot in the vicinity of an area of known criminal activity provide

the causal connection with her employment… For the foregoing reasons, plaintiff's injury was

clearly the result of an accident within the purview of the Workers' Compensation Act.”

However, some courts have found that regardless whether the assailant is a co-worker,

supervisor, or an unaffiliated person, sexual assault is a hazard to which an employee is equally

exposed apart from his/her employment. Therefore, injuries from such assaults did not arise out of

employment. See Murphy v. ARA Services, 164 Ga. App. 859, 298 S.E.2d 528 (1982); Kennedy v.

Pineland State Bank, 211 Ga. App. 375, 439 S.E.2d 106 (1993).

The Positional Risk Doctrine

In Sturgess v. OA Logistics Svcs, 336 Ga. App. 134, 784 S.E. 2d 432 (2016), the Court of

Appeals focused its analysis on whether the injured worker’s death “arose out of” his employment

and applied the positional risk doctrine to address the compensability of a fatal assault committed

by a third party. In this case, after the employee was shot in an unprovoked attack by a co-worker

with a criminal record, the mother of the decedent brought a wrongful death claim for negligent

hiring against the staffing agency involved. The Court of Appeals imposed the exclusive remedy



provisions of the Act to deny the wrongful death claim on the ground that the death of the injured

worker “arose out of his employment under the positional risk doctrine.”

Citing Chaparral Boats, Inc. v. Heath, 269 Ga. App. 339, 342 (1) (2004), the Court noted

that “even where the risk which caused the injury to the employee is common to the public at

large — and therefore not peculiar to the employment — the injury arises out of the

employment if a duty related to the employment placed the employee in a locale which

exposed the employee to the common risk.”

The odd facts of Sturgess also illustrate just how difficult it can be to predict the outcome

of such cases. In Sturgess, the assailant, Christopher Lema, had applied for his job using an alias

and the required criminal background check was not completed before he started work. On the

day of the shooting the victim, a forklift driver named Nickifor Zephyrine, had run out of fuel and

was directed to wait outside an office area for a supervisor. As he stood with his back turned,

Lema entered the office behind him and proceeded to forcibly kiss a female office worker who

refused his advances. Lema then exited the office, produced a handgun, shot Zephyrine in the

back of the head, and re-entered the office to resume the sexual assault. During the ensuing struggle

he inexplicably passed out and the female employee made her escape. According to the female

employee, although Zephyrine happened to be a family friend, he had been unaware of the assault,

had not tried to intervene, and had not interacted with Lena prior to the incident.

Parsing the Court of Appeals decision in Sturgess is all the more challenging because just

the previous month, on February 15, 2016, the same three judge panel had found in favor of the



decedent’s mother and overturned the trial court’s summary judgment ruling to hold that the

exclusive remedy bar did not apply and the trial court had erred by ruling that Zephyrine's death

arose out of his employment. Sturgess v. O.A. Logistics Svcs et al, A15A2139 (2016 Ga. App.

LEXIS 67, Feb. 15, 2016). In that earlier decision (which the court unanimously reversed without

comment on a Motion for Reconsideration) the Court of Appeals held that while it was “beyond

dispute that Zephyrine's death arose in the course of his employment because it occurred while he

was on duty performing his job functions at his employment location,” it did not arise out of his

employment because

the record is devoid of any connection between the attack and Zephyrine’s work or workplace. Contrary to cases where a violent attack was connected with an employee’s required presence in a high crime area, a dark parking lot at unusual hours, or a high-risk area late at night, Zephyrine’s work did not require him to be in a location that heightened his risk of injury or criminal attack. [Cits omitted].

In support of this analysis, the Court compared the circumstances of Zephyrine’s murder

with those giving rise to Burns Intern. Sec. Services v. Johnson, 284 Ga. App. 289, 643 S.E.2d 800

(2007). In that case the Court of Appeals reversed the trial court and granted summary judgment

to the employer to find the exclusive remedy applied to bar a wrongful death claim by the family

of a security guard who was required to work alone and at night and was killed while guarding a

vacant property that was known to be inhabited by vagrants and transients in a high-risk area. As

the Court explained further in Burns, “Under these circumstances, ... the conditions of [Ms.

Johnson's] employment did not merely provide the time and place for the assault upon her, but ...

the same increased the risk of the attack and subjected her to a danger peculiar to the employment.”

Burns, supra 284 Ga. App. at 292.

In support of its conclusion that there was insufficient causal connection between



Zephyrine’s employment and the shooting that caused his death, the Court of Appeals cited

Kennedy v. Pineland State Bank, 211 Ga. App. 375, 376, 439 S.E.2d 106 (1993), where it was held

that an employee who was sexually assaulted by her bank manager could sue in tort because the

risk of such sexual assault “was not in any way connected with the Employee's fulfillment of her

responsibilities of employment.” 2016 Ga. App. LEXIS 67 , *6 at p. 4.

Before reversing itself on the Motion for Reconsideration, the Court of Appeals squarely

rejected application of the positional risk doctrine and found Zephyrine’s death unrelated to his

employment, thereby reversing the lower court’s grant of summary judgment and permitting the

family to sue in tort. In rejecting application of the positional risk doctrine to the facts of

Zephyrine, the three-judge panel plainly stated that

in cases where employees are injured while traversing dark parking lots or high crime areas because of their employment, it makes sense that resulting injuries are connected to their employment — even if caused by third-party criminal acts. Here, by contrast, there was no high-crime element to this particular workplace locale, nor was there any discernible risk of theft or robbery associated with this workplace. The risk of a random attack was no more heightened at Zephyrine's workplace than at any other place. Therefore based on the undisputed facts before us, the positional risk doctrine does not demonstrate that Zephyrine's death arose out of his employment at the OA warehouse. [Cits omitted]. 2016 Ga. App. LEXIS 67, *8 at p. 5.

Just several weeks later the same judges reversed themselves to hold that “a causal

connection to Zephyrine’s workplace does exist despite the seemingly random nature of the attack

on Zephyrine.” Sturgess, supra 336 Ga. App. at 137. In coming to this conclusion, the Court

applied the rationale as stated in Chapparal Boats, Inc. v. Heath, 269 Ga. App. 339, 606 S.E. 2d

567 (2004), a whole-court opinion analyzing the positional risk doctrine, which explained that

the positional risk doctrine ... holds that the risk does not have to be peculiar to the



employment where a causal connection between the employment and the injury is otherwise established by evidence that a condition of the employment required the employee's presence at a location and a time where the employee confronted the risk. However, the doctrine also remains consistent with the rule that an injury arises out of the employment only when it is "peculiar" to the employment in the sense that there must be a causal connection between a condition of the employment and the injury. [Our cases] make this clear by stating explicitly that the positional risk doctrine does not apply where the risk which causes the employee's injury is also common to the general public without regard to such conditions, and occurs independently of place, employment, or pursuit. Although an injury arises out of the employment under the positional risk doctrine if it would not have occurred but for the fact that the conditions and obligations of the employment placed claimant in the position where he was injured, this does not mean that every injury which occurs while an employee is located somewhere at work necessarily arises out of the employment. Where the injury would have occurred regardless of where the employee was required to be located, and results from a risk to which the employee would have been equally exposed apart from any condition of the employment, there is no basis for finding a causal connection between the employment and the injury, and no basis for compensation under the positional risk doctrine. The general rule still applies that the injury does not arise out of the employment where the causative danger is not " peculiar to the work" in a way that causally connects the employment to the injury. Sturgess v. OA Logistics Servs., Inc., 336 Ga.App. 134, 137-38, 784 S.E.2d 432, 436-37 (Ga. App., 2016) (Citing Chaparral Boats, Inc. v. Heath, 269 Ga.App. 339, 341(1), 606 S.E.2d 567 (2004) (whole court).

If Sturgess tells us anything beyond the fact that a judicial decision is not binding until all

motions for reconsideration and appeal have been exhausted, it is that some facts give rise more

easily than others to holdings that the positional risk doctrine applies (See Burns, Helton, and

Wright, supra), while others are more widely susceptible to contradictory interpretation.

Idiopathic Injury and the “arising out of” analysis

Inconsistent and confusing court rulings have made it very difficult to determine if an

idiopathic injury arose out of the employment. So, what does that have to do with determining

whether an injury from workplace violence arose out of employment?



The fact pattern of an idiopathic injury and legal analysis of standards of review in the

recent case of Cartersville City Schools v. Johnson, 345 Ga. App. 290, 812 S.E. 2d 605 (2018)2,

make it a must read for the workers’ compensation practitioner. Yet, what is pertinent in the

discussion of injuries from workplace violence is the Court of Appeals analysis of “arising out of.”

In Johnson a school teacher fell in the classroom injuring her knee and the Administrative Law

Judge granted her claim for benefits, but the Appellate Division reversed, holding that she had

suffered an idiopathic injury instead. The Superior Court of Bartow County reversed, and the

school district appealed. In upholding the Superior Court's finding of compensability, the Court

of Appeals explained that:

[W]here the Appellate Division erred, due in large part to the quagmire in the area of the law, is in interpreting and applying what the Georgia Supreme Court and our Court have meant in holding that injuries do not arise out of employment where they “cannot fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which the workmen would have been equally exposed apart from employment.

(emphasis in original). (Citing Fried v. U.S. Fidelity & Guaranty Co., 192 Ga. 492, 15 S.E. 2d 704 (1941)).

The court held that the determination of whether an injury arises out of the employment

should not be dictated by the theoretical possibility that the employee could “be exposed to

a hazard outside of work that mirrors that which he or she must face while at work.” But

rather “the focus should be on the casual link between the injury and the employee’s work-

related conditions or activity.” Id. at 296.

2 The Georgia Supreme Court denied the certiorari petition on October 9, 2018.



“To be a compensable injury that arises out of employment, the injury must either be

caused by activity the employee engaged in as part of his or her job, or the injury must result

from some “special danger of the employment.” (Citing U.S. Casualty Company v. Richardson,

75 Ga. App. 496, 43 S.E. 2d 793 (1947)).

In the course of…

An injury “in the course of” employment relates to the time, place, and circumstances

under which the accident takes place. The accident must occur within the period of

employment at a place where the employee may reasonably be in the performance of his/her

duties, and while fulfilling those duties, or engaged in doing something incidental thereto.

Hadsock v. J.H. Harvey Company, Inc., 212 Ga. App. 782, 442 S.E. 2d 892 (1994) (quoting

General Fire Y Casualty Company v. Bellflower, 123 Ga. App. 864, 182 S.E. 2d 678 (1971)),

Amedisys Home Health, Inc. v. Howard, 269 Ga. App. 656, 605 S.E. 2d 60 (2004).

In General Fire & Casualty Company v. Bellflower, a bus driver was shot and killed while

walking back to his hotel from a meal. He was not actively working at the time, but the driver was

on call. The assailant was a stranger and there was no personal or employment related motive for

the attack. The deceased’s widow sought death benefits under the Act. The Court of Appeals

found that it was the employment that placed the deceased in a dangerous area where he was

exposed to the likelihood of assault while walking back from his meal.



The Court found that while there was no readily apparent causal connection between his

employment and the assault, there was the existence of some causal connection between the

conditions of employment and the injury. As a result, the claimant’s injuries were deemed

compensable and benefits were awarded. In this regard, the reasoning applied in Bellflower is no

different than that found in Burns, Helton, and Wright discussed above; all cases where it is

relatively obvious that the nature of the claimant’s work placed them in specific and identifiably

heightened risk of assault or other violent crime.

In analyzing whether a violent assault occurred in the course of employment, the Courts

have extended the “place of employment” to include the employer’s parking lot when an employee

is arriving or departing from work. Dawson v. Wal-Mart Stores, 324 G.A. App. 604, 751 S.E.2d

426 (2013); Helton v. Interstate Brands Corp, 155 Ga. App. 607, 271 S.E. 2d 739 (1980); Macy’s

South v. Clark, 215 Ga. App. 661, 425 S.E. 2d 530 (1994).

Assaults by co-workers – who was the aggressor?

Generally speaking “if the injured employee was not the aggressor in the altercation in

which he was injured, and if the altercation is a work-related one, then the injury is

compensable.” Douglas T. Lay, Kissiah and Lay's Georgia Workers’ Compensation Law, 4th Ed.

at § 5.16[4] (emphasis added), citing McLaughlin v. Thompson, Boland and Lee, Inc., 72 Ga. 564,

34 S.E.2d 562 (1945) and Southern Wire & Iron, Inc. v. Fowler, 217 Ga. App. 727, 124 S.E.2d

738 (1962).



Under O.C.G.A. §34-9-17(a), “no compensation shall be allowed for an injury or death due

to the employee’s willful misconduct, including intentionally self-inflicted injury, or growing out

of his or her attempt to injure another.” In cases where the injured employee is found to be the

initial aggressor, the injury will not be deemed an accident arising out of the employment within

the meaning of the Act. Liberty Mutual Ins. Co. v. Reed, 56 Ga. App. 68; 192 S.E.2d 325 (1937);

American Fire & Casualty Co. v. Gay, 104 Ga. App. 840, 123 S.E. 2d 287 (1961).

In Reed, the employee was a former union member that continued to work after other union

members went on strike. On his way to work, the employee’s taxi was stopped by striking union

members. He fired a shot into the angry crowd and was subsequently killed by a shot fired back

in response. His widow filed for death benefits. The Court of Appeals denied her claim. While

the Court held that the employee’s death was causally connected with the employment, the injury

was not compensable since he initiated the altercation by firing his weapon into the crowd.

As explained long ago in Farmers Mfg. Co. v. Warfel, 144 Va. 98, 101 (Va, 1926), the

rationale for denying benefits to the aggressor in the context of a workplace altercation is that, “in

such cases the proximate cause of the injury is not the employment, but the fault of the

claimant.” In other words, if an employee is at fault in causing a fight and is injured during the course

of that fight, those injuries do not “arise out of” the aggressor’s employment because the injuries were

not proximately caused by the employment, but instead were “the fault of the claimant.”

While determining who is the aggressor is a fact intensive inquiry, it is one that can be

informed by relevant statutes. For example, pursuant to O.C.G.A. § 16-3-21(b) (3) if a person

“withdraws from [an] encounter and effectively communicates to such other person his intent



to do so and the other, notwithstanding, continues or threatens to continue the use of unlawful

force” then the person who has withdrawn from the encounter” is justified in using force to

defend himself.

Similar insight can be brought to bear by examining the rules and rationale governing what

constitutes “fighting words” in Georgia and how that term is incorporated into the State’s disorderly

conduct statute, O.C.G.A. § 16-11-39(a)(3), which provides:

A person commits the offense of disorderly conduct when such person ... [w]ithout provocation, uses to or of another person in such other person’s presence, opprobrious or abusive words which by their very utterance tend to incite to an immediate breach of the peace, that is to say, words which as a matter of common knowledge and under ordinary circumstances will, when used to or of another person in such other person's presence, naturally tend to provoke violent resentment, that is, words commonly called “fighting words.”

In Delaney v. State, 267 Ga. App. 377, 599 S.E.2d 333 (2004) an agitated motorist pulled

behind a marked police car and began blowing his horn before he exited his vehicle, approached the

officer “screaming and throwing his hands in the air” and engaged in other “loud and obnoxious”

behavior. Id at 378. In reversing Delaney’s conviction for disorderly conduct, the Georgia Court of

Appeals found that Delaney’s utterances did not contain “words which as a matter of common

knowledge and under ordinary circumstances ... naturally tend to provoke violent resentment.”

Id.

If such loud, obnoxious, aggressive, and confrontational behavior was not found to be conduct

that “naturally tend[s] to provoke violent resentment,” that might help inform whether similar

behavior on the part of a claimant or co-worker is found to make them the aggressor or not.



To the extent the doctrine of “fighting words” still animates Georgia jurisprudence, it can

reasonably be said that “fighting words” are those which “by their very utterance inflict injury or

tend to incite an immediate breach of the peace.” Chaplinsky v. New Hampshire, 315 U.S. 568,

572, 62 S.Ct. 766, 769 (1942).

Like beauty, who is the aggressor is often in the eye of the beholder. One out-of-state case

that illustrates this principle well is Knocks Metal Package Corporation, 231 N.Y. 78, 131 N.E. 741

(1921). In Knocks, a foreman called an “employee’s attention to a machine and charged him with

responsibility for its defective operation; whereupon the employee called him a liar, and immediately

the foreman struck the employee, breaking his eyeglasses and injuring his eye; and it was held that

this injury was an accidental injury arising out of and in the course of the employment, within the

meaning of section 3 of the workman's compensation law (Consol. Lanes, N.Y.C. 67), and that the

use of the irritating words by the employee was no justification for the assault by the foreman,

whose act was held not a personal act as distinguished from an act within his employment.” (emphasis

added).

Compare this holding to that of Kimbro v. Black & White Cab Co., 50 Ga. App. 143, 177 S.E.

274 (1935) where workers' compensation benefits were denied to a taxi driver injured in a fight with

another driver over who was in line first to receive the next fare. In this 1935 case, the Court of

Appeals held that “that claimant put in motion the difficulty from which he received his injury, and

that he called the other driver a “---- liar. ” Kimbro, supra 177 S.E. at 275. What adjective was used

is left to the imagination, but whatever it was the court felt justified in denying benefits on the ground

that the uncouth claimant was the aggressor. Also, where a dishwasher repeatedly taunted a cook



threatening to tell the employer that the cook had been late for work, and where the cook retaliated

by striking the dishwasher with a cleaver, the Court of Appeals upheld a finding of non-

compensability because the injury resulted not only from personal difficulties between the two

employees but also because the dishwasher had provoked the attack by the statements he had made.

Hartford Acc. & Indem. Co. v. Zachery, 69 Ga. App. 250, 25 S.E.2d 135 (1943).

It is useful to note an important exception to the aggressor rule. Where “the claimant’s active

intervention was due to what he reasonably thought was necessary to protect his master’s property

from injury . . . and that in doing so he used no more force than was necessary he would be entitled

to compensation.” (emphasis in the original). Scott v. Travelers' Ins. Co., 49 Ga.App. 157, 174

S.E. 629 (1934).

Origins of the altercation - personal or non-personal assault? The fact-finder must also make a determination of whether the assault arose out of

employment activities or reasons personal to the employee. If the animosity giving rise to the

assault stemmed from reasons not related to the injured employee’s work performance, then his/her

injuries will not be deemed compensable. Lindsey v. Winn Dixie Stores, Inc., 186 Ga. App. 867,

868, 368 S.W. 2d 813 (1988). Western Waterproofing Company, Inc. et al v. Rogers, 204 Ga.

App. 799, 420 S.E. 2d 606 (1992); Wright v. City of Cochran, 253 Ga. App. 314, 558 S.E. 2d 844

(2002).

O.C.G.A. §34-9-1(4) excludes any injury “caused by the willful act of a third person

directed against an employee for reasons personal to such employee.” (emphasis added).



In the City of Atlanta v. Shaw, 179 Ga. App. 148, 345 S.W. 2d 642 (1986) injuries that

resulted from an altercation at work were held non-compensable because the subject matter of the

dispute was deemed entirely personal to the injured worker, where the employees were arguing

over the injured worker’s use of a telephone for entirely personal calls. Additionally, it was also

uncontroverted in Shaw that there was a history of personal animosity between the injured

employee and her co-worker that preceded the physical fight in the workplace. The Court of

Appeals found the claimant was not performing "tasks required by or incidental to her

employment" at the time she sustained her injuries and her claim was therefore not compensable.

In Lanier v. Brown Brothers, 44 Ga. App. 831, 163 S.E. 2d 263 (1932), a homicide occurred

at the workplace, but stemmed from a quarrel between the wives of both co-workers. The Court

found that the shooting was caused by a willful act of the person doing the shooting for reasons

personal to that employee, and therefore, not compensable.

Nevertheless, in cases where an employee is injured in a physical altercation with another

person occurring on the job but stemming from personal animosity, his/her injuries will be

considered compensable under the Act if it is shown that the animosity initially arose from reasons

related to the employee’s performance of the work-related duties. Baldwin v. TR, 212 Ga. App.

546, 442 S.E. 2d 272 (1994).

For example, where a garage employee was shot and killed by a customer who became

angry when the employee refused to perform additional vehicle repairs, the court found that the

worker’s death occurred within the course and scope of his employment and benefits were

awarded. Keen v. New Amsterdam Cas. Co, 34 Ga. App. 257 (1925).



In an altercation between a supervisor and a subordinate that was the result of the

supervisor’s reprimand regarding the employee's job performance the assault was found to be

related to the employee's job duties and found compensable. State v. Purmort, 143 Ga. App. 269,

238 S.E.2d 268 (1977).

The random or neutral assault

The Georgia Court of Appeals addressed the issue of seemingly random assaults in Hulbert

v. Domino’s Pizza, 239 Ga. App. 370; 521 S.E. 2d 43, (1999). Hulbert was working as a delivery

driver for Domino’s Pizza. When he saw blue lights flashing behind him, he pulled his delivery

vehicle to the side of the road. Hulbert was approached by an unknown individual who stated,

“take this.” Hulbert was then doused with gasoline and set on fire. He sustained severe burns and

sought workers’ compensation benefits.

Hulbert’s attackers were never found, and the employer/insurer denied the claim on the

ground that it did not arise out of employment because either A) it was an act of revenge personal

to Hulbert, or B) was self-inflicted. Id at 371.

In support of the first theory, the employer/insurer offered specific facts to suggest that the

attack may have been carried out in revenge against Hulbert for a crime he was convicted of

committing five years earlier. Id. Hulbert himself even told police that he suspected this. As to

the second theory—that Hulbert immolated himself—the employer/insurer offered testimony of

the investigating police officer. Id. However, despite the specific evidence offered by the

employer/insurer, the Court of Appeals still held that “Nothing in our workers' compensation law



requires that, as part of [their] burden an employee must disprove all possibilities that the injury

did not arise out of and in the course of his employment. The theories which Domino's argued as

part of Hulbert’s burden to prove that his injuries arose out of his employment are really affirmative

defenses and not part of a claimant's initial burden.” Id at 372.

Hulbert’s claim was found compensable because—notwithstanding the arguments of the

Employer/Insurer — the evidence showed that he worked in a high crime area and that fellow

Domino’s drivers had been subjected to rocks being thrown at their vehicles. The Court of

Appeals found that the claimant was returning to Domino’s after delivering a pizza and was injured

as the result of an unprovoked attack by an unidentified person for unknown reasons. Specifically,

the Court based its finding on the fact that, “the conditions of Hulbert's employment did not merely

provide the time and place for the assault, but increased the risk of attack, and subjected him to a

danger peculiar to his employment.” While not directly analyzing this case under the positional

risk doctrine, the court essentially found that the claimant’s employment, by its very nature, put

him at risk of the injuries he sustained.

Physical vs. psychological injuries Because psychic injury is often a byproduct of violent crime, it is important to examine the

standard for assessing the compensability of psychic injuries as set forth in Southwire Company v.

George, 266 Ga. 739, 470 S.E. 2d 865 (1996).

In Southwire, a truck driver suffered multiple injuries when his tractor trailer hit a

passenger vehicle that ran a stop light. The driver of the other vehicle was thrown from the vehicle,



and a female passenger was killed instantly. Two months later the claimant was released to return

to full duty work by his authorized treating physician. While his physical injuries had healed, the

driver continued to treat with his psychiatrist for post-traumatic stress disorder. The

Administrative Law Judge denied benefits for the psychiatric disability resulting from the psychic

trauma. The Court of Appeals reversed and held: “George’s mental disability was brought on by

a compensable accident in which he was physically injured. Although the physical injury is not

the cause of his mental disability, it is the reason for its continuation.” The Supreme Court held

that a claimant is entitled to benefits under the Act for mental disability and psychic treatment,

which, while not necessarily precipitated by a physical injury, arose out of an accident in which a

compensable physical injury was sustained, and that injury contributes to the continuation of the

psychic trauma.

While an administrative law judge might find that the preponderance of the competent and

credible evidence supports a finding that the claimant suffered a psychological injury, it might be

less clear whether the claimant also suffered a compensable physical injury and whether the

physical injury contributes to the continuation of the psychological trauma.

This has led to some arguably harsh results. For example, in 1994, historic floods forced

decayed corpses out of their caskets and a City of Albany employee was required to handle the

bodies during recovery efforts. The claimant had no physical injury but suffered from ongoing

psychological trauma. Given that there was no physical injury, the Court denied compensation

benefits. Abernathy v. City of Albany, 269 Ga. 88, 495 S.E. 2d 13 (1998).



A similar ruling was handed down in W.W. Fowler Oil Co. v. Hamby, 192 Ga. App. 422,

385 S.E. 2d 106 (1989), where a convenience store clerk was robbed at gunpoint. The gun was

held to her head, but there was no physical harm. The Court of Appeals considered whether the

touching of the employee’s head with the gun, without any physical injury, was a sufficient

discernible physical occurrence to support a claim for compensation, and determined that it was

not, because a discernible physical occurrence means a physical injury or harm, not merely a

touching.

In a special concurring opinion in Southwire, Justice Sears wrote that “It is time for this

Court to join the majority of courts that have freed the right to recover for a legitimate mental

injury from the arbitrary requirement that that injury be accompanied by a physical injury.”

Exclusive remedy Depending on the facts, the remedies for an employee injured by workplace violence may

be limited.

According to O.C.G.A § 34-9-11(a), “The rights and remedies granted to an employee by

this chapter shall exclude all other rights and remedies of such employee … at common law or

otherwise, on account of such injury, loss of service, or death; provided, however, that no employee

shall be deprived of any right to bring an action against any third-party tortfeasor, other than an

employee of the same employer ….”

The concept of exclusiveness of remedy is "a rational mechanism for making the

compensation system work in accord with the purpose of the Act". Massey v. Thiokol Chemical



Corporation, 368 F. Supp. 668 (S.D. Ga. 1973) (citing Mullarkey v. Florida Feed Mills, Inc., 268

So. 2d 363 (Fla. 1972)).

In Hadsock v. J.H. Harvey Company, Inc., 212 Ga. App. 782, 442 S.E. 2d 892 (1994), the

employee was killed during an armed robbery. His father pursued an action in tort contending that

the employer’s negligence led to his son’s death. Citing General Fire Y Casualty Company v.

Bellflower, 123 Ga. App. 864, 182 S.E. 2d 678 (1971), the Court denied the plaintiff an action in

tort on the grounds that the single question for determination was whether there was a causal

connection between the employment and the employee's death.

A tort action for injuries sustained in another robbery was also barred by the exclusivity

provision in Boulware v. QuikTrip Corp, 226 Ga. App. 399, 486 S.E. 2d 662 (1997). In fact, as

we have seen in Sturgess v. OA Logistics Svcs, discussed at length above, it is often the case that

judicial rulings of compensability in crime victim cases arise not because the crime victim (or their

family) is seeking compensation, but, rather, because they have decided to sue in tort.

Paradoxically it is often the Employer who seeks to have the claim ruled compensable and thus

bar the more significant recovery that might otherwise be available to the victim or their surviving

family should they prevail in tort.

In Dawson v. Wal-Mart Stores, Inc., 324 Ga. App. 604, 751 S.E. 2d 426 (2013), an

employee was kidnapped from the employer’s parking lot and subjected to prolonged physical and

sexual assault by a stranger. The Court of Appeals agreed that this was a random violent act that

occurred because the employee was in that location at that hour solely because of her employment.



Once again, an employee’s negligence claim against an employer was precluded by the exclusive

remedy provision.

Third-party tortfeasor In Smith v. Ellis, 291 Ga. 566, 731 S.E. 2d 731 (2012), the Court took up the issue of whether

an injured employee, after settling a disputed workers’ compensation claim on a no-liability basis,

can later sue the co-worker who caused his injury.

Co-workers Smith and Ellis were employed by a home builder. During business hours they

met to shoot guns at an undeveloped neighborhood site that was owned by their employer. Ellis

began firing his rifle while Smith organized his work tools next to his truck. Ellis’ rifle jammed

three times and in the process of clearing the ammunition he accidentally shot Smith in the thigh.

Smith filed a workers’ compensation claim against his employer alleging that his injury

was compensable because it arose out of and in the course of his employment. His employer

agreed to settle on a “no liability” basis. Smith later sued Ellis for negligence. Smith maintained

that because he settled his claim on a “no liability” basis, his injury was not compensable under

the Act and therefore, the exclusive remedy provision did not apply.

Citing O.C.G.A § 34-9-15(b), the Supreme Court noted, “When [a] settlement has been

agreed upon and approved by the Board, it shall constitute a complete and final disposition of all

claims on account of the incident, injury, or injuries referred to therein.” Smith, 291 Ga. 571. Thus,

once an employee settles under § 34-9-15(b), he has exercised one of the rights and remedies



granted to an employee by the Act, and therefore is barred from pursuing a claim for the same

injury against anyone except a third-party tortfeasor. The Court went on to reason: “An employee

may not file a workers’ compensation claim against his employer alleging that he suffered a

compensable injury; reach a settlement with the employer to obtain compensation; avail himself

of the right and remedy granted by the Act to seek and obtain the Board’s approval of the

settlement, thereby resolving the case; and then turn around and sue the employer or an employee

of the same employer now alleging that the injury was not compensable, hoping that the court will

disregard the prior resolution of the case, deeming the injury not compensable under the Act, and

allow a second recovery.” Smith, 291 Ga. at 571-572.

However, Smith did prevail using the more persuasive argument that, at the time of the

shooting, Ellis was not acting in his capacity as a fellow employee but rather he had stepped away

from his employment and should be considered a “third-party tortfeasor.” The Supreme Court held

that, “Taking the phrase ‘employee of the same employer,’ out of its statutory context would render

all employees who work for the same employer immune from suit in cases far removed from their

workplace and entirely unconnected to their employment or their employment-related dealings

with fellow employees.” Smith, 291 Ga. at 573. The Supreme Court went on to reason that, “As

long as the plaintiff happened to be employed by the same employer and working at the time of

the injury, it would make no difference whether the co-employee defendant was at work, off duty,

or even on vacation when the injury occurred.” Id. Therefore, because Ellis was not acting in the

course of his employment when he shot Smith, he should not be afforded the protections of the

Act’s exclusive remedy provision. Consequently, the Supreme Court allowed Smith to go forward

with the lawsuit against Ellis.



Representing the victim of a crime

First and foremost – Empathy.

Empathy is the capacity to understand and respond to the unique experiences of another person.

Unless you actually have the academic degrees, you are not expected to be a mental health

professional, but it is imperative that those representing a crime victim be empathetic. Maybe you

cannot fully put yourself in the victim’s position, but you must be sensitive to their feelings,

thoughts and experiences.

Certain emotions are a natural byproduct for the victim of a violent crime – shock, denial,

disbelief, anger, distress, frustration, and fear. These emotions can last for days, weeks or even

years. The victimization can impact the victim’s occupational and interpersonal functioning,

including parenting and decrease a victim’s sense of life-satisfaction and well-being. The stress

from the physical trauma might reveal itself in many ways including insomnia, flashbacks,

memory issues, angry outbursts, or changes in appetite or blood pressure. These symptoms may

also last well past the healing of the more obvious physical wounds caused by the violence. For

some, the unrelenting stress from the event will lead to a diagnosis of post-traumatic stress disorder

(“PTSD”).

One coping method is to avoid situations and places that remind the victim of the violent

events. This can be particularly problematic for the victim who was hurt on the job. It is therefore



important to create an environment in which the victim feels safe and supported. Victims need to

have trust and confidence in their legal team and feel safe in their surroundings.

Although there does not appear to be any cases on point addressing this particular issue,

one can well imagine a claim where an injured worker has recovered fully from a physical

standpoint, but has been restricted from returning to the original employer for psychiatric reasons.

In such cases, where the individual has not returned to any work, it would be reasonable to assume

that benefits would continue to be awarded.

Allow the victim to tell you in his/her own way what happened in his/her own words and

at his/her own pace. All of the details, even critical ones might not come out in your first meeting.

Remember that the perpetrator took control of the victim’s life. If possible, allow the victim to

choose when and where to talk and provide the necessary professional psychological support for

the injured worker/victim if it is within your means to do so.

Listening and validating the experiences and emotions of victims of violent crime who also

happen to be workers' compensation claimants is essential to help the victim reconstruct and

process what has happened.

Be encouraging when you speak with the victim, but not unrealistic. Choose your words

carefully so that statements will not be construed as judgmental or that somehow you are blaming

the victim for what happened. While well-meaning, your comments might inadvertently serve to



re-victimize the victim (The injuries victims suffer when they do not receive adequate support,

help or understanding are referred to as “secondary injuries.”).

Absolutely do not compare the victim’s experience with similar ones – other clients, your

own, something you saw on the news… The victims are individuals as are their crimes and their

reactions to them.

Be mindful of your helpful suggestions. Your client had no control over being victimized.

The road to healing requires a victim-centered, collaborative approach and that begins at regaining

control, including the control of the decisions about their litigation.

While the financial recovery is important, to some victims it is the successful prosecution

that allows them to move on with their lives. Therefore, if you are representing a victim in a civil

action, educate yourself on the interplay between your case and that of the prosecution.

The victim is potentially interacting with multiple medical providers. The medical

providers will be noting the patients’ history of the events. Be aware that depending upon the

provider and the emotional state of the patient on any given day, the recorded medical notes might

not paint a consistent and full portrait of the events of the crime and resulting injuries.

The crime victim is also likely to be speaking with multiple attorneys – those handling the

workers’ compensation claim, any tort claim and of course, the criminal prosecution. Whether

under oath or not, each attorney will be asking in exhausting detail about the crime, the events



leading up to it and the resulting injuries. Inevitably there will be some minor and maybe even

major discrepancies between the statements.

While it is beyond the scope of this paper to provide an exhaustive analysis of the myriad

ethical and professional conduct issues that may arise in workers’ compensation cases where there

is an active criminal investigation or prosecution, all attorney's must be mindful of the restrictions

imposed by certain rules of professional conduct. For example, Georgia Rule 4.2 governing

communications with persons represented by counsel holds that:

A lawyer who is representing a client in a matter shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or court order. Imagine a situation where a claimant has been the victim of assault by a co-worker and the

defense of the employer/insurer rests on their assertion that the assault was strictly personal

to the employee. Where the crime has not been adjudicated and the assailant is represented

in the ongoing criminal case by legal counsel it may not be proper to depose the individual

despite the fact that one could plausibly argue that the “matter” at issue in the workers'

compensation claim is not the same “matter" as the crime being prosecuted. Because

criminal defendants have the right to invoke the Fifth Amendment to the U.S. Constitution

against self-incrimination, questioning a criminal defendant about the particulars of a crime

they are alleged to have committed when you know they are represented by counsel could

be deemed an ethical violation.

There are additional concerns that may arise governing statements made by the crime

victim him/herself. That is because when there is concurrent prosecution you should be aware that



prosecutors are under a duty to deliver to the defense ALL information relative to the case to ensure

due process for the defendant. In Brady v. Maryland, 373 US 83, 10 L.Ed.2d 215, 83 S.Ct. 1194

(1963), the U.S. Supreme Court held that where the prosecution does not deliver to the defense

ALL statements of the witnesses of which it is aware, the defendant’s right to due process has been

violated, regardless of good or bad faith. Further, in Kyles v. Whitley, 514 US 419, 115 S. Ct.

1555, 131 L.Ed.2d 490 (1995), the U.S. Supreme Court held that even where the prosecutors are

unaware of the existence of a witness statement or other evidence that may benefit the accused,

constitutional error results and the defendant would be entitled to a new trial.

Therefore, in cases where there is an active criminal prosecution it may be important to

advise your client to confer with the prosecutor or their staff prior to being deposed in the workers'

compensation claim. This could be particularly important because under O.C.G.A. §24-6-613, the

victim may be confronted during the criminal trial with any prior inconsistent statements. Since

prosecutors must prove the criminal charges beyond a reasonable doubt, virtually any

inconsistency has the potential to damage the victim’s credibility and decrease the prosecutor’s

chances of a successful prosecution.

Mediating claims involving a crime victim

The mediation of any dispute provides an inexpensive alternative to litigation. In the case

of a crime victim, mediation is particularly attractive. Since the decision-making process is in the

victim’s hands, the mediation can be empowering, but perhaps, most important is that the details

are confidential.



In a recent article in the Georgia Defense Lawyer, attorney Terrence Lee Croft emphasized

that you should not waste the opportunity to make an opening statement in mediation. The authors

of this paper agree with Mr. Croft; however, when a participant is the victim of a crime, we urge

that if you make an opening statement, take extra care in planning your remarks. You don’t want

to re-victimize the victim or jeopardize your chances of success by poor word choices at the outset.

When selecting your mediator, focus on his/her ability to be “relatable” to the victim.

Again, we highlight “empathy.” Take the opportunity, in advance, to educate your mediator of

the special circumstances involved.

As a mediator, if you are asked to mediate with a crime victim, you too, must take into

consideration the sensitive nature of the dispute. Hone your skills and attitudes to recognize,

respect and respond to the victims’ needs. You don’t want to inadvertently re-victimize the victim

either. Your neutrality remains paramount, but a softer approach and demonstrable understanding

will go a long way in assisting the parties to reach a resolution. If the facts of the crime make you

uncomfortable or a kinder, gentler approach is outside your skill set, you might want to decline

conducting the mediation.

CRIME VICTIMS’ BILL OF RIGHTS

Background

It was not until the early 1990’s that Georgia law permitted a crime victim to make an

impact statement in the sentencing process. While Georgia did have a Crime Victims’ Bill of

Rights, it had little substance and lacked guidance on how to implement those rights. That changed



in 2010 with the passage of a bill that was modeled largely after the 2004 federal victims’ rights

statute.

So, why did it take Georgia so long? Elected officials and vocal constituent groups were

certainly in favor, but the devil was in the details. The difficulty in passing a comprehensive bill

for the victims is that it had to be done while balancing the constitutional rights of the accused.

O.C.G.A. §17-17-1, et seq. -- The Crime Victims’ Bill of Rights

1. It provides that the victim be treated fairly and with dignity by all criminal justice agencies

involved in the case;

2. The right to reasonable, accurate, and timely notice of the arrest, release, or escape of the

accused;

3. The right to reasonable, accurate, and timely notice of any scheduled court proceedings or any

changes to such proceedings;

4. The right not to be excluded from any scheduled court proceedings, including proceedings in

juvenile court, except as provided by law and have a waiting area during those proceedings that

is separate from the accused and his/her relatives, friends and witnesses;

5. The right to be present a Victim Impact Statement at any scheduled court proceedings

involving the release, plea, or sentencing of the accused;

6. The right to file a written objection in any parole proceedings involving the accused;

7. The right to confer with the prosecuting attorney in any criminal prosecution related to the

victim and the right to refuse to submit to an interview by the accused, his/her attorney or agent;

8. The right to proceedings free from unreasonable delay; and

9. The right to restitution as provided by law.



Restitution

Restitution may be ordered to cover medical/dental bills, counseling services,

stolen/damaged property, lost wages due to the injury, crime scene sanitation, shelter, food,

clothing, and transportation.

O.C.G.A.§17-14-10 provides for the factors to be considered by the ordering authority in

determining the nature and amount of restitution:

(a) In determining the nature and amount of restitution, the ordering authority shall consider:

(1) The financial resources and other assets of the offender or person ordered to pay

restitution including whether any of the assets are jointly controlled;

(2) The earnings and other income of the offender or person ordered to pay restitution;

(3) Any financial obligations of the offender or person ordered to pay restitution,

including obligations to dependents;

(4) The amount of damages;

(5) The goal of restitution to the victim and the goal of rehabilitation of the offender;

(6) Any restitution previously made;

(7) The period of time during which the restitution order will be in effect; and

(8) Other factors which the ordering authority deems to be appropriate.

According to the Prosecuting Attorney’s Council of Georgia, the Crime Victims’ Bill of

Rights specifically applies to victims of the following crimes:

• Homicide • Assault and Battery • Kidnapping, False Imprisonment and related offenses • Reckless Conduct • Cruelty to Children • Feticide • Stalking/Aggravated Stalking • Cruelty to a Person 65 Years of Age or Older • All Sexual Offenses • Burglary • Arson, Bombs and Explosives



• Theft • Robbery • Forgery, Deposit Account Fraud, Illegal Use of Financial Transaction Cards, Other Fraud

Related Offenses, Computer Crimes, & Identity Theft • Sale or Distribution of Harmful Materials to Minors • Elder Abuse • Homicide by Vehicle • Feticide by Vehicle • Serious Injury by Vehicle

In 2018, Georgians voted to add language to the state Constitution protecting victims’

rights. This is more commonly referred to as “Marsy’s Law.” The amendment took elements of

the law already in existence and moved them into Section 1 of Article 1 of the state Constitution.

As a practical matter, very little has likely changed, but the heightened public awareness will serve

well the victims of our state.

GEORGIA CRIMINAL JUSTICE COORDINATING COUNCIL

CRIME VICTIMS’ COMPENSATION

The Criminal Justice Coordinating Council (“CJCC”) was created by the Georgia General

Assembly in 1981, as an Executive Branch agency. CJCC is legislatively charged with eleven

areas of criminal justice coordination. Among those responsibilities is to serve as the statewide

clearinghouse for criminal justice information and research; develop criminal justice legislative

and executive policy proposals; serve in an advisory capacity to the Governor on issues impacting

the criminal justice system and coordinate policy, practice, data and funding across the broad range

of state and local agencies that comprise our criminal justice system.



CJCC manages 21 funding streams and certifies funding eligibility for over 300 victim

services providers. The agency also oversees the Georgia Crime Victims Emergency Fund – which

supports the Crime Victims Compensation Program (“Victims Comp”). Over the years, the

Victims Emergency Fund has been expanded to support the Forensic Medical Exam Program, the

Forensic Interview Program, the DUI Memorial Sign Program and the Unclaimed Restitution

Program.

The Victims Comp application is straightforward and does not require an attorney. CJCC

personnel, as well as the victim-witness professionals from the prosecuting attorneys’ office are

available to assist in the application process.

In fiscal year 2018, the Victims Comp Program received 18,582 applications.

$19,820,410 was awarded to Georgia victims.

TYPES OF EXPENSES COVERED UNDER VICTIMS COMP

The program is a payor of last resort. It covers the following types of expenses, up to the

limits noted. The maximum program award is $25,000 per victim, per victimization.

• Medical Expenses: up to $15,000 • Funeral Expenses: up to $6,000 • Counseling Expenses: up to $3,000 • Lost Wage Expenses: up to $10,000 • Loss of Economic Support Expenses: up to $10,000 • Crime Scene Sanitization: up to $1,500

YOU MAY QUALIFY FOR VICTIMS COMP IF YOU…

• Were physically injured or witnessed a violent crime



• Suffered serious mental or emotional trauma as a result of being threatened or being present during a violent crime

• Were hurt trying to help a victim of a violent crime • Are the parent or guardian of someone who was killed or injured as a result of a violent crime • Depended on someone for financial support who was killed as a result of a violent crime • Are not the victim, but have been paying bills related to the crime • Have a child who was the victim and you relied on the offender for financial support, or • Were the victim of family violence and a legal dependent who relied on the offender for

financial support

REPORTING REQUIREMENTS AND FILING DEADLINES FOR VICTIMS COMP

• The victim/witness must have reported the crime to the proper authorities within 72 hours of the crime, (unless good cause is shown).

• For crimes occurring prior to July 1, 2014, an application must be filed within 1 year of the crime, unless good cause is shown (applications submitted 3 years after the crime cannot be considered).

• For crimes occurring on or after July 1, 2014, the victim/witness must file a claim within 3 years of the crime or the death of the victim. However, if the victim is a minor at the time of the victimization, he or she can file an application until 3 years after his or her eighteenth birthday. If good cause is shown, the Board may extend the time for filing a claim.

MOST COMMON COMPENSABLE CRIMES UNDER VICTIMS COMP

• Child Molestation • Cruelty to Children

• Child Abuse • Human Trafficking

• Sexual Offenses • Family Violence • Reckless Conduct

• Homicide • Homicide by Vehicle • Hit-and-Run • Serious Injury by Vehicle

• DUI Crashes • Assault/Battery • Robbery

TO APPLY

Submit a complete Victims Comp Application Packet, which includes:

• A completed application with original, legible signatures where required.



• A copy of the police/incident report from the proper investigative agency that lists the victim or witness’ name and a summary of the incident.

Mail the complete Application Packet to: Georgia Crime Victims Compensation at 104 Marietta Street NW, Suite 440 Atlanta, GA 30303. You can also register to apply online, by visiting victimscompportal.cjcc.ga.gov. For assistance in completing the application, call 404-657-2222.

LAW ENFORCEMENT OFFICERS INITIATIVE PROGRAM

Law enforcement officers risk their lives every day to protect the residents of Georgia and those

visiting our state. When an officer is killed or injured in the line of duty because of a violent crime,

the officer or his/her family members may be eligible for victims comp.

In addition to helping officers and their families access the resources available to all victims of

violent crime, the Officers Initiative Program was established to salute law enforcement for their

service. For more information and personal assistance regarding this program, please contact law

enforcement liaison, Ed Bazar, at 404.657.2194 or [email protected].

SERVICES OFFERED BY PROSECUTION-BASED

VICTIM WITNESS ASSISTANCE PROGRAMS

The following information was provided by the Prosecuting Attorneys’ Council of Georgia.

Each judicial circuit and county in Georgia is unique in population, services and resources.

Many of the services for victims in Prosecutor’s offices are legislatively mandated by Georgia law

(versus optional certification requirements) through the Crime Victims’ Bill of Rights and are

mandated for all crime victims regardless of their victimization type. The services provided in

Prosecutor offices to victims may include but are not limited to:



Stabilizing Lives: 1. Coordinate crime scene clean-up services.

2. Provide information and assistance with property return.

3. Provide referrals to and coordinate services with agencies that provide food, shelter,

support groups, medical care, and crisis/emergency intervention and long-term

therapy/counseling.

4. Provide assistance with information, application, and document collection for Crime

Victim Compensation.

5. Provide assistance with information, application, and document collection for restitution.

6. Provide assistance with other applications (TANF, Immigration, leases, etc.) and/or

other paperwork relating to acquiring services as a direct result of the crime.

7. May assist victims requesting assistance in working with bill collectors, where the

expense was a direct result of the crime or due to loss of wages as a result of the crime.

8. May assist victims with employers and/or school administrators when victims lose

wages, employment, or time as a direct result of the crime or to their cooperation

with the prosecution.

9. Provide victims with referrals to legal counsel with respect to custody, divorce or

immigration matters.

10. Provide assistance for and coordination with attorneys or Board of Immigration

Appeals certified advocates for filing T or U Visa paperwork, or a VAWA self-

petition.

Meeting Emotional/Physical Needs:

11. Provide Advocate availability, up to 24/7, for victims and law enforcement, insuring

information about options for crime victims immediately following the crime and

offer the very first emotional support & crisis intervention (homicide, aggravated

assault and domestic/family violence cases, and crisis response).

12. Assist with death notifications for families of victims.

13. Provide assistance with preparation of Victim Impact Statements.



14. Provide assistance with letters, victim impact statements, registration for Georgia

Victim Impact Panel, facilitation of/accompaniment to Visitor’s Day, clemency

hearings and executions, etc.

15. Provide follow-up services to victims at hospital facilities, coroner’s offices, and/or

funeral homes.

16. Provide personnel availability during interviews to help victims feel more comfortable.

17. Provide emotional support to the victim and family, throughout the judicial process.

18. Provide practical assistance to insure necessary court appearances of victims (e.g.

services for the disabled victims and translators).

19. Provide appropriate post-sentence referrals and intervention if needed.

20. Provide services and literature in Spanish and other languages.

Meeting Safety & Security Needs: 21. Assist victims with safety planning.

22. Coordinate communication with necessary professionals with on-going activities of the

defendant that is putting the victim in fear and/or physical jeopardy.

23. Prompt the necessary actions within the system to expedite a stage of the case for victim

protection (i.e., make the prosecutor aware that a case was dismissed in Magistrate

Court in order to initiate the indictment/bond process for protection of the victim,

or, initiate the process for probation revocation if defendant is violating the terms

and jeopardizing the safety of the victim).

24. Provide information and advocacy regarding Temporary Protective Orders (TPO).

25. Assist victims with contacting an offender’s probation or parole officer, particularly

with regard to TPO violations.

26. Assist victims with advocating for no contact constraints or stay away bond conditions.

27. Assist victims with notification requests to the county jail/Department of Corrections

regarding the defendant's release from jail.

28. Provide a comfortable waiting area apart from defendant's family and acquaintances.

Assisting with the Criminal Justice System: 29. Assist the victim and family members with understanding the process and what to

expect at each stage of the case in the system.



30. Assist the victim and family members with understanding all the legal terminology and

strategy during the processing of the case.

31. Advocate for restitution at time of sentencing (this can become part of the sentence and

if payment is not rendered, it is a probation violation).

32. Coordinate victim needs for transportation and travel that may include; air, train, bus,

auto, accommodations, and meals.

33. Assist victims with the warrant application process and attend related pre-warrant court

hearings.

34. Serve as liaison between victims and investigators, solicitor-generals, assistant district

attorneys, and court personnel.

35. Provide assistance to investigators and prosecutors with victims for initial and ongoing

contact (e.g. interviews and scheduling of these interviews).

36. Making sure contact information and the physical location of the victim is maintained

and accurate for continuation of services.

37. Provide courtroom orientation and pre-trial preparation to victims testifying.

38. Escort victims to court and related hearings.

39. Provide ongoing communication and information regarding status of the case, bond

hearings, grand jury decisions, disposition options, appellate decisions, etc.

40. Attend any hearings with victim, or on behalf of victim, in which they are not required

to be present.

41. Assist victims with making contact with the Board of Pardons and Paroles and the

Department of Corrections to request notification on the criminal being sent into

the prison system and offering avenues for opinions on early parole release.

42. Serve as VWAP in cases outside of their jurisdiction when a prosecutor’s office is

conflicted out of the case.

Education/Collaboration: 43. May serve on community activist committees, board of directors, and task forces;

acting as liaison to the prosecutor’s office and/or judicial system (i.e., shelters, rape

crisis centers, etc.).



44. Represent the office on various victims service bodies including; child fatality review,

domestic violence fatality review, elder abuse task force, domestic violence task

force, various multi-disciplinary teams, etc.

45. May serve on Victim Impact Panel as member or coordinator, holding monthly

meetings, recruiting, training and maintaining victim panel members and speakers.

46. Provide trainings to community, law enforcement, educational facilities and other

professionals on victim assistance and victim related issues including, but not

limited to family violence, identity theft, sexual assault, child abuse, teen dating

violence, elder abuse, the criminal and civil justice process, stalking, and crime

prevention.

47. Provide ongoing information and literature to educate victims about the Victim

Assistance Program, crime, and other relevant issues through pamphlets, handouts,

presentations, referrals, internet, etc.

Prosecutorial Assistance:

48. As needed, assist investigators and prosecutors with obtaining reports from DFACS,

child advocacy and assessment centers, and other agencies.

49. As needed, assist investigators and prosecutors with completing referral forms and

setting up forensic interview at child advocacy and assessment centers.

50. As needed and upon request from investigators, prosecutors, or child advocacy and

assessment center personnel, will attend forensic interviews and multidisciplinary

team meetings (MDT).

51. As needed, assist investigators and prosecutors with documentation in domestic and

family violence cases (pictures of victim’s injuries, statements, etc.).



Injuries Caused by Violence in the Workplace – Panel Participants Daniel Levitas has a unique understanding of violence. He has testified as an expert witness in American and Canadian courts since 1986. His expertise includes such areas as racist violence and the Ku Klux Klan, anti-Semitism, Holocaust denial, the Skinhead movement, Aryan prison gangs, cross burning, and the rural Posse Comitatus. His non-fiction book has earned him Pulitzer Prize and National Book Award nominations. His work has been cited in the New York Times, the Wall Street Journal, and the Chicago Tribune. He has appeared on news programs broadcast by CNN, ABC, CBS and National Public Radio, among numerous other media outlets. Levitas also has worked throughout the United States with civil rights, religious and community groups, and law enforcement agencies seeking to respond to bias crimes and hate group activity. He received a B.S. degree from the University of Michigan in 1982 and a J.D. from Emory University in 2010. He practices with the firm of Clements & Sweet focusing nearly exclusively in the area of workers’ compensation. A native of New York City, he’s an avid traveler and endurance runner. He and his wife live in Decatur. Judge Barbara Lynn Howell is a graduate of Emory University and Emory University School of Law. She joined the State Board of Workers’ Compensation as an Administrative Law Judge in 2011. Early in her career, Judge Howell worked at the Board as a staff attorney in the Appellate Division. She left the Board to attend the police academy, where she graduated with honors and became a part-time instructor. Simultaneously, she began her career in government affairs, and, over the years, handled diverse corporate and municipal interests in legislative and appropriation matters. Judge Howell has served on the Advisory Council to the National Criminal Justice Association, the Georgia Child Fatality Review Panel, the Georgia Public Safety Memorial Committee, the Georgia Capitol Art Standards Commission and as Executive Director of Georgia’s Criminal Justice Coordinating Council. She is a graduate of the ARC Leadership Institute and a registered mediator and arbitrator. Todd Ashley is the Deputy Director of the Prosecuting Attorney’s Council of Georgia. He joined PAC in 2013. Prior to joining PAC, Ashley served for nearly 12 years in the Fulton County District Attorney’s Office under District Attorney Paul Howard. He rose to the level of Executive Assistant District Attorney responsible for community prosecution in North Fulton County. He also served as Deputy DA of the Fulton County Juvenile Court, a Trial Division DA for six years, and two years as an Assistant Solicitor General in the Cobb County Solicitor General’s Office. He has conducted dozens of jury trials including domestic violence and murder. Ashley received his undergraduate degree from Georgia State University and law degree from Atlanta’s John Marshall Law School. He is also a graduate of the Coverdell Leadership Institute. He is active in the State Bar of Georgia, the North Fulton Bar Association and has previously served as the Chairman of the City of Milton Ethics Board. He was appointed to the Criminal Justice Coordinating Council by Governor Sonny Perdue from 2007 – 11 where he served as Vice Chair of the Crime Victims Compensation Board. Governor Nathan Deal recently appointed Ashley to the Juvenile Justice State Advisory Group. When not working, he can likely be found on a golf course.


12:45 CATASTROPHIC CLAIMS – CONSIDERATIONS FOR NEGOTIATING VEHICLE OR HOME MODIFICATIONS AND ATTENDANT CARE Deborah G. Krotenberg, Director, Managed Care and Rehabilitation Division, State Board of Workers’ Compensation, Atlanta


1:15 AFTER SETTLEMENT: ATTORNEY OBLIGATIONS, AMENDING OR VACATING SETTLEMENT AGREEMENTS, MANAGING OPEN MEDICALS, AND OTHER POST-SETTLEMENT CONCERNS FOR ATTORNEYS David M. Kay, Director, Settlement Division, State Board of Workers’ Compensation, Atlanta Rebecca Kirkland Halberg, Morgan & Morgan Atlanta PLLC, Atlanta Benjamin A. Leonard, Bovis Kyle Burch & Medlin LLC, Atlanta


After the Settlement Agreement

PAYMENT OF SETTLEMENT

When the Board approves a stipulated settlement (stip), an email will automatically be sent to every party listed in the ICMS claim file that provided an email address to the Board. In addition to this automatic email, the Board employee who reviewed the stip is trained to send an email to the parties notifying them of stip approval. For pro-se claimants, the Board will mail a copy of the approved stip to them at the address listed on the stip.

O.C.G.A. Sec. 34-9-221(f) governs timely payment of awards. The statute provides that income benefits are due within 20 days of Board approval of the stipulation. If the settlement is not paid timely, the late payment penalty is 20% of the total settlement. It is very important that the parties confirm the addresses are correct on the settlement documents to ensure the settlement checks are mailed to the correct address. Please note, the 20% late payment penalty is not automatic as the Board may excuse late payment if the employer can show the income benefits were not timely paid due to conditions beyond its control.

If there is an allegation that a settlement check is late or that the terms of the settlement have not been complied with, and the parties cannot resolve this dispute among themselves, either party may file a Form WC-14 requesting a hearing. The hearing will be heard by the Hearing Division Administrative Law Judge assigned to the case, not by the Settlement Division. An approved stipulated settlement does not cause the Board to lose jurisdiction to enforce the terms of the settlement agreement, even if the settlement was no-liability. See O.C.G.A. §34-9-15(b).

VACATING AN APPROVED SETTLEMENT

Within 20 days of the Board’s approval of a settlement, the Board has authority to reconsider, amend, or revise an approved settlement (as an Award of the Board) to correct apparent errors and omissions upon or without the suggestion of a party to the proceedings. O.C.G.A. § 34-9-103(b). This is almost always at the request of parties. Sometimes a discovery is made after settlement approval, such as an undisclosed child support lien, that causes both parties to agree that the settlement should not have been approved.


If the parties agree that the Board should not have approved the settlement for any reason, and the approval occurred within the past 20 days, the parties should contact the Settlement Division immediately and request that the Board issue an order vacating the settlement approval. Once the prior approved settlement is vacated, a corrected settlement may be filed when the parties are ready. If 20 days have already passed from approval, the settlement is final and cannot be vacated or amended.

If only one party wishes for the approved settlement to be vacated, and the approval occurred within the past 20 days, the party wanting the vacate order must follow the procedure for a Motion for Reconsideration in Rule 15(i). Note that no party to an approved settlement can appeal the approval of the settlement, nor can the Board amend, modify, or change in any manner the settlement once it has become a final Award of the Board. See O.C.G.A. § 34-9-15.

SETTLING MEDICAL AFTER INDEMNITY HAS BEEN SETTLED

If a stipulated settlement agreement only settles part of the claim, such as indemnity benefits, but leaves another part of the claim, such as medical benefits, open, the parties may wish to settle the remaining part of the claim at some point in the future. When the parties are ready to settle those outstanding parts of the claim, a new stipulated settlement should be filed with the Board.

This situation commonly arises when the parties wish to settle indemnity, but have not yet received Center for Medicare and Medicaid (CMS) confirmation of approval of a Medicare Set-Aside Account (MSA). In this circumstance, the parties must either leave medical open pending CMS approval, or close medical and pay the employee a reasonable portion of the MSA seed money pending CMS approval. The stip should state clearly which one of these options is agreed to by the parties. The stip may state that if CMS does not approve the proposed MSA, the employer/insurer may elect to reopen medical or leave medical open indefinitely. Rule 15(j) requires a statement that the Board will retain jurisdiction of the medical issues covered by the MSA until the medical portion of the claim is settled. Note that leaving medical open for an indefinite period is not an option for “no liability” stipulations, as the Board cannot approve a stipulation that finds the employer/insurer is not liable to the employee and the alleged injury is non-compensable, and yet potentially leaves the employer/insurer responsible for open medical treatment in the future.


The final MSA stipulation may be titled an “addendum” to the earlier approved indemnity stipulation, but it must be filed using the document type “stip” in ICMS, not “stip supplemental.” The MSA stipulation must not duplicate the earlier indemnity stipulation; nor is it a substitution for the earlier indemnity stipulation. It is an addition to that settlement, not a replacement, and should make a reference to the earlier approved stipulation and clarify how, if appropriate, the current MSA stipulation coordinates with the prior approved stipulation.

FORMER ATTORNEY FEE LIENS

When an injured worker has hired/fired multiple attorneys in a claim or if a claimant’s attorney has withdrawn, there will likely be attorney fee liens that need to be resolved after settlement. If you are a Claimant’s attorney that has withdrawn or been terminated from a case, Rule 108(e) sets forth the method for filing of an attorney fee lien. Essentially, to properly file a lien for services and expenses, the attorney must file a WC-108b within 20 days of withdrawal or written notice of termination by the client. The WC-108b should include the contended value of the services and expenses. The attorney should also include supporting documentation and serve the WC108b on all parties.

If the approved settlement involved a former attorney fee lien, and required the current claimant’s attorney to hold funds in escrow pending resolution of that lien, the Board will typically schedule a mediation to discuss resolution of the lien. Either party may decline the mediation or request a hearing instead. Once the current and former attorney have resolved the fee lien issue, no further order of the Board is necessary for the funds to be distributed, if the approved settlement stated that the funds would be held in escrow “pending resolution by the parties or by order of the Board” or similar language. If a Board order regarding the fee lien resolution is necessary or desired by the parties, Form WC-108A should be filed with the Hearing Division ALJ assigned to the claim, with section D completed. Please note, if the lien issue is scheduled for mediation or a hearing and the attorney who filed the lien fails to appear and present evidence, then the lien shall be voided. This is not automatic, but requires the current attorney to file a motion requesting that the former attorney's lien be dismissed for failure to appear to protect the lien.

Another option available to attorneys in a fee dispute is the WCCL Fee Arbitration Committee. If the parties agree to this option, the disputing attorneys both submit a list of attorneys to whom they would agree to as an arbitrator. The committee matches up the names and assigns an anonymous arbitrator. If he/she is willing to arbitrate, each party submits a 1-2 page brief regarding their efforts on the case and their requested fees. The


arbitrator issues a written, binding decision within 15 days of receiving the briefs. Your only contribution for this service is payment of 1% of your fee in the matter to GLF. If you are interested in this process, you may contact Tom Holder or Brian Buckelew.

It is also important to note that the former attorney must be made a party to the settlement or the settlement is not binding on him/her. The former attorney may have grounds to assert a claim for fees against the employer if they are not included. See Bass v. Annandale, Inc., 187 Ga. App. 209, 362 S.E.2d 529 (1988). Accordingly, it is also important for the defense attorney to confirm all prior attorneys have been addressed in the settlement documentation prior to submitting the settlement to the Board for approval.

MEDICAL PROVIDER LIENS

Increasingly the GA WC system is seeing aggressive tactics from providers and group carriers to obtain reimbursement in claims where they have either provided services without payment (in the case of the providers) or the group carrier has paid for care which might be the responsibility of the WC carrier. Essentially some entities are using the State Board as a collection agency. While many providers have legitimate grounds to seek reimbursement, national group health carriers are using not only Title 34 to seek reimbursement but also are, in some instances, attempting to use the collection powers of CMS to obtain reimbursement. The rights of carriers in the latter instances are not as well defined, and, some group carriers are simply attempting to hold parties hostage in a negotiated settlement in order to collect reimbursement whether or not they have the actual right to do so.

The ability of providers to assert a lien is fairly straightforward. To assert a lien, the provider simply has to file a WC-206 (Party at Interest) and attach the relevant documentation showing an actual or potential lien amount. Failure to attach the amounts likely won’t extinguish the lien if the claim is settled on a compromise basis, but, will delay the settlement process while the amount of the lien is determined. Often the amount of the lien is simply asserted according to the UB form (Universal Bill). The UB form is not used to fee schedule the amounts, thus, practitioners for both claimants and employer/insurers should be prepared to examine the attachments and then have the amounts fee scheduled (which will significantly reduce the amounts).

In disputed claims, the entity filing the 206 becomes a party at interest to the claim. The entity is copied on all pleadings, and is treated as a lienholder in the claim whose interests must either be extinguished by order or by law, or, whose interests must be satisfied by negotiated


settlement with the entity or direct payment. Board Rule 206 (c). There is no direct guidance in the Board Rule about whether or not a Party at Interest may participate in discovery, or, take an active role in hearings outside of attending a hearing to protect its interests. However, there has been a recent ruling at the ALJ level finding a Party at Interest may not participate in discovery depositions. Practitioners should consider the impact to their clients if such parties are allowed to participate, and, bring any concerns to the assigned ALJ accordingly if a Party at Interest attempts to participate in the underlying discovery as if they are an actual party to the claim.

If a claim is compensable, in order to obtain reimbursement for bills for which a lien has been asserted, the medical providers have a few requirements to be met. First, all reports required by the Board including WC-20(a), 1500 Claim form, or UB-04 and supporting narratives, properly filled out, along with any itemized charges, discharge summaries, and medical reports must first be forwarded to the payer entity prior to the bills being processed and paid. Board Rule 205(a). Thus, if a provider has not provided such reports, the failure to do so can and likely will hold up a settlement from being processed. As such, when a settlement agreement has been reached in a compromise claim, any provider who has been treated as an authorized provider must get all reports and billing to the workers’ compensation carrier as soon as possible. Protracted disputes will often arise from the failure to provide reports, but even more so, the proper billing forms and itemized charges for the same.

Concurrently, in order to obtain reimbursement for bills, the providers have a few requirements to be met. First, all reports required by the Board including WC-20(a), 1500 Claim form, or UB-04 and supporting narratives, properly filled out, along with any itemized charges, discharge summaries, and medical reports must first be forwarded to the payer entity prior to the bills being processed and paid. Board Rule 205(a). Thus, if a provider has not provided such reports, the failure to do so can and likely will hold up a settlement from being processed. As such, when a settlement agreement has been reached in a compromise claim, any provider who has been treated as an authorized provider must get all reports and billing to the workers’ compensation payer as soon as possible.

Protracted disputes will often arise from the failure to provide reports, but even more so, the proper billing forms and itemized charges for the same. Likely the majority of disputes arise from the amount claimed by the provider versus what is actually owed under the Fee Schedule (see the next section).


GROUP CARRIER LIENS

Group carriers and other third party payers are increasingly using Title 34, and in particular Board Rule 206, to assert liens and seek reimbursement. Group carriers and other entities which cover costs of medical treatment or services may file a WC-206 (Board Rule 206(a)).

Group carriers may seek an order from the Board seeking to have the employer or its workers’ compensation carrier to pay it rather than the claimant or the claimant’s physician , but only under certain circumstances –

1. A claim must have been filed by the claimant or the claimant’s dependents (or guardian). OCGA 34-9-206(a);

2. The claim filed has to have been found compensable by the Board, or, accepted as compensable by the employer/self-insurer/insurer. State Wholesalers, Inc. v. Parkers, 194 Ga. App. 900 (1990);

3. The group carrier seeking payment must have filed a WC-206, along with supporting materials, and have sent the filings to all attorneys involved on behalf of all parties as well as any unrepresented parties to the claim. Board Rule 206 (a and b) ;

4. The WC-206 may be filed at any time during the pendency of a claim prior to adjudication of the claim itself, or, settlement and final approval of the settlement agreement. OCGA 34-9-206(a).

Often a question arises as to who is responsible for any difference between the amount a group carrier has paid to a provider, and, the amount the WC carrier may owe under Title 34. This amount can be vast in terms of the two figures depending on the medical care provided. If the claim has been adjudicated as compensable, or, has been settled on a compromise basis, the employer/self-insurer/insurer is only required to pay the amounts for the care pursuant to the Fee Schedule. Yet, the group carrier may have a lien for the full “retail” amount asserted by filing a WC-206. In that instance, the parties must insist upon compliance with Board Rule 205, and, place the entity on notice that the reimbursement will only be made pursuant to the fee schedule. This may then provoke an action under OCGA 34-9-203 (see next section).

The parties may also have to proceed to a hearing over the amount of the reimbursement to the group carrier. If that happens, the group carrier will bear the burden to show compliance


with all of the above cited statutes and Board Rules, and employer/self-insurer/insurer will need to be prepared to demonstrate the Fee Scheduled amount is the correct amount for reimbursement. As this process can be lengthy and also expensive for all the parties, a settlement mediation is often recommended if this situation arises. If the lienholder has properly asserted the lien prior to the settlement of the underlying claim, it is always advisable to either invite the lienholder to the mediation or negotiate with that party during the settlement of the underlying claim.

DISABILITY BENEFIT LIENS

Board Rule 244 provides a process by which a provider of disability benefits may assert a lien for reimbursement by filing a WC-244. As with the lienholders using a WC-206, the disability provider must attach documentation to the filing explaining the amounts of benefits claimed, including a copy of the plan or policy provision allowing them to seek reimbursement. The 244 must also be filed during the pendency of a claim (presumably prior to adjudication or settlement approval of a stipulation after the 20 day finalization period has run).

Disputed medical bills post stip approval

Often medical bill disputes can be avoided prior to settlement approval by making sure all the entities claiming reimbursement have provided all the medical bills, and said bills have been fee scheduled. Sometimes a provider will find charges not previously submitted and then, upon finding out the claim is about to be settled, deliver a thick bill to one of the parties to the claim. If the claim is compensable and there is not a lien filed for reimbursement (in other words, the provider has been paid all along), a dispute over medical charges not billed or improperly billed can become an issue prior to or after the approval of the claim settlement.

Disputes and delays between the Workers’ Compensation carrier and an entity seeking reimbursement for its medical bills most often arise under Board Rule 205(a). This Board Rule requires the entity seeking payment of its bills to accept payment under the Georgia Fee Schedule for Medical Billing and Reimbursement. Many times providers will seek to get around the Fee Schedule on multiple grounds. Often one such ground raised is that the billed services do not fall into the Fee Schedule (or the Blue Cross/Blue Shield index) such as compounded medications or specialized services, thus the Fee Schedule does not apply. Often providers who are out of state but who have agreed to provide care in a GA claim (where the claimant may live out of state or lives near the state border) will not agree to accept the GA fee


schedule as their own WC system in their native state may pay more. Alabama is one such example – WC in that state often generates more income for physicians than if the individual were treating under private group health care. From a practical standpoint, if a claim is compensable it is in the best interests of all the parties to make sure the provider understands the claim will be handled under Title 34, and as such, the medical bills will be paid under the Georgia Fee Schedule. If the provider refuses at the outset of the claim, it would be advisable to find a new provider as soon as possible.

OCGA 34-9-203(c)(4) provides a one year deadline for payment of medical expenses. In pertinent part, this provision reads “…if the employee or provider of health care goods or services fails to submit its charges to the employer or its workers compensation insurer within one year of the date of service of the issuance of such goods or services….then the provider shall be deemed to have waived its right to collect such charges from the employer, its workers’ compensation insurer, and the employee.” The concurrent Board Rule, 203 (b)(2), allows a providers 120 days to challenge the amount of payment they have been tendered by the payer entity. Failure to challenge the amount paid within that time period results in a waiver of any additional payment – meaning essentially the right to challenge is extinguished.

From a practical standpoint, if a provider is refusing to submit charges to the carrier, or, is refusing to cooperate with the Georgia Fee Schedule application, it is advisable to put said provider on notice of the intent of the carrier to pay the provider under the Fee Schedule. In so doing, and doing so often, establishing the time period clearly during which attempts were made to get the provider to comply with the statutory requirements (the one year period) . If after one year has passed and the provider has not complied with 203, a practitioner may then file a Motion to Extinguish their lien with the Board or the ALJ assigned to the claim.

Dealing with MSAs and CMS approval process, self-administered vs. third party administered

First and foremost, it should be said at the outset that a Medicare Set Aside is purely a creation of convenience for all the parties to a settlement. Indeed, CMS specifically states “[t]here are no statutory or regulatory provisions requiring that you submit a WCMSA amount proposal to CMS for review.” CMS WCMSA Reference Guide v2.5, Section 1.0 (April 4, 2016). In other words, nowhere in the MSP (Medicare Secondary Payer Act) is there any definition of (or even acknowledgement of) the Medicare Set Aside trust. All the parties to a claim settlement are required to do is to adequately consider Medicare’s interests when a compensable claim is settled. This can be done by leaving medical care open as well as funding an MSA. Nonetheless, Medicare will not pay for a beneficiary’s medical expenses where payment has been made


under a workers’ compensation plan. 42 U.S.C. § 1395y(b)(2)(A)(ii). As such, as one vehicle to avoid having Medicare pay for a claimant’s medical care in a compensable claim, an MSA gets funded to pay for those future medical expenses a claimant anticipates incurring down the road which the employer/self-insured/insurer already paid for in the settlement.

There still remains some confusion among some circles of practitioners as to when Medicare’s interests must be considered. More specifically much confusion arises as to whether they must be considered in a so-called “no-liability” settlement where compensability is denied. Medicare explains the distinction in its regulations. According to Medicare, “a lump-sum compromise settlement is deemed to be a workers’ compensation payment for Medicare purposes, even if the settlement agreement stipulates that there is no liability under the workers’ compensation law or plan.” 42 C.F.R. § 411.46(b)(1). This regulation is titled "Lump-Sum Compromise Settlement." So, denied WC claims must be compromise situations where the interests of Medicare potentially have to be considered. This last point, of course, can be easily dealt with by submitting a so called “$0” MSA for approval, and CMS will review these if the so called safe harbor thresholds are reached for review (the claimant is a Medicare beneficiary at the time of settlement AND the total settlement is greater than $25,000.00, OR, the claimant is not a Medicare beneficiary at the time of settlement, the total settlement is more than $250,000.00 and there is a reasonable expectation of the claimant being enrolled in Medicare within 30 months of the settlement being approved).

If there is an award denying compensability in part or in full, Medicare must honor any such Award. The Award cannot merely be an opinion but rather must be a final award or order. While Medicare is the ultimate arbiter of what interests of its own must be considered, it is not the ultimate fact finder in terms of what compensable interests arise prior to allocating an MSA – in other words, CMS cannot find the parties have to consider interests for which Medicare might be responsible in the future if an ALJ or higher court has ruled such interests are not compensable in the underlying claim.

CMS can take varying amounts of time to approve an MSA, and there are no hard or fast rules about the timeline. Often parties will perform an allocation with the intent to submit the same after the settlement of a claim with the State Board. The settlement documents must reflect the parties adequately considered Medicare’s interests and which party will fund the MSA (and note the funding mechanism). As of this writing, the funding of the MSA is not governed by any provision of Title 34 except as to mandate whether the parties have undertaken the process by which they can make sure Medicare does not become the primary payer when another party is responsible for medical care. Board Rule 15 requires that any settlement that includes an MSA state the cost of the MSA (which, if the MSA is annuitized, should be lower than the total MSA


payout), and, if the settlement leaves medical pending CMS review of a proposed MSA, the settlement should include a statement that the Board retains jurisdiction over the medical aspects of the claim not yet settled.

In constructing the MSA, in some instances the parties will want to have a third party administer the funds to the claimant. Some examples of instances where this may be desirable are when the claimant is not competent to handle his or her affairs, the claimant has a very large MSA which has been funded in a lump sum (and thus the temptation to run through the money might be greater) or perhaps the claimant simply does not want to manage his or her medical costs. Third party administrators are available for a onetime fee of varying amounts, and some will administer the funds for a percentage of the MSA (which must be paid outside of the MSA or the amount allocated will not satisfy Medicare’s interests, potentially). In selecting a vendor it is always advisable to ensure the vendor is both reliable and bonded/insured for malfeasance. The same is always advisable in the even the MSA is funded through an annuity, which also should be noted (if possible) in the settlement documents. The annuity company should be highly rated and contracts for annuities carefully reviewed by all the parties. The annuitization of the MSA will save the payer money, sometimes significant amounts. The claimant will benefit by being budgeted by the yearly disbursement (exclusive of the seed money, of course) thus guaranteeing the MSA trust will not be exhausted prematurely.

Alternately, many claimants elect to self-administer, or handle themselves, the money for the MSA. This means they assume the duty of making sure Medicare’s interests are considered by paying for their own care with the money allocated for the same and paid by the payer to the claimant directly. Ideally the claimant deposits this money into an interest bearing account and accounts yearly for the funds. In reality, however, it is unknown how much compliance there is with self-administration because the claimant’s attorney has often closed their file if there is a problem post-settlement. Likewise, the employer/self-insured/insurer have language in the settlement documents stating once the funding for the MSA is issued to the claimant, the claimant bears sole responsibility for compliance. In other words, the claimant is the only person who may know if he or she has continued to adequately consider Medicare’s interests post-settlement.

Funding issues can occur post settlement. For example, if CMS increases the amount of the MSA, it is almost always the carrier who bears the responsibility for paying the increased amount. CMS also can, on occasion, reduce the MSA amount. If the carrier has already funded the MSA, it will need to be determined how to recoup the reduced amount, if it is to be recouped at all. Also, some carriers like to use reversionary language to reclaim MSA money if the claimant passes away prior to the corpus of the MSA being exhausted. This is usually not


advisable for several reasons; there are tax implications to the carrier for the reclamation, the cost of locating the claimant, sometimes decades later, may outweigh the benefit of reclaiming the money, and last but not least, the claim cannot ever be truly closed if the carrier has a remaining interest in the MSA (thus settlement may be redundant to some degree).


1:45 BREAK


2:00 WHO’S ON THE OTHER SIDE: INSURER/ SELF-INSURER/UNINSURED EMPLOYER/ GROUP FUND/MUNICIPALITY OR OTHER GOVERNMENT ENTITY Daniel Maldonado, State Board of Workers’ Compensation, Atlanta Glenn D. Chitlik, State Board of Workers’ Compensation, Atlanta Robin A. Golivesky, Attorney at Law, Atlanta William A. White, Smith Welch Webb & White LLC, McDonough


ADR in the WORKERS’ COMPENSATION ARENA

Who’s on the Other Side: Settling Claims

Robin A. Golivesky Daniel Maldonado Glenn D. Chitlik William A. White

©2019 All Rights Reserved


Who’s on the Other Side: Settling Claims

Robin A. Golivesky Daniel Maldonado Glenn D. Chitlik William A. White

TABLE OF CONTENTS

Introduction

I. The Uninsured Employer A. Not All Employers are Subject to the Workers’ Compensation Act

B. Employers Subject to the Workers’ Compensation Act are Required to Have Workers’ Compensation Insurance

C. The Legal Ramifications of Not Having Workers’ Compensation Insurance

D. Reasons Why Employers Subject to the Workers’ Compensation Act Fail to Secure Insurance

II. The Insured Employer

A. The State of Georgia

B. Municipalities and Other Government Entities

C. Group Insurance for Municipalities and Other Government Entities

D. Self-Insurance for Municipalities and Other Government Entities

E. Considerations In Settlement for Municipalities and Other Government

Entities

F. Group Self-Insurance Funds for Private Employers

III. The Mediator’s Perspective and Role

Conclusion

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Introduction

There is no requirement to settle a workers’ compensation claim. The only requirement

by law is that both medical and indemnity benefits be paid. This paper addresses the differences

in settling claims depending on who’s on the other side of the table, whether the employer is

insured, self-insured, uninsured, is a government entity or is a member of a group fund.

Although the goal for each party is the same, i.e., to settle the claim, the players are different.

I. The Uninsured Employer

A. Not All Employers are Subject to the Workers’ Compensation Act

If you know the enemy and know yourself, you need not fear the results of a hundred battles. -Sun Tzu

Not all employers or employees conducting business in the State of Georgia are subject to

the Georgia Workers’ Compensation Act. Therefore, not all employers are required to have

workers’ compensation insurance. Examples of some employers and employees who are not

covered under the Georgia Workers’ Compensation Act are:

1) Any person, firm, or private corporation, including any public service corporation that has regularly in service less than three employees in the same business within the State of Georgia, unless such employees and their employers voluntarily elect to be bound (O.C.G.A. § 34-9-2(a)(2));

2) Common carriers by railroad engaged in intrastate trade or commerce (O.C.G.A. § 34-9-2(a)(2));

3) Common carriers by railroad engaging interstate or international commerce (O.C.G.A. § 34-9-2(b));

4) Employees whose employment is not in the usual course of trade, business, occupation, or profession of the employer or not incidental thereto (O.C.G.A.§ 34-9-2(a)(2));

5) Farm laborers (O.C.G.A.§ 34-9-2(a)(2)); 6) Domestic servants (O.C.G.A.§ 34-9-2(a)(2));

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7) Any person performing services as a licensed real estate salesperson or associate broker who has a written contract of employment proving that he or she shall perform all services as an independent contractor. (O.C.G.A. § 34-9-2(a)(2)); and

8) Persons who perform services as an independent contractor (O.C.G.A. § 34-9-2(d))

If the employer is clearly not subject to the Workers’ Compensation Act, an employee or

his or her representative should not file a request for hearing seeking benefits (or any recovery)

under the Workers’ Compensation Act from that employer. Doing so, may cause emotional

distress and financial harm to the employer because of having to investigate, respond to, and

defend against such a claim. If an employer does not have workers’ compensation insurance

because it is not required to have such insurance, the employer may, nevertheless, feel compelled

to retain counsel to its financial detriment. Only after a determination that the proceedings have

been brought or prosecuted, in whole or in part without reasonable grounds, may the employer

recover its attorney fees and litigation expenses against the offending party. See O.C.G.A §

34-9-108(b)(1) and (4) as well as Board Rule 108(b)(5).

Of course, it is important to note that sometimes it is not clear whether an uninsured

employer is subject to the Workers’ Compensation Act. A prudent step in such cases is for the

claimant or the claimant’s attorney to timely file a WC-14/Notice of Claim to preserve the

claimant’s right to pursue compensation and prevent it from being time barred pursuant to

O.C.G.A. § 34-9-82, or in the case of an occupational disease pursuant to O.C.G.A. §

34-9-281(b)(2). The claimant or his or her attorney may want to contact the Enforcement

Division of the State Board of Workers’ Compensation to request that an investigation be

conducted to determine whether the uninsured employer is subject to the Workers’

Compensation Act. The claimant or his or her attorney may also want to file a WC-14/Request

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for Hearing to conduct discovery pursuant to the Georgia Civil Practice Act to determine

whether the uninsured employer is subject to the Workers’ Compensation Act.

B. Employers Subject to the Workers’ Compensation Act are Required to Have Workers’ Compensation Insurance

O.C.G.A § 34-9-121(a) states, in part, “Unless otherwise ordered or permitted by the

board, every employer subject to the provisions of this chapter relative to the payment of

compensation shall secure and maintain full insurance against such employer’s liability for

payment of compensation under this article…” Furthermore, O.C.G.A. § 34-9-126(a) indicates,

“Every employer subject to the compensation provisions of this chapter shall file with the board

in the form prescribed by the board…evidence satisfactory to the board of his compliance with

Code Section 34-9-121 and all other Code sections relating thereto.”

C. The Legal Ramifications of not having Workers’ Compensation Insurance

So, what legal ramifications, in addition to paying the required benefits to the claimant

pursuant to O.C.G.A § 34-9-120, does an employer that is subject to the Workers’ Compensation

Act face when it fails to secure workers’ compensation insurance and provide proof of this

insurance to the Board? An employer may be penalized, civilly, criminally, or both.

O.C.G.A. § 34-9-126(b) states the consequences for failing to comply with O.C.G.A

§ 34-9-126(a) i.e., failing to provide the Board with proof it has workers’ compensation

insurance. It states, “Any employer subject to the compensation provisions of this chapter who

refuses or willfully neglects to comply with subsection (a) of this Code section shall be guilty of

a misdemeanor. In hearing any application for compensation by an injured employee of such

delinquent employer, the board may assess compensation against such employer in an amount 10

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percent greater than that provided for in this chapter and, in addition to the fee to be paid by the

employer to the representative of the employee.” O.C.G.A. § 34-9-18(c) states, “In addition to

the penalty and assessed fees as defined in subsection (b) of Code Section 34-9-126, the board

may assess a civil penalty of not less than $500.00 nor more than $5,000.00 per violation for the

violation by any person of Code Section 34-9-121 or subsection (a) of Code Section 34-9-126.

Moreover, O.C.G.A § 34-9-18(e) explains, “Any person, firm, or corporation who is assessed a

civil penalty pursuant to this Code section may also be assessed the cost of collection. The cost

of collection may also include reasonable attorney fees.” Additionally, O.C.G.A § 34-9-128

states, “The willful refusal of an employer to permit inspections and investigations pursuant to

this code section [granting the power and authority to the Board and its representatives to enter

any place of employment and conduct an inspection] or to comply with Code Sections 34-9-120,

34-9-121, and 34-9-126 after being notified of noncompliance by the board shall subject the

employer to a penalty to be assessed by the board, not exceeding $50.00 per day so long as the

refusal shall continue...”

The Enforcement Division of the State Board of Workers’ Compensation has several

compliance officers strategically located throughout the State. During just the 2018 calendar

year, the Enforcement Division conducted 4,104 inspections of businesses. Following these

investigations, the Enforcement Division suspected 464 Employers were in non-compliance with

their obligation to maintain workers’ compensation insurance. Of those businesses, 437 reached

a settlement regarding civil penalties without the need of a hearing, resulting in the collection of

$619,589.00 in penalties deposited in the general fund of the state treasury, in accordance with

O.C.G.A. §34-9-18(f).

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D. Reasons Why Employers Subject to the Workers’ Compensation Act Fail to Secure Insurance

Despite the adverse consequences, some employers who are subject to the Workers’

Compensation Act, nevertheless, do not obtain insurance. Why?

1) Economics. Some employers, aware of their obligation to secure insurance, simply

gamble they will not get caught by the Enforcement Division, gamble the penalties for

non-compliance will be less expensive than maintaining insurance, or gamble their

employees will not get seriously injured while working.

2) Ignorance . Some employers are simply unaware they are subject to the Workers’

Compensation Act. They allege, if not truly believe, that their insurance agent,

accountant, or attorney are to blame for not having advised them of the need to secure

workers’ compensation insurance. Sometimes, especially in the case of small businesses,

the need to secure workers’ compensation insurance is not apparent. The small business

owner(s) simply do not realize they have created a business that has 3 or more

employees.

II. The Insured Employer

When settling a claim with an insured entity, you may be dealing with a claims handler of

the insurer or a direct representative of the Employer. Some claim handlers have desk authority

and some do not. For those claim handlers that have desk authority, the amount of authority can

differ from claim handler to claim handler. For those claim handlers that do not have desk

authority, a supervisor will be involved in the evaluation and confirmation of the amount of

settlement authority. It is also important to understand there are many times when the claim

handler is required to obtain concurrence on settlement authority from the Employer. In these

instances, without concurrence from the Employer, there will be no settlement of the claim.

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A. The State of Georgia

First and foremost, the government is not in the business of making money. Funds to pay

workers’ compensation claims comes from the State Treasury. Therefore, state funds are

affected by the strength or weakness of the economy. Each year, the Governor passes a budget

which includes all state agencies. It is important to note that workers’ compensation claims are

paid out of the budget of the Department of Administrative Services (DOAS) and not the budget

of the employing agency (e.g., Department of Corrections, Department of Transportation, and

The University System of Georgia). Therefore, you will be dealing with a representative of

DOAS or a third party administrator (TPA) when settling a state claim. This can be a claim

handler who works directly for DOAS or the third party administrator, Georgia Administrative

Services. The TPA is an adjusting agent, but DOAS has the final say as to whether a case settles.

If not all of the budgeted money is spent, the Governor may assume not all of the funds

were needed and the following year’s budget will reflect this. As such, the end of the fiscal year

is a good time to attempt settlement of a claim against the State. If your attempts to settle your

claim are unsuccessful and the timing is close to the end of the fiscal year, you can be sure the

money that was allocated to settle your claim will simply be used to settle someone else’s claim.

Issues with medical care can be resolved through mediation. For the State of Georgia,

medical care is provided through the Amerysis Managed Care Organization. Managed care

organizations are governed by O.C.G.A. § 34-9-208 and Board Rule 208 and are certified by the

Board. Utilization review and peer review activities are subject to the review of the board and

written reports are confidential. O.C.G.A. § 34-9-208(f). “Disputes which arise on an issue

related to managed care shall first be processed without charge through the dispute resolution

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process of the WC/MCO. The WC/MCO dispute resolution process must be completed within 30

days of a written notice. If the dispute cannot be resolved, the WC/MCO must immediately

notify the employer or insurer. If the dispute involves treatment/test prescribed by the authorized

treating physician, the employer or insurer must follow the procedure outlined in Rule 205.”

Rule 208(f). Also, an aggrieved employee can file a WC-PMT (Petition for Medical Treatment)

which will result in the Board issuing a notice of a telephonic conference being scheduled with

an Administrative Law Judge to take place within five (5) business days.

B. Municipalities and Other Government Entities

Whether they take part in a group insurance fund or are self-insured, local government

workers’ compensation payouts come from public monies. In the case of self-insureds, local

governmental entities set aside reserves for medical care, income benefits, and administration

(and legal) costs. In the case of group insurance, the local government entities pay into the group

fund (much like insurance premiums) and the fund administers the claims and payouts.

In the majority of cases, funds for workers’ compensation claims come from a local

governmental entity’s general fund. In other words, workers’ compensation insurance funds by

and large come from property taxes. While a City or County may also receive Special Local

Option Sales Tax (SPLOST) funds and certain grants, most of the money received from those

sources must be spent specifically. For example, SPLOST funds may only be used for specified

capital improvements after voter referendum.

Similarly, while a Board of Education may also receive funds from the State under the

Quality Basic Education Act (QBE) and from the Federal government under the Individuals with

Disability Education Act (IDEA), Title I of the Elementary and Secondary Education Act, and

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the English to Speakers of Other Languages program (ESOL), as well as E-SPLOST (sales tax

dollars specially approved by the voters for education purposes), all of those funds are mandated

on how they may be spent as well. QBE funds must be spent on student education; Title I funds

must be spent to help level the educational playing field for impoverished students; IDEA funds

may only be used for special education; and E-SPLOST funds may only be used for specified

capital improvements related to education.

What this means is that workers’ compensation funds typically come from the most used,

and often most squeezed portion of a local government’s budget. This presents a hurdle, from

the very outset, to case settlement.

C. Group Insurance for Municipalities and Other Government Entities

Pursuant to O.C.G.A. § 34-9-150, et seq., and Board Rule 121, Counties, Cities, certain

Authorities, Boards of Education and other political subdivisions may meet their insurance

requirements by establishing a group fund with an approved trade association. For Counties and

most authorities, Workers’ Compensation Group Insurance can be obtained through the

Association of County Commissioners of Georgia (ACCG). ACCG insures more than

three-fourths (3/4) of the counties in Georgia. They have an internal claims administration

service that handles case management, loss assessment, and county and employee concerns.

The Georgia Municipal Association (GMA) provides group insurance for cities that choose to

join. Like ACCG, it has its own internal claims administration service. In 1988, GMA and

ACCG partnered to create Local Government Risk Management Services (LGRMS) which

provides loss control and provides training to the local governmental entity members. Boards of

Education that are not self-insured may secure group insurance through the Georgia School

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Boards Association. Like GMA and ACCG, GSBA has its own internal claims administration

service. GSBA also offers risk management services, although separate from LGRMS.

D. Self-Insurance for Municipalities and Other Government Entities

Under O.C.G.A. § 34-9-121 and Board Rule 121 (c), counties, municipalities, and other

political subdivisions may “furnish the board with satisfactory proof of such employer’s financial

ability to pay . . . compensation directly in the amount and manner when due, as provided by [the

Workers’ Compensation Act].” O.C.G.A. § 34-9-121 (a).

When a local government entity is “self-insured” for workers’ compensation purposes,

the claims are typically administered by a TPA. However, in most cases, the management of the

cases (including when to controvert and whether to settle) remain in house. This means,

typically, that a decision to settle (and the amount of authority), typically goes through at least

four sets of hands before approval – the attorney that evaluates the claim, the TPA adjuster that

evaluates the claim, the in-house manager that gives his or her recommendation, and the ultimate

commission/council/board that ultimately grants settlement authority or not.

E. Considerations In Settlement for Municipalities and Other Government Entities

Because public funds are involved, there will be less money available for settlement of

the case and this should be planned for at the outset. Local governmental entities have budgets

that go through lengthy processes of approval and typically involve public comment. For

example, a Board of Education usually starts the budget process in February for ultimate

approval in June. Especially when dealing with self-insured entities, the ultimate decision maker

is probably basing their decision on matters that have very little to do with the facts and/or issues

of the case (e.g., political pressures, etc.).

10


F. Group Self-Insurance Funds for Private Employers

Group Self-Insurance Funds are comprised of bona fide members of trade associations

and professional associations as well as groups of municipalities, counties, school boards, and

hospital authorities to extend workers' compensation benefits to their employees through group

self-insurance programs. O.C.G.A. § 34-9-150. In other words, there must be a common interest

between the members. Historically, these types of funds started because farms were not required

to have workers’ compensation insurance but when they did want insurance they were unable to

obtain it.

When settling claims, the prepared claimant’s practitioner will understand that with this

type entity the concerns of the Employer are important because they do have a say as to whether

the claim should settle. Also, these Employers are well-informed regarding the workers’

compensation system. A claim will never settle unless the Employer is on board with the terms

of the settlement. It is worth noting that any money left over in the fund is distributed to the

employers like dividends.

III. The Mediator’s Perspective and Role

The mediator must take into account “Who’s on the Other Side” when conducting a

mediation. It is often best practice to establish this in the first introductory meeting with all

parties. The representative for the employer/insurer should state who is the insurer and what

limitations they may have and any unique procedures they may require to settle a workers’

compensation claim.

11


The idiosyncrasies of self-insured, uninsured, group fund/municipality, government

entity and high deductible insurance policies for employers may have been expected and

accounted for prior to coming to mediation and the settlement demand submitted by the claimant

may have also taken these unique factors into consideration. If this is the case the mediator will

simply reinforce these unique circumstances and go forward without further discussion, but

unfortunately if the claimant has not been made aware of these issues they must become a part of

the mediation discussions.

Realize the uninsured employer may not retain counsel to assist them at mediation. Since

the employer does not have workers’ compensation insurance, an insurer will not be providing

insurance to represent the employer. The employer may not have the financial means or desire

to retain counsel. The employer may lack the sophistication and knowledge of workers’

compensation laws and their applicability to the facts to accurately assess its risks going into the

mediation. The unrepresented employer is more likely to find the matter personal to it and react

emotionally. Since it does not have counsel to act as an objective filter, reaching a settlement is

likely to be more challenging. At all times when communicating with an unrepresented

uninsured employer, make clear through your actions and words who you are, who you

represent, and that you are not disinterested. Refrain from giving legal advice, other than the

advice to secure counsel. If you can reach a settlement with the unrepresented, uninsured

employer; you, as claimant’s counsel, may need to draft the settlement documents to ensure

compliance with Board Rule 15. Advise your client before mediation.

Realize that if the uninsured employer retains counsel, it may not necessarily be counsel

familiar with the complexities of workers’ compensation law. The employer may retain an

12


attorney who has handled other legal matters for the employer in the past but may have little or

no experience with workers’ compensation matters. Unfortunately, an attorney who doesn’t

know how to properly assess a claim, but whose client believes he does, can make reaching a

settlement even more difficult than negotiating with an unrepresented uninsured employer.

Advise your client before mediation.

The claimant’s expectations for settlement and the reality of the unique circumstances

and limitations regarding an employer’s insurance coverage or lack thereof cannot be ignored

during a mediation. The claimant’s attorney has to make every effort to educate their client and

the mediator can often aid in this process. The more information that the representative for the

employer/insurer can share the better for all parties. Do not expect to get the same settlement

value for your client’s claim than you would if you were dealing with an insured employer. A

corollary to this is be prepared to be flexible and creative in seeking a satisfactory resolution of

the issue or claim that is being mediated. Often, the uninsured employer lacks the financial

means, especially liquid funds, to pay all the benefits due or settle a claim for what you would

otherwise deem is fair value. If your expectations and demands do not take this into account, the

uninsured employer may decide it is more prudent to file for bankruptcy and hope to avoid

payment altogether. You may consider working out an installment plan rather than just one lump

sum. You may even want to consider a settlement involving the transfer of assets other than

money. Even if you work out a settlement, you may ultimately have to engage in collection

efforts if the uninsured employer fails to comply with the agreement. Advise your client of these

challenges and the importance of being flexible in negotiations if the claimant wants to reach an

agreement.

13


Keep any opening statement and any interactions with the uninsured employer during the

mediation cordial, factual and brief. The uninsured employer, especially if it is unrepresented,

may anger easily or discount your arguments offhand if it perceives it is being attacked. It may

feel you are attempting to render legal advice. Let the mediator, as a neutral party, discuss the

weaknesses, the potential exposures, including assessment of penalties, with the uninsured

employer. It is likely to be better received from the mediator than from the party that it perceives

may be trying to run it out of business.

A day or two before the mediation, communicate with the uninsured employer’s

representative, if they have one, or the employer if they do not have one, to confirm they will

attend the mediation and that settlement authority has been confirmed. It should be noted that if

the mediation is taking place at the Board, the failure to appear or follow the appropriate

postponement or cancellation procedures may result in civil penalties pursuant to Board Rule

100(h)(1). Advise your client of these efforts, so if the employer does not appear at mediation,

your client is less likely to blame you.

A failed mediation can be avoided if these issues are disclosed and addressed prior to the

mediation. For example, it is certainly much easier for a claimant to comprehend prior to a

mediation that the “Government Entity” or “Municipality” insurance on their claim will require

some sort of approval after a mediation that will extend the settlement process and delay their

receipt of funds as opposed to being informed during or at the end of the mediation. Another way

to avoid a failed mediation is to make sure all claims that need to be settled are disclosed at the

very least at the beginning of the mediation, e.g., any other claims with the same employer and

insurer and subrogation claims.

14


Conclusion

When moving a claim toward settlement, the prepared practitioner should have a working

understanding of the distinctions of settling claims depending who’s on the other side. No matter

who is on the other side, demands for settlement need to be reasonable. Making unreasonable

and exorbitant demands while ignoring the facts of the case is a non-starter when it comes to

settlement of a claim.

15


2:30 TOOLS IN THE TOOLBOX: TIPS FOR ETHICALLY GETTING THE MOST OUT OF THE MEDIATION—AND THE MEDIATOR Michelle M. Thomas, State Board of Workers’ Compensation, Atlanta Bryan C. Ramos, The Ramos Law Firm, Atlanta Kevin O. Skedsvold, Skedsvold & White LLC, Atlanta


Tools Professionally and ethically getting the most out of

mediation…and the mediator

By

Michelle Thomas

ADR Division

State Board of Workers’ Compensation

270 Peachtree Street, NW

Suite 700

Atlanta GA 30303


2

INTRODUCTION

Mediators are many things-problem solvers, neutrals, professionals-and people.

Recognizing that mediation and, in fact, the mediator are also tools for resolution of the

claim, this discussion will focus on additional tools and tips that can be used to get the

most out of the mediation experience and the mediator. The purpose is to explore tips

and techniques for successful, ethical, and professional experience with a mediator,

using the hypothetical situations that follow and addressing whether the hypothetical

conduct is professional, ethical, and the likely impact of the conduct described in the

hypothetical on the mediation.

The Chief Justice’s Commission on Professionalism and their Professionalism

CLE General Materials provided the following guidance in distinguishing “ethics” and

“professionalism.” This broad guidance will form the framework for the discussion that

follows. “While a canon of ethics may cover what is minimally required of lawyers,

“professionalism” encompasses what is more broadly expected of them-both by the

public and by the best traditions of the legal profession itself.” (Emphasis in the

original) Chief Justice’s Commission on Professionalism, Professionalism CLE General

Materials, v. 09-06-18.

The hypotheticals and discussions that follow are intended as a “jumping off

point” for discussions, and not as an exhaustive discussion of the situations or possible

implications of each.

HYPOTHETICALS

1) Attorney appears for mediation 45 minutes late.


3

a) Professional?

See Chief Justice’s Commission on Professionalism, Professionalism CLE

General Materials, v. 09-06-18, Appendix E, “Specific Aspirational Ideals” “As

to opposing parties and their counsel… (a) (1) notify opposing counsel in a

timely fashion of any cancelled appearance.” “As to the courts, other

tribunals, and those who assist them… (a)(4) Avoid all delays not dictated by a

competent presentation of a client’s claims; (5) Prevent misuses of court time

by verifying the availability of key participants for scheduled appearances

before the court and by being punctual”. Therefore, although emergencies,

accidents, and life in general, can all affect one’s ability to get somewhere on

time, generally speaking lateness is not professional.

b) Ethical?

Whether lateness rises to an ethical consideration likely depends on how often

one is late. See State Bar of Georgia, Georgia Rules of Professional Conduct.

c) Likely effect on mediation/result?

Giving the other parties involved in the mediation, including the mediator,

some kind of notification helps to mitigate the issue. A one-off occasion with

an appropriate, even cursory, apology will likely mitigate any bad feelings.

However, it is worth noting that, on occasion, the other parties involved,

including the mediator, may have other commitments that preclude going

forward with the mediation after such a delay.


4

2) Attorney walks into caucus room, looks at mediator and says, “I have

$33,000.00. Work your magic” and gets on the telephone regarding

another case.

a) Professional?


General Materials, v. 09-06-18, Appendix D, “A Lawyer’s Creed.” “To my

clients I offer…and good judgement.” Failing to exercise judgement in the

negotiations during the course of a mediation could well violate this

professional standard.

b) Ethical?

The mediator is a neutral, and therefore cannot represent a party. Georgia

Alternative Dispute Resolution Rules, Appendix C. As such, negotiating the

claim would likely be a violation of the mediator’s ethical duties.

Furthermore, the attorney owes a duty of zealous representation to their

client. See State Bar of Georgia, Georgia Rules of Professional Conduct. The

attorney’s actions are also likely unethical.


If attorney declines to participate and stays on the telephone, negotiations will

likely stall. This is particularly true if the other side has issues or facts they

want to discuss. If the attorney re-engages, the mediation might be

salvageable.


5

3) Attorney begins caucus by saying, “I’m not making a move until he

tells me whether he found a new job, where he is working, who his

supervisor is, how long he has been working there, how much he is

earning on that job, and everything he has to do as part of his job

duties.”

a) Professional?



to opposing parties and their counsel…(b)(1) [I should] Not serve motions or

pleadings in such a manner or at such a time as to preclude opportunity for a

competent response. The questions posed are essentially discovery questions

that one side is seeking to have answered immediately, rather than allow the

usual response period.

b) Ethical?

Wanting to obtain as much information as possible, on its own, likely does not

violate ethical canons.


The other side may not want to provide this information in the course of

mediation. Moreover, they may not have it readily available. Therefore,

imposing conditions based on information that should be obtained through

discovery, and, if essential, prior to the mediation, is unlikely to lay the

foundation for a successful mediation.


6

4) During ongoing negotiations, attorney says to mediator, “You go in

there right now and tell them that they are being unreasonable. I

mean it. They need to know that their position is unreasonable.”

a) Professional?

Telling the other side that you find their position unreasonable is not

unprofessional, per se. However, depending on the tone and demeanor, these

statements could demonstrate unprofessional conduct toward the mediator

and/or the other side. See Chief Justice’s Commission on Professionalism,

Professionalism CLE General Materials, v. 09-06-18.

b) Ethical?

The attorney commits no ethical violation in telling the other side their

position is unreasonable. However, if the mediator takes a position as to the

reasonableness or unreasonableness as to either party’s position, this could be

a violation of their duty to neutrality. Georgia Alternative Dispute Resolution

Rules.


In all likelihood, the mediator, to comply with their ethical standards, will

refuse to deliver the message as is. Delivering the message as “Party A

believes that your position is unreasonable” should solve the ethical

conundrum for the mediator. However, the impact of such a message could

stall or end negotiations.


7

5) During ongoing mediation, attorney says, “My client really does not

want to settle this claim. They just wanted to know what they thought

it was worth/what it would take to get it done/medical treatment/if

there has been medical treatment/etc.”

a) Professional?

The Chief Justice’s Commission notes that an attorney should “As to the

courts, other tribunals, and those who assist them… (a)(2) explore the

possibilities of settlement in all litigated matters” and aspire “As to

clients…(b)(1) Counsel clients about all forms of dispute resolution”. See

Chief Justice’s Commission on Professionalism, Professionalism CLE General

Materials, v. 09-06-18, Appendix E, “Specific Aspirational Ideals”

b) Ethical?

Any reasonable efforts to obtain needed information is likely ethical.

Therefore, posing the questions alone do not likely violate any ethical canon.

See State Bar of Georgia, Georgia Rules of Professional Conduct.


If one side is not interested in settlement in any circumstance, then

negotiations are not in good faith and should not continue. However, if there

were circumstances under which a side would agree, although they may not

have come into the mediation with the intent to settle, mediation should be

able to progress, if the intent exists at the time of negotiations/mediation.


8

6) At the outset of mediation, attorney walks mediator though details of

claim, citing to the relevant law and reiterating evidence that

supports their position. Attorney proffers legal arguments that are

novel and becomes enraged, shouting and cursing, when mediator

questions the likelihood of prevailing on these arguments.

a) Professional?

Becoming enraged rarely results in professional behavior. See Chief Justice’s

Commission on Professionalism, Professionalism CLE General Materials, v.

09-06-18, Appendix E, “Specific Aspirational Ideals.” “As to the courts, other

tribunals, and those who assist them… (b) …I should… (1) Act with complete

honesty; (3) Give appropriate deference to court rulings; (6) Show respect by

attire and demeanor.”

b) Ethical?

So long as the arguments are not so novel as to rise to the level of being

frivolous, such actions may be considered zealous representation of a client.

See State Bar of Georgia, Georgia Rules of Professional Conduct.


Abusing the mediator can result in a mediator no longer feeling as if they can

remain neutral and terminating the mediation. Furthermore, if you have

hired a mediator with subject matter experience and you have a novel

approach, explaining that approach rationally and calmly is best. However, a

mediator, as part of bringing the respective sides to an agreement, may


9

challenge the respective positions of each side. If a party is not interested in

discussing the merits of the claim, letting the mediator know that at the outset

of the mediation, politely, is likely sufficient.



supports their position. At the close of the presentation, attorney

asks, “You agree with me, don’t you? Don’t you?”

a) Professional?

Seeking the mediator’s opinion after a detailed presentation of the claim is

unlikely to violate professional standards. See Chief Justice’s Commission on

Professionalism, Professionalism CLE General Materials, v. 09-06-18,

Appendix E, “Specific Aspirational Ideals”

b) Ethical?

From the attorney’s standpoint, probably. State Bar of Georgia, Georgia Rules

of Professional Conduct. However, the mediator should not agree or disagree

with a position in order to maintain neutrality and the appearance of

neutrality. Georgia Alternative Dispute Resolution Rules.


Deftly handled, and avoiding a response from the mediator, likely no real

impact. However, if the attorney insists and the mediator continues to demur,

the attorney may become frustrated with the mediator or determine that the

mediator does not agree and either rethink their position or lose faith in the

mediator. If the mediator responds with unabashed approbation, they have


10

likely sacrificed their role as a neutral. Georgia Alternative Dispute Resolution

Rules.



supports their position. Included in the presentation are statements

that are factually inaccurate. Assuming attorney knows that the

statements are incorrect, is this:

a) Professional?

No. See Chief Justice’s Commission on Professionalism, Professionalism CLE


to the courts, other tribunals, and those who assist them… (b) …I should… (1)

Act with complete honesty.” Knowingly providing factually inaccurate

information is not likely to be considered professional.

b) Ethical?

While attorneys do not have a duty of candor to the mediator as they would to

a tribunal, honestly is still an ethical canon. State Bar of Georgia, Georgia

Rules of Professional Conduct. Assuming the statements are not mistakes,

but intentionally made, making them could be an ethical violation.


This largely depends on what happens with the information. If the mediator

does nothing with the inaccurate information, it could potential have no

impact on the negotiations. However, if the mediator takes the information

into the other room, they are likely to be confronted by the other side as to the


11

accuracy of the information provided. If the mediator takes the resistance to

the inaccurate information back to the speaker, the mediation could become

bogged down in a discussion about the particular facts and bad feelings.

It is important to distinguish between untruths and differing or subjective

opinions. Statements like “The doctor says he’ll never be released to work”

when the doctor in fact has released the claimant and the speaker knows the

claimant is released to work, is untrue. This is not the same as a mistake,

where, for example, the speaker does not know that the claimant has been

released. Nor is it the same as “I don’t think the doctor will ever release the

claimant to work” which is clearly the opinion of the speaker, or even “I’ll

never be able to go back to work” where the speaker is the claimant

themselves, as this is clearly the claimant’s own feelings on the matter.

This hypothetical begs the question why one would give the mediator

misinformation. Discussions with a mediator are as confidential as the

parties want them to be. If a side does not want information disclosed, the

mediator is duty bound not to disclose it. Georgia Alternative Dispute

Resolution Rules. A party could be testing what the other side knows about

the claim, which may be useful information. However, a mediator may not

feel that untruths represent a fulsome working relationship. While it may not

torpedo this particular mediation, it may torpedo the mediator’s inclination to

believe that party in the future.


12

9) During the course of negotiations, attorney indicates that although

they have made a demand/offer, they are only willing to accept

settlement on those terms.

a) Professional?


General Materials, v. 09-06-18, Appendix E, “Specific Aspirational Ideals”

which calls for respect and “regard due to all participants in our dispute

resolution process.” If one side is unwilling to negotiate, notifying the

mediator and other participants as soon as practicable is likely the most

professional course.

b) Ethical?

For the attorney, this may not represent an ethical issue. See State Bar of

Georgia, Georgia Rules of Professional Conduct. However, Georgia Alternative

Dispute Resolution Rules, Appendix C, requires that a mediator explain, “that

parties who participate in mediation are expected to negotiate in an

atmosphere of good faith”. Therefore, failure to identify this requirement and

maintain good faith negotiations could be a violation of the mediator’s ethical

responsibilities

c) Likely effect on mediation/result?’

Mediation requires that the parties are participating in good faith. . Georgia

Alternative Dispute Resolution Rules, Appendix C. In labor disputes, the

concept of ‘good faith bargaining” requires that the parties come with an

“open mind and sincere desire to reach agreement.” Black’s Law, citing Duval


13

Co. School Board v. Florida Public Emp. Relations Commission, Fla. App., 353

So. 2d 1244, 1248. Appearing for mediation with no intention of negotiating

beyond the demand or offer already extending likely does not meet the

requirement of good faith negotiations.

10) During the course of negotiations, attorney asks, “Who is in charge in

the other room?” What’s the vibe?”

a) Professional?


General Materials, v. 09-06-18, Appendix E, “Specific Aspirational Ideals”.

Seeking information about the mindset or issues of the other side does not

likely violate any professional considerations.

b) Ethical?

Seeking information about the other side’s position would likely be viewed as

zealous representation. See State Bar of Georgia, Georgia Rules of

Professional Conduct. However, the mediator’s duty to confidentiality

includes any information obtained during the mediation. The Committee on

Ethics for the Georgia Commission on Dispute Resolution has broadly

interpreted “information” to include conduct. See Advisory Opinion 6, issued

June 14, 2005. Therefore, revealing conduct or moods could violate

confidentiality.


14


The mediator can likely avoid any confidentiality issue by seeking permission

to relay conduct or “feelings” information. (e.g. “I’ll let them know that you

found their last move frustrating.”) However, while such a response might

provide information, the responsive information will not alter the situation

“in the other room”, whatever it is. Strategically, concrete questions might

better serve reaching an agreement. Rather than “Who’s in charge?” “Does

everyone in the other room understand….” whatever the particular position

(e.g. the claimant wants the recommended surgery, the employer has light

duty work to offer). Posing the specific question is likely to get a specific

answer, or better still, a mediator relaying that point again to the other side

and providing a response-and information- as to whether the facts or position

being proffered are making an impression.

11) During the course of negotiations, mediator asks if there is a PPD

rating. Attorney responses with, “I don’t know. Why do you care?”

a) Professional?

Again, rudeness rarely meets the standard of professional behavior. See Chief

Justice’s Commission on Professionalism, Professionalism CLE General

Materials, v. 09-06-18, Appendix E, “Specific Aspirational Ideals”

b) Ethical?

As the State Bar of Georgia, Georgia Rules of Professional Conduct also

outline that a lawyer should have respect for the legal system and those who

serve it, being rude could be a violation of their ethical obligations.


15


The mediator is a person. Offending, or angering, the mediator may result in

the mediator deciding that they cannot be neutral and terminating the

mediation. It begs the question, however, of why an attorney would treat a

mediator with hostility. If a party does not care for the mediator, to the point

of being hostile, then the parties should consider seeking a different mediator.

12) During negotiations, mediator asks if there is a PPD rating. Defense

Attorney responses with, “Yes. The ATP gave him a 15% rating to the

foot (20.25 weeks), a 10% rating to the lower extremity (22.5 weeks),

and a 5% rating to the body as a whole (15 weeks), so we are using the

rating to the body as a whole.”

a) Professional?

Willfully ignoring well-established law is unlikely to be considered

professional. See Chief Justice’s Commission on Professionalism,

Professionalism CLE General Materials, v. 09-06-18, Appendix E, “Specific

Aspirational Ideals.”

b) Ethical?

Failure to recognize established law may considered a failure of the duty to

competently handle the matter, or if the attorney is aware of the law, a failure

to meet the duty of candor. State Bar of Georgia, Georgia Rules of

Professional Conduct.


16


Depending on the nature of this injury, reasonable minds might be able to

disagree about weather a rating is more appropriately given to one body part

or the other. However, it is well established that a Claimant is entitled to have

a permanent partial disability rating calculated so that they receive the most

weeks possible for their permanent partial disability. See Kissah and Lay’s

Georgia Workers’ Compensation Law, (4th Ed.) Vol. 1, §16.04 [3] at 739,

citing Hiers & Potter, Georgia Workers’ Compensation Law & Practice (4th

Ed.), §17-6 at 319. Taking a position contrary to the law is likely to result in

some push back from the mediator. Additionally, if one side digs in, the other

side may decide that letting a Judge order them to act in accordance with the

law is the best way to proceed, resulting in an unsuccessful mediation.

13) During the course of negotiations, mediator asks if there is a PPD

rating. Attorney responses with, “Not yet. Claimant has been

released to full unrestricted duty and has no functional limitations

whatsoever and, for purposes of settlement, I’ve estimated the

permanent impairment rating at 90%” or “Claimant had three

surgeries and continues to complain of pain and loss of function, and,

for purposes of settlement, I have estimated the permanent

impairment rating at less than 5%.”

a) Professional?

Whether this conduct is unprofessional, likely depends on how married the

speaker is to this position. See Chief Justice’s Commission on


17

Professionalism, Professionalism CLE General Materials, v. 09-06-18,

Appendix E, “Specific Aspirational Ideals” As to the courts, other tribunals,

and those who assist them…(b) …I should…(1) Act with complete honesty; (3)

Give appropriate deference to court rulings.”

a) Ethical?

Again, whether this situation creates an ethical issue may depend on how

committed the speaker is to the position. An attorney is tasked with balancing

zealous representation with a duty of candor. See State Bar of Georgia,

Georgia Rules of Professional Conduct.

b) Likely effect on mediation/result?

If the statements are mere puffery, and the parties recognize that until any

rating is given, the value is speculative, particularly under the scenarios as

described, they hopefully will be willing to compromise their positions and

negotiate.


18

Michelle M. Thomas, Attorney/Mediator, ADR Division

Ms. Thomas joined the Alternative Dispute Resolution Division of the

Georgia State Board of Workers’ Compensation as an Attorney/Mediator on

May 1, 2018. She has an undergraduate degree in German from The College

of William and Mary in Williamsburg, Virginia, and is fluent in German. Her

law degree is from The Columbus School of Law at Catholic University in

Washington, D.C. Ms. Thomas was admitted to the State Bar of Georgia in

1996. She represented Employers/Insurers in workers’ compensation claims

from 2000 until joining the ADR division. She grew up in Athens, Georgia.


3:00 MEDIATING IN GOOD FAITH: IS IT KIND OF LIKE BUYING A USED CAR? Kimberly P. Reaves, State Board of Workers’ Compensation, Atlanta Alan J. Marks, Marks Mediation LLC, Mableton R. Craig Henderson, Henderson Mediation, Atlanta Matthew C. “Matt” Jordan, The Law Offices of Matthew C. Jordan, Atlanta


MEDIATING IN GOOD FAITH: IS IT KIND OF LIKE BUYING A USED CAR?

Kimberly P. Reaves

Attorney/Mediator, ADR Division

Georgia State Board of Workers’ Compensation

Atlanta, GA

TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

Your Mediation Road Map. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

No. 1: What line of work are you in? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

No. 2: It was only driven by a little old lady to church on Sunday . . . . . . . . . . . . . . . . . . .12

No. 3: I’ll have to talk to my manager . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

No. 4: There’s been a lot of interest in this model . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

No. 5: I’m walking away . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

No. 6: This deal is good today only . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Appendices

A: Mediators’ Biographies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

B: Lawyer’s Creed and Aspirational Statement on Professionalism . . . . . . . . . . . . . . . . 30

C: Selected Georgia Rules of Professional Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Rule 1.2: Scope of Representation

Rule 1.4: Communication

Rule 2.1: Advisor

Rule 2.4: Lawyer Serving As Third-Party Neutral

Rule 3.1: Meritorious Claims and Contentions

-i-


2

Rule 3.2: Expediting Litigation

Rule 3.4: Fairness to Opposing Party and Counsel

Rule 4.1: Truthfulness in Statements to Others

D: Ethical Standards for Neutrals/Mediators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

E: Selected Provisions of the Georgia Workers’ Compensation Act . . . . . . . . . . . . . . . . . 64

O.C.G.A. § 34-9-15: Procedure for settlement between parties generally; approval by board; finality of settlement; lump sum settlements

O.C.G.A. § 34-9-100: Filing of claims with board; investigation or mediation; hearing; dismissal of stale claims

O.C.G.A. § 34-9-200: Compensation for medical care, artificial members, and other treatment and supplies; effect of employee’s refusal of treatment; employer’s liability for temporary care

O.C.G.A. § 34-9-201: Selection of physician from panel of physicians; change of physician or treatment; liability of employer for failure to maintain panel

O.C.G.A. § 34-9-202: Examination of injured employee; request for autopsy; examination by physician designated by employee

O.C.G.A. § 34-9-206: Reimbursement for costs of medical treatment

O.C.G.A. § 34-9-240: Effect of refusal of suitable employment by injured employee; attempting or refusing to attempt work with restrictions

O.C.G.A. § 34-9-244: Reimbursement of provider of disability benefits to person who subsequently files claim

F: Selected Rules of the Georgia Board of Workers’ Compensation . . . . . . . . .. . . . . . . . .77

Rule 15: Stipulated Settlements

Rule 100: Alternative Dispute Resolution (ADR) Division

Rule 200: Compensation for Medical Care; Changes in Treatment; Filing of Medical Reports; Requests for Medical Information

Rule 201: Panel of Physicians

-ii-


3

Rule 202: Examinations

Rule 206: Reimbursement of Group Carrier or Other Healthcare Provider

Rule 240: Offer of Suitable Employment

Rule 244: Reimbursement for Payment of Disability Benefits

G: Selected Forms of the Georgia Board of Workers’ Compensation . . . . . . . . . . . . . . .96

Form WC-14: Request For Mediation/Notice Of Claim

Form WC-15: Attorney Certification For No Liability Stipulations

Form WC-100: Request for Settlement Mediation

Form WC-102D: Motion/Objection To Motion

Form WC-200a: Change Of Physician/Additional Treatment By Consent

Form WC-200b: Request/Objection For Change Of Physician/Additional Treatment

Form WC-206: Request To Become A Party At Interest [by health care provider]

Form WC-240: Notice To Employee Of Offer Of Suitable Employment

Form WC-240a: Job Analysis

Form WC-244: Request To Become A Party At Interest [by disability benefits provider]

H: Mediation Conference Record Sheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .108

I: Section 9.4.5 of the January 4, 2019, WCMSA Reference Guide from CMS . . . . . . . .111

-iii-


4

MEDIATING IN GOOD FAITH: IS IT KIND OF LIKE BUYING A USED CAR?

By Kimberly P. Reaves

Introduction

I wish that I had a dollar for every time I heard someone say that they had come

to a workers’ compensation mediation in “good faith” and another dollar for every time I

heard someone compare the process to “buying a used car.” Interestingly, the two

statements are simultaneously true. The parties are, indeed, haggling over what price is

right so that the injured worker will agree to release his or her workers’ compensation

claim and so that the employer and insurer can close their respective files. Moreover,

the “used car” analogy is fairly close to the mark when you consider the competing

considerations of an attorney trying to act ethically and professionally while negotiating

the best settlement for his or her client(s). So please fasten your seat belts as we start

our drive around the professional pot holes of mediation. Please feel free to consult the

Appendices to this paper at any time to help guide your drive through workers’

compensation mediation land.

Your Mediation Road Map

As with any legal process, the starting point should always be the applicable

statutory provisions and corresponding procedural rules; therefore, before we go any

further, let us refresh our recollections about the State Board’s process for mediating

workers’ compensation claims. Section 34-9-100(b) of the Georgia Workers’

Compensation Act provides, in pertinent part, that “[t]he board shall make or cause to


5

be made any investigation or mediation it considers necessary and, upon its own motion

or application of any interested party, order a hearing thereon and assign the claim to an

administrative law judge for review. Furthermore, the board may direct the parties to

participate in mediation conducted under the supervision and guidance of the board.”

Rule 100 of the State Board of Workers’ Compensation is key and, therefore, is

presented below in its entirety (all emphasis added by this author).

§ 100. Alternative Dispute Resolution (ADR) Division

(a) An Alternative Dispute Resolution Division is established to resolve disputes

without the necessity of a hearing.

(b) Hearing requests or motions will be screened in order to identify cases likely

to be resolved by Board order or the mediation process without a hearing.

(c) In addition, the ADR Division and each Administrative Law Judge shall have

the authority to direct the parties to attend a mediation conference when deemed

appropriate by the Board. The Board's authority to direct the parties to attend a

mediation conference shall extend to include mediation of disputes which arise in cases

designated as "Medical Only." Participation in a mediation conference shall not abridge

the rights of the parties to a subsequent evidentiary hearing or ruling on the contested

issues should the issues not be successfully resolved through mediation. An expedited

hearing may be scheduled by agreement of the parties subsequent to the conference

being held. An agreement reached at mediation will be reduced to writing and shall

have the full effect of an award or order issued by the Board. A settlement


6

agreement reached through the mediation process must be submitted and

reviewed pursuant to O.C.G.A. § 34-9-15 and Board Rule 15.

(d) Parties requesting a Board mediation for the purpose of an all

issues settlement must file a Form WC-100 certifying that all parties are in

agreement with the request for a settlement mediation and that the

employer/insurer has, or will have, by the date of the first scheduled

mediation conference, authority to resolve the claim based upon a good

faith evaluation. The Form WC-100 must be served on all parties and parties at

interest simultaneous with the board filing.

(e) Notices of Mediation will be sent by electronic mail and shall only be sent to

attorneys of record. Whenever electronic transmission is not available, a Notice of

Mediation will be sent by mail.

(f) Communications.

(1) All communications or statements, oral or written, that take place within the

context of a mediation conference are confidential and not subject to disclosure. Such

communications or statements shall not be disclosed by any mediator, party, attorney,

attendee, or Board employee and may not be used as evidence in any proceeding. An

executed Board mediation sheet or written executed agreement resulting from a

mediation is not subject to the confidentiality described above.

(2) Neither the mediator nor any 3rd party observer present with the permission

of the parties may be subpoenaed or otherwise required to testify concerning a


7

mediation or settlement negotiations in any proceeding. The mediator's notes shall not

be placed in the Board's file, are not subject to discovery, and shall not be used as

evidence in any proceeding.

(3) Confidentiality does not extend to:

(A) threats of violence to the mediator or others;

(B) security personnel or law enforcement officials;

(C) party or attorney misconduct;

(D) legal or disciplinary complaints brought against a mediator or attorney

arising out of and in the course of a mediation;

(E) appearance;

(F) the list of physicians submitted to an Administrative Law Judge by the parties

or attorneys when the parties have been ordered to submit the names of physicians in a

change of physician dispute and the dispute is not resolved through mediation.

(g) Attendance.

(1) Each party to the dispute is required to have in attendance at the

mediation conference a person or persons who have adequate authority to

resolve all pending issues. The employee shall be in attendance at the

mediation conference. The employer shall have in attendance at the

mediation conference a representative of the employer/insurer who has

authority to resolve all pending issues. The requirement of the presence of


8

the employer/insurer's representative shall not be satisfied by the presence

of legal counsel of the employer. In claims where the Subsequent Injury Trust

Fund (SITF) is a party-at-interest to the claim, a representative of the SITF must either

be in attendance at the mediation conference or have extended settlement authority to

the representative of the employer/insurer no later than two business days prior to the

date of the conference. Exceptions to the attendance requirement may be

granted upon permission of an Administrative Law Judge from the ADR

Division or his/her designee, obtained prior to the conference date.

(2) Only the parties and attorneys of record may attend a scheduled mediation.

Exceptions to attendance may be granted if agreed or consented to by the parties and

attorneys of record and approved by a mediator or an Administrative Law Judge.

(h) (1) Any party or attorney directed or ordered by the Board to

participate in or attend a mediation conference and who fails to attend the

scheduled conference without reasonable grounds may be subject to civil

penalties, attorney's fees, and/or costs. If the parties or attorneys agree to the

postponement and/or rescheduling of a mediation conference, such request may be

granted at the discretion of an Administrative Law Judge from the ADR Division or

his/her designee upon good cause shown. Any party or attorney requesting

cancellation, postponement or rescheduling of a mediation conference shall provide

notice to all parties or their attorneys and shall promptly, but in no event later than 4:30

p.m. on the business day immediately before the scheduled mediation conference, notify


9

the ADR Division of the request: (1) first, by telephone call; and (2) if so instructed by

the ADR Division, by subsequent written or electronic confirmation.

(2) Whenever the pending mediation issues resolve or a case settles prior to a

scheduled mediation date, the parties or attorneys shall immediately notify the ADR

Division: (1) first, by telephone call; and (2) if so instructed by the ADR Division, by

subsequent written or electronic confirmation.

(3) Any party or attorney who fails to follow the cancellation, postponement, or

rescheduling procedures as outlined above in sections (h)(1) & (2), and who is unable to

show good cause for such failure, may be subject to civil penalties, assessed attorney's

fees, and/or costs.

(4) The ADR Division may postpone, reset, cancel or take off the calendar any

mediation request, scheduled mediation, or Board ordered mediation.

(i) No person, party, or attorney shall, during the course of any

mediation, engage in any discourteous, unprofessional, or disruptive

conduct.

No. 1 “What Line Of Work Are You In?”

Really good sales people size up a customer through various means, including

asking seemingly innocuous questions. Anyone who has ever gone to buy a car has

inevitably been asked what they do for a living, where they live, where they are originally

from and/or where they went to school. It is, of course, the customer’s prerogative


10

whether to answer. I would even go so far as to say that it is the customer’s prerogative

to proactively state that she is an attorney who does not like aggressive sales tactics.

What does any of that have to do with mediating in good faith? Mediation is not

intended to be used as a substitute for the discovery process. The parties to a workers’

compensation claim may certainly agree to a mediation prior to the expense of ordering

medical records, taking depositions, and/or answering interrogatories, requests for

production of documents, and requests for admission. Mediating prior to discovery can

be a fine option if the parties’ attorneys have a meaningful discussion ahead of time to

determine if there is a reasonable probability they will ultimately arrive at the same,

general settlement range. If, on the other hand, the nature of the factual and legal

disputes between the parties is inextricably tied to the value of the workers’

compensation claim, then discovery should be conducted before mediation.

Not all questions are inappropriate at a mediation. Indeed, a few specific

questions at the outset of the mediation will facilitate settlement negotiations.

Questions about the following discrete topics at the outset of mediation are quite

helpful: (1) the employee’s use of group health insurance1, (2) the employee’s receipt of

benefits under a disability plan2, (3) the employee’s obligation to pay child support3; (4)

1 See § 34-9-206(a) of the Georgia Workers’ Compensation Act, providing a method for a health insurance company or health care provider to seek reimbursement of the costs of medical treatment by becoming a party at interest. See also Rule 15(n) of the Workers’ Compensation Rules, providing that settlements in compensable claims will not be approved unless all WC-206 party at interest issues are resolved.

2 See § 34-9-244(a) of the Georgia Workers’ Compensation Act, providing a method for a disability insurance company or disability benefits provider to seek reimbursement of any disability benefits paid by becoming a party at interest. See also Rule 15(n) of the Workers’ Compensation Rules, providing that settlements in compensable claims will not be approved unless all WC-244 party at interest issues are resolved.


11

the employee’s application for social security disability benefits4; and (5) the employee’s

pursuit of a third-party tort claim.5

Nevertheless, you simply do not want to put yourself (or your mediator6) in the

position of asking questions that should have been posed during depositions or through

written discovery so that you could properly advise your client regarding settlement.

Here are just a few examples of such questions. “Did the employer have a properly

posted panel of physicians?” “How many other claims for condition ‘x’ has the employer

had and the employee was able to go back to doing job ‘y’?” “Is he saying that he did not

know how to report a workers’ compensation claim?” “Didn’t she have a prior workers’

compensation claim for the same body part?”

Put another way, if you are scheduling a mediation as a sort of “fishing trip”

without any real expectation of settlement, then you may not be acting in “good faith.”

Specifically, Rule 100(d) of the State Board of Workers’ Compensation provides, in

3 See Rule 15(l) of the State Board of Workers’ Compensation, providing that “the employee shall stipulate that there are no outstanding child support liens that would prohibit full disbursement of the settlement funds in the case.”

4 See 42 USC § 1395 y(b)(3)(A). See also 42 C.F.R. §§ 411.26 and 411.32 to 411.33. See also the Center for Medicare & Medicaid Services’ WCMSA Reference Guide, Version 2.9, January 4, 2019. The interests of the Center for Medicare and Medicaid Services (“CMS”) complicates settlement for both claimants and employers/insurers, but the parties must discuss the need for a Medicare Set Aside (“MSA”) any time the claimant has a reasonable expectation of becoming Medicare-eligible within the next thirty months of settlement due to the claimant having reached retirement age or the claimant’s having applied for, received, or appealed a denial of Social Security Disability Income (“SSDI”) benefits.

5 See §§ 34-9-11 & 34-9-11.1, providing that an employee may pursue a tort claim against a third-party, other than an employee of the same employer or any person who provides workers’ compensation benefits pursuant to a contract or agreement with an employer, subject to the employer/insurer’s right to subrogation for workers’ compensation benefits paid.

6 “A mediator is the guardian of the integrity of the mediation process.” See Appendix D: Ethical Standards For Neutrals, Section IV, Subsection B and the Commentary (pp. 60 – 61).


12

pertinent part, that parties requesting mediation for the purpose of an all issues

settlement must file a Form WC-100 certifying that “all parties are in agreement” and

“that employer/insurer has, or will have by the date of the first scheduled mediation

conference, authority to resolve the claim based upon a good faith evaluation.” Further,

the Georgia Rules of Professional Conduct provide in Rule 1.2(a) that “a lawyer shall

abide by a client’s decision whether to settle a matter,” but also provide in Rule 2.1 that

“a lawyer should not be deterred from giving candid advice by the prospect that the

advice will be unpalatable to the client.” Consider also the Lawyer’s Creed and

Aspirational Statement on Professionalism, which includes the following among its

specific aspirational ideals: “as to clients, I will aspire: (a) to expeditious and economical

achievement of all client objectives.”

No. 2 “It Was Only Driven By A Little Old Lady To Church On Sunday.”

A good sales person will not hesitate to point out the wonderful attributes of any

car being considered by a customer. The customer will have to discern whether the

salesman is “puffing”. Some customers (perhaps those making their living as

attorneys?) will be better able to determine whether they are hearing “an expression of

opinion by the seller not made as a representation of fact.” 7

What does this have to do with mediating? Any attorney will counsel his or her

client about testifying truthfully at a hearing. The prudent attorney will do the same at a

mediation. Specifically, he or she will not let the negotiation process subsume his or her

ethical and professional obligations.

7 BLACK’S LAW DICTIONARY 1233 (6th ed. 1990).


13

Here are just a few possible scenarios that might find you veering from “puffing”

territory into potentially unethical territory at a mediation. “Mr. Claimant was unable to

get to the doctor because of transportation problems.” “Ms. Claimant was unable to

come try the light duty job approved by the authorized treating physician because her

child was sick.” “The employer is finishing the WC-240a job description to be submitted

to the authorized treating physician at the claimant’s next appointment.” “The employer

is committed to making light duty work available indefinitely.”

If the foregoing are true statements, then there is no problem; but, if you feel any

doubt, then do not go there. Remember that Rule 4.1 of the Georgia Rules of

Professional Conduct provides, in pertinent part, that “in the course of representing a

client a lawyer shall not knowingly (a) make a false statement of material fact or law to a

third person.” Consider also the Lawyer’s Creed and Aspirational Statement on

Professionalism, which includes the following among its specific aspirational ideals: “to

the opposing parties and their counsel, I offer fairness, integrity and civility.”

No. 3 “I’ll Have To Talk To My Manager.”

When trying to finalize a car purchase, a customer may suddenly hear the

following words: “I’ll have to talk to my manager.” This is typically what happens when

the customer is trying to get a few more dollars for the trade-in vehicle or a better

interest rate on the financing. There is certainly nothing wrong with a customer trying

to “sweeten the deal” and it is indeed possible that the sales person may legitimately

need to obtain managerial approval to accept the term being proposed by the customer.


14

Something similar may happen at a mediation. The question of whether what is

occurring is “bad faith” can only be answered in context. For example, some settlements

may need to be contingent upon variables over which neither party has absolute control.

For one example, some municipal employers like a County Board of Education have to

submit proposed settlements to the Board for a vote before a workers’ compensation

settlement agreement can be finalized on the defense side. For another example, the

employee may need to obtain a written statement from the Child Support Division of the

Department of Family and Children Service regarding the amount of any child support

arrearages before being able to agree to a full and final settlement. Indeed, all workers’

compensation settlements are contingent settlements because they require approval

from the Board of Workers’ Compensation8.

Outside of the foregoing contexts, the question of whether the opposing party is

acting in bad faith gets trickier. There are some inherent tensions between the

expediency of and the logistics of settlement mediations. As a general rule, mediation is

less complicated, logistically, for the claimant’s attorney. They generally have one client

and that client will be in attendance to say “yay” or “nay” when the best and final offer is

made on behalf of the employer/insurer. Things are generally more complicated for the

attorney on the employer/insurer side. On the defense side, the attorney is frequently

engaged in dual representation of both the employer and the employer’s insurance

carrier, and their respective interests may sometimes diverge.9 Where there is an

8 See §§ 34-9-15 and 34-9-100 of the Georgia Workers’ Compensation Act. See also Rules 15 and 100 of the Rules and Regulations of the State Board of Workers’ Compensation.

9 See Rule 1.7 of the Georgia Rules of Professional Conduct.


15

insurance policy, the settlement funds may be coming solely from the employer

(deductible or retention level not yet met), solely from the insurance company, or from

both the employer and insurer (settlement will exceed the deductible or retention level).

Accordingly, the attorney for the employer/insurer may very well need to call, text

and/or email his clients during a mediation.

Attorneys on the claimants’ side may rightly contend that the employer/insurer

consistently fails to comply with the attendance requirements for workers’

compensation mediations. Rule 100(g) of the State Board of Workers’ Compensation

does provide, in pertinent part, that “the employer shall have in attendance at the

mediation conference a representative of the employer/insurer who has authority to

resolve all pending issues. The requirement of the presence of the employer/insurer’s

representative shall not be satisfied by the presence of legal counsel of the employer . . . .

Exceptions to the attendance requirement may be granted upon permission of an

Administrative Law Judge from the ADR Division or his/her designee, obtained prior to

the conference date.”

At this point, I would recommend that all attorneys on the defense side stop and

ask themselves the following questions. How many times you have simply taken for

granted that no employer or carrier representative needed to be present? Did you

contact opposing counsel prior to the mediation to request his or her client’s consent?

Did you contact the ADR Division prior to the mediation to obtain permission?

Additionally, I would recommend that all attorneys on the claimant’s side stop and ask

themselves the following question. How many times have you expected to be able to


16

present the formal Stipulation and Agreement to your client for signature immediately

following the conclusion of the settlement mediation? Is that expectation in compliance

with the Board’s Rules? Did you bring copies of your fee agreement and list of

expenses? If settling on a no-liability basis, did you also bring a completed WC-15?

Section 34-9-15(a) of the Georgia Workers’ Compensation Act provides, in

pertinent part, that “a workers’ compensation insurer shall not be authorized to settle a

claim without giving prior notice to such employer of the terms of the settlement

agreement” and Rule 15(c) of the State Board of Workers’ Compensation provides, in

pertinent party, that “the insurer shall certify that it has complied with O.C.G.A. § 34-9-

15 by having sent a copy of the proposed settlement to the employer prior to any party

having signed it.” Could the defense attorney perhaps email the document to the

employer during the mediation? Of course, but that presumes the Stipulation and

Agreement is drafted prior to mediation or that the claimant and his/her attorney is

willing to wait for the Stipulation and Agreement to be prepared once the parties have

agreed to a number.

From a logistical standpoint, also pause to consider that trying to get a

representative of both the employer and the insurer to a mediation may result in

multiple re-settings of the mediation date and may actually decrease the odds of a

successful mediation because of the inherent tensions between the employer and the

insurer. Accordingly, the best option may be agreeing to allow the attorney on the

defense side to call, email, or text the employer and/or the insurer in order to obtain

additional settlement authority. The best practice, of course, is to have a discussion with


17

opposing counsel prior to mediation and confirm he/she has the ADR Division’s

approval to excuse the presence of the employer and insurer. As for the Stipulation and

Agreement, the better practice may be to agree that it can be emailed to the

employer/insurer once a number is agreed upon and that it can be prepared prior to

mediation based upon a reasonable probability of a meeting of the minds. In this

regard, the requirements of insurers regarding when and how much defense attorneys

can bill for tasks varies widely, so this may simply not be possible.

In sum, workers’ compensation practitioners may wish to consider having a brief

phone call prior to mediation to at least discuss: (1) waiving the requirement for the

employer and/or the insurer to attend the mediation; (2) whether settlement documents

will be available at the mediation if the parties reach an agreement; and (3) any other

potential contingencies such as obtaining a County Board’s vote of approval or a

statement of the claimant’s child support arrears. A little professionalism in this regard

should go a long way towards increasing the odds of settlement at mediation.

No. 4 “There’s Been A Lot Of Interest In This Model.”

If a sales person senses that a potential car buyer’s enthusiasm is waning, then

she may try to instill a sense of urgency by implying that there are other buyers

interested in the model. The statement is typically along the lines of the following:

“there’s been a lot of interest in this model”. Whatever form the seller’s statement takes,

the intended effect is the same: make the customer fear he will be missing out if he does

not agree to buy the car now.


18

During a workers’ compensation mediation, a similar message may be conveyed

at any time on behalf of the employer/insurer. While it is certainly possible that the

employer and/or insurer are bluffing, that is not inevitably the case. For example, many

self-insured employers, such as governmental entities, have a limited pool of funds

available for settlements towards the end of each fiscal year. Accordingly, their workers’

compensation claims are reviewed for those with the highest potential for settlement

and are negotiated in the order in which settlement demands are received and

corresponding settlement authority given. If a claim does not settle within the

authorized parameters, then the money may go back into the pool of funds for

application to the next claim. So, within these parameters, a statement that “the

employer is working with a limited pool of funds” is not equivalent to negotiating in

“bad faith.”

Similarly, the majority of insurers make every effort to close workers’

compensation claim files as soon as possible. There are multiple reasons for this

phenomenon, but among the factors are: (a) the number of claims which can be

efficiently administered at any one time; and (b) the timing of the renewal of an

employer’s policy. Within those parameters, a statement that “the insurer would like to

close the file this year” is not equivalent to negotiating in “bad faith.”

I am not suggesting that claimants’ attorneys take all statements from opposing

counsel during a mediation on faith. It is certainly within the bounds of professional

conduct to test any statements conveyed by defense counsel at a mediation. Any

information gleaned should then be shared candidly with the claimant as it is ultimately


19

the claimant’s decision whether to accept a settlement. In this regard, consider the

following portion of Rule 1.2 of the Georgia Rules of Professional Conduct: “[a] lawyer

shall abide by a client’s decision whether to settle a matter.” Also in this regard,

consider the following specific aspirational ideal of the Lawyer’s Creed: “As to clients, I

will aspire: (a) to fully informed client decision-making.”

No. 5 “I’m Walking Away.”

If a potential car buyer senses that the salesperson is not offering the best deal

possible, then she may try to generate the anxiety of failing to close a deal in the

salesperson. The potential car buyer may say something along the lines of “I’m walking

away”, hoping that the salesperson will respond along the lines of “okay, wait a minute.”

A claimant at a workers’ compensation mediation may attempt to exert a similar type of

anxiety in an employer/insurer by stating that his bottom line is “x dollars” or his next

step will be exercising the right to an “independent medical evaluation” or “change of

treating physician.” Whether the claimant is negotiating in “bad faith” by making one of

these statements can only be determined by defense counsel in the context of the given

mediation.

As to “independent medical evaluations,” Section 34-9-202(e) of the Georgia

Workers’ Compensation Act provides, in pertinent part, that “[n]otwithstanding the

rights afforded to an employee under Code Section 34-9-201, the employee, after an

accepted compensable injury and within 120 days of receipt of any income benefits,

shall have the right to one examination at a reasonable time and place, within this state

or within 50 miles of the employee’s residence, by a duly qualified physician or surgeon


20

designated by the employee and to be paid for by the employer.” Board Rule 202(e)

provides that “within 120 days of the employee’s receipt of any income benefits, the

employee shall provide written notice to the employer/insurer of his/her intent to

exercise the right to have a one-time independent medical evaluation at a reasonable

time and place.”

If no income benefits have been paid or if the last payment of income benefits

was more than 120 days prior to the mediation, then the claimant’s attorney may be

“bluffing.” On the other hand, if there is a reasonable probability that another

neurologist or surgeon, for example, could recommend further treatment or surgery,

then this is a real risk for defendants.

As to “changes of physician,” Section 34-9-201(b)(1) of the Georgia Workers’

Compensation Act provides, in pertinent part, that “[t]he employee may make one

change from one physician to another on the same panel without prior authorization of

the board.” See also Board Rule 201(a)(1)(i). Board Rule 201(b) provides, in pertinent

part, that “if the controverted claim is subsequently found to be or is accepted as

compensable, the employee is authorized to select one of the physicians who has

provided treatment for the work-related injury . . . The employee may thereafter make

one change from that physician to another physician without approval of the employer

and without an order of the Board.” Board Rule 201(c) provides, in pertinent part, that

“when a case has not been controverted but the employer fails to provide any of the

procedures for selection of physicians as set forth in O.C.G.A. § 34-9-201(c), the

employee is authorized to select a physician who is not listed on the employer’s posted


21

panel of physicians or WC/MCO . . . and the employee may make one change from that

physician to another physician without approval of the employer and without an order

of the Board.”

If there is a valid of panel of physicians and the employee has already exercised

the right to change her physician to another on that panel (preferably, as documented

on a Board Form 200a filed with the Board), then the claimant’s attorney may be

“bluffing.” On the other hand, if the insurer controverted the claim or if the employer

failed to properly post a panel of physicians or notice of a workers’ compensation

managed care organization, and the initial designation of treating physician has not yet

occurred, then this may be a risk for defendants.

In any case, the professional attorney will convey all new information gleaned

during the course of the mediation to his or her client using the most expeditious

method available (e.g., in person or via email, text, or phone). In this regard, consider

the following portion of Rule 2.1 of the Georgia Rules of Professional Conduct: “in

representing a client, a lawyer shall . . . render candid advice.” Consider also the

following Specific Aspirational Ideal of the Lawyer’s Creed: “As to clients, I will aspire:

(b)(4) to communicate promptly and clearly.”

No. 6 “This Deal Is Good Today Only.”

Once a salesperson has made the best offer authorized by his dealership, then he

may make a final attempt to close the deal by telling the prospective buyer that the “deal

is good today only.” A cautious buyer will make her own decision regarding whether

that is indeed the case by considering all pertinent factors such as whether it is the end


22

of the day, the month or the year and how many similar models appear to be on the

dealership’s lot.

In the context of a workers’ compensation mediation, the attorney for an

employer/insurer may make a statement similar to one of the following once the best

and final offer has been conveyed to the claimant’s attorney. “If that offer is not

acceptable, then the employer/insurer will be proceeding with requesting that the

authorized treating physician order a functional capacity and/or permanent partial

disability evaluation, approve a 240A job description, or answer a questionnaire

regarding causation/medical necessity.” “If that offer is not acceptable, then the

employer/insurer will be proceeding with a second opinion and/or a change of

physician.”

It is expected that the claimant’s attorney will test the employer/insurer’s resolve

in this regard; however, before immediately assuming that this is “bluffing,” the prudent

and professional attorney will consider the history of the claim. Specifically, the

attorney will consider Section 34-9-200(c) of the Georgia Workers’ Compensation Act,

which provides, in pertinent part, that “[a]s long as an employee is receiving

compensation, he or she shall submit himself or herself to examination by the

authorized treating physician at reasonable times.” “If the employee refuses to submit

himself or herself to or in any way obstructs such an examination requested by and

provided for by the employer, upon order of the board his or her right to compensation

shall be suspended until such refusal or objection ceases . . .” See also Board Rule

200(c). If the claimant has been less than fully cooperative in attending scheduled


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appointments with the authorized treating physician for whatever reason(s), then he

may be at risk of a motion to suspend benefits.

The prudent and professional claimant’s attorney will also consider Section 34-9-

240(a) of the Georgia Workers’ Compensation Act, providing, in pertinent part, that “[i]f

an injured employee refuses employment procured for him or her and suitable to his or

her capacity, such employee shall not be entitled to any compensation, except benefits

pursuant to Code Section 34-9-263, at any time during the continuance of such refusal

unless in the opinion of the board such refusal was justified.” Consider also Section 34-

9-240(b)(1) of the Georgia Workers’ Compensation Act, which provides, in pertinent

part, that “if such employee attempts the proffered job for eight cumulative hours or one

scheduled workday, whichever is greater, but is unable to perform the job for more than

15 working days, then weekly benefits shall be immediately reinstated, and the burden

shall be on the employer to prove that such employee is not entitled to continuing

benefits.” See also Board Rule 240. If there is any possibility that the claimant will fail

to show up and make a good faith attempt to perform a job approved by the authorized

treating physician for the requisite period of time, then she may be at risk of a motion to

suspend income benefits for unjustifiably refusing suitable employment.

The foregoing risks, while unpalatable, must be conveyed to the claimant during

settlement negotiations. Rule 2.1 of the Georgia Rules of Professional Conduct provides,

in pertinent part, that “in representing a client, a lawyer shall exercise independent

professional judgement and render candid advice.” The Lawyer’s Creed also includes

the following among its Specific Aspirational Ideals: “as to clients, I will aspire (b) to


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fully informed client decision-making.” “As a professional, I should: (3) maintain the

sympathetic detachment that permits objective and independent advice to clients.”

Conclusion

Please do not hesitate to consult your mediator regarding any potentially ethical

or professional issues that may arise during a mediation. I look forward to seeing you at

a mediation conference in the near future.


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APPENDIX A: MEDIATORS’ BIOGRAPHIES


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Kimberly P. Reaves, Attorney/Mediator, ADR Division

Ms. Reaves joined the Alternative Dispute Resolution Division at the Georgia State Board of Workers’ Compensation as an Attorney/Mediator on March 1, 2013, following approximately five years as an Assistant Attorney General in the Workers’ Compensation Section at the Georgia Department of Law, where she represented all State agencies before the Georgia State Board of Workers’ Compensation, and approximately twelve years in private practice in North Carolina, where she represented insured and self-insured employers before the North Carolina Industrial Commission. Ms. Reaves was admitted to the State Bar of North Carolina in 1996 and to the State Bar of Georgia in 2008. She is married to Mr. Robert E. Stachler, II, also an attorney, and her main hobby is their standard poodle, Georgette. Ms. Reaves’ mediation motto is embodied in this quote from the writer Ambrose Bierce: “Speak when you are angry and you will make the best speech you will ever regret.” CONTACT: [email protected]; 404-657-3830.


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Alan J. Marks, ESQ.

Marks Mediation, LLC

1400 Veterans Memorial Hwy, Suite 134 #209, Mableton, GA 30126;

marksmediation.com; 770-290-0551; [email protected]

The seed that led to Marks Mediation, LLC was planted in the spring of 1991. It was then that my left knee was severely injured while serving as a firefighter for the Fire Department of New York City. Unexpectedly, I was catapulted into the world of workers’ compensation. What a ride it has been!

In 1996, after years of physical therapy, injections, surgery and rehabilitation my orthopedic surgeon informed me that I could not perform the duties of a firefighter any longer. I was forced into early retirement. Fortunately, I had anticipated this day and enrolled in St. John’s University School of Law two years earlier.

Since entering the practice of law, I have worked in private practice as a defense attorney and claimant’s attorney. I’ve also served as a mediator for the Georgia State Board of Workers’ Compensation. I affectionately tell friends that I’ve worked on the defense side, on the claimant’s side and on the inside, all while being an injured worker.

This highlights my unique perspective; I relate to the injured worker. I have literally lived in their shoes and felt their pain. I also relate to the claimant and defense attorney. Like very few others, I truly understand the pressures that come to bear on all players at the mediation conference.

My unique perspective builds bridges using genuine empathy, understanding and objectivity.

These are the reasons I ask you to use Marks Mediation, LLC.

I look forward to helping you carve a path toward claim resolution.


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R. CRAIG HENDERSON, ESQ. HENDERSON MEDIATION HENDERSONMEDIATION.COM P.O. BOX 450151, ATLANTA, GA 31145 678-243-0831 [email protected] Craig Henderson has mediated over three thousand claims as a mediator for the Georgia State Board of Workers’ Compensation and in private practice. He has represented injured workers and employer and insurers in mediations and hearings across the state. He is a frequent speaker at Continuing Legal Education seminars, addressing topics such as successful mediation and professional and ethical concerns of the parties. Along with his practice, Craig has been an adjunct faculty member at Atlanta’s John Marshall Law School. He is devoted to the process of the parties having an opportunity to be heard and addressing their concerns to creatively resolve their issues. Mr. Henderson is also a published author. His first novel, Penance, issued in 2016, and his second novel, Solemn Vows Mission Continued, issued in 2017. He is presently working on a third novel in the Lieutenant Colonel Paul Richter series. Mr. Henderson and his wife are both natives of Atlanta. They have two children, and several animals of different species and dispositions.


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Matthew C. Jordan, Esq. Matt Jordan’s practice is focused on helping Georgia’s workers obtain benefits when they are injured on the job. He is also a registered civil mediator and is frequently asked to help parties resolve workers’ compensation claims. Additionally, he serves as a Judge in the Municipal Court of Athens-Clarke County, Georgia. Matt has earned the AV Rating from Martindale-Hubbell, a distinction that signifies he has reached the pinnacle of the legal profession as determined by peer review. He is a 2011 graduate of the Leadership Academy of the State Bar of Georgia. He currently serves as a member of the Ethics Committee for the State Board of Workers’ Compensation’s Steering Committee and on the Board of Directors for the Workers’ Compensation Section of the Atlanta Bar Association. On May 1, 2018, Matt founded The Law Office of Matthew C. Jordan, where he represents injured workers from offices in Atlanta and Athens and operates a statewide mediation practice. Prior to starting his own firm, Matt was a partner with The Law Offices of Benjamin Y. Gerber. Previously, Matt worked for over five years representing insurance companies, self-insured employers, and third-party administrators in defense of workers’ compensation claims. He began his legal career serving as an Assistant District Attorney in Athens, Georgia. Matt graduated from College of Charleston with degrees in business and communication. He studied law at Cumberland School of Law at Samford University. While attending law school, Matt served as the Chief Judge of the Trial Advocacy Board and was a member of Cumberland School of Law’s respected National Trial Team. He was the recipient of the Papantonio Trial Advocacy Award, the James O. Haley Scholarship, and the Scholar of Merit Award for Advanced Trial Advocacy. In 2005, he was inducted into The Order of Barristers. Matt and his wife, Cathrine, who is also an attorney, live in downtown Atlanta. He is active in his community, serving on several neighborhood boards and committees. He enjoys spending his free time with his family and rescue dogs and also enjoys exploring the outdoors and riding motorcycles. The Law Office of Matthew C. Jordan, LLC 404-220-9805 (Atlanta) 706-850-7070 (Athens) [email protected]


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To the public and our systems of justice, I offer service. I will strive to improve

the law and our legal system, to make the law and our legal system available to all, and

to seek the common good through the representation of my clients.

ASPIRATIONAL STATEMENT ON PROFESSIONALISM

The court believes that there are unfortunate trends of commercialization and

loss of professional community in the current practice of law. These trends are

manifested in an undue emphasis on the financial rewards of practice, a lack of courtesy

and civility among members of our profession, a lack of respect for the judiciary and for

our system of justice, and a lack of regard for others and for the common good. As a

community of professionals, we should strive to make the internal rewards of service,

craft, and character, and not the external reward of financial gain, the primary rewards

of the practice of law. In our practices we should remember that the primary

justification for who we are and what we do is the common good we can achieve through

the faithful representation of people who desire to solve their disputes in a peaceful

manner and to prevent future disputes. We should remember, and we should help our

clients remember, that the way in which our clients resolve their disputes defines part of

the character of our society and we should act accordingly.

As professionals, we need aspirational ideals to help bind us together in a

professional community. Accordingly, the Court issues the following Aspirational

Statement setting forth general and specific aspirational ideas of our profession. This

statement is a beginning list of the ideals of our profession. It is primarily illustrative.

Our purpose is not to regulate, and certainly not to provide a basis for discipline, but


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rather to assist the Bar’s efforts to maintain a professionalism that can stand against the

negative trends of commercialization and loss of community. It is the Court’s hope that

Georgia’s lawyers, judges, and legal educators will use the following aspirational ideals

to reexamine the justifications of the practice of law in our society and to consider the

implications of those justifications for their conduct. The Court feels that enhancement

of professionalism can be best brought about by the cooperative efforts of the organized

bar, the courts, and the law schools with each group working independently, but also

jointly in that effort.

General Aspirational Ideals

As a lawyer, I will aspire:

(a) To put fidelity to clients, and through clients, to the common good, before selfish

interests.

(b) To model for others, and particularly for my clients, the respect due to those we call

upon to resolve our disputes and the regard due to all participants in our dispute

resolution processes.

(c) To avoid all forms of wrongful discrimination in all of my activities including

discrimination on the basis of race, religion, sex, age, handicap, veteran status, or

national origin. The social goals of equality and fairness will be personal goals for me.

(d) To preserve and improve the law, the legal system, and other dispute resolution

processes as instruments for the common good.


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(e) To make the law, the legal system, and other dispute resolution processes available

to all.

(f) To practice with a personal commitment to the rules governing our profession and to

encourage other to do the same.

(g) To preserve the dignity and the integrity of our profession by my conduct. The

dignity and the integrity of our profession is an inheritance that must be maintained by

each successive generation of lawyers.

(h) To achieve the excellence of our craft, especially those that permit me to be the

moral voice of clients to the public in advocacy while being the moral voice of the public

to clients in counseling. Good lawyering should be a moral achievement for both the

lawyer and the client.

(i) To practice law not as a business, but as a calling in the spirit of public service.

Specific Aspirational Ideals

As to clients, I will aspire:

(a) To expeditious and economical achievement of all client objectives.

(b) To fully informed client decision-making. As a professional, I should:

(1) Counsel clients about all forms of dispute resolution;

(2) Counsel clients about the value of cooperation as a means towards the productive

resolution of disputes;


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(3) Maintain the sympathetic detachment that permits objective and independent

advice to clients;

(4) Communicate promptly and clearly with clients; and

(5) Reach clear agreements with clients concerning the nature of the representation.

(c) To fair and equitable fee agreements. As a professional, I should:

(1) Discuss alternative methods of charging fees with all clients;

(2) Offer fee arrangements that reflect the true value of the services rendered;

(3) Reach agreements with clients as early in the relationship as possible;

(4) Determine the amount of fees by consideration of many factors and not just time

spent by the attorney;

(5) Provide written agreements as to all fee arrangements; and

(6) Resolve all fee disputes through the arbitration methods provided by the State

Bar of Georgia.

(d) To comply with the obligations of confidentiality and the avoidance of conflicting

loyalties in a manner designed to achieve the fidelity to clients that is the purpose of

these obligations.

As to opposing parties and their counsel, I will aspire:

(a) To cooperate with opposing counsel in a manner consistent with the competent

representation of all parties. As a professional, I should:


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(1) Notify opposing counsel in a timely fashion of any cancelled appearance;

(2) Grant reasonable requests for extensions or scheduling changes; and,

(3) Consult with opposing counsel in the scheduling of appearances, meetings, and

depositions.

(b) To treat opposing counsel in a manner consistent with his or her professional

obligations and consistent with the dignity of the search for justice. As a professional, I

should:

(1) Not serve motions or pleadings in such a manner or at such a time to preclude

opportunity for a competent response;

(2) Be courteous and civil in all communications;

(3) Respond promptly to all requests by opposing counsel;

(4) Avoid rudeness and other acts of disrespect in all meetings including depositions

and negotiations;

(5) Prepare documents that accurately reflect the agreement of all parties; and

(6) Clearly identify all changes made in documents submitted by opposing counsel

for review.

As to the courts, other tribunals, and to those who assist them, I will aspire:

(a) To represent my clients in a manner consistent with the proper functioning of a fair,

efficient, and humane system of justice. As a professional, I should:


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(1) Avoid non-essential litigation and non-essential pleading in litigation;

(2) Explore the possibilities of settlement of all litigated matters;

(3) Seek non-coerced agreement between the parties on procedural and discovery

matters;

(4) Avoid all delays not dictated by a competent representation of a client’s claims;

(5) Prevent misuses of court time by verifying the availability of key participants for

scheduled appearances before the court and by being punctual; and,

(6) Advise clients about the obligations of civility, courtesy, fairness, cooperation,

and other proper behavior expected of those who use our systems of justice.

(b) To model for others the respect due to our courts. As a professional I should:

(1) Act with complete honesty;

(2) Know court rules and procedures;

(3) Give appropriate deference to court rulings;

(4) Avoid undue familiarity with members of the judiciary;

(5) Avoid unfounded, unsubstantiated, or unjustified public criticism of members of

the judiciary;

(6) Show respect by attire and demeanor;

(7) Assist the judiciary in determining the applicable law; and


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(8) Seek to understand the judiciary’s obligations of informed and impartial

decision-making.

As to my colleagues in the practice of law, I will aspire:

(a) To recognize and to develop our interdependence;

(b) To respect the needs of others, especially the need to develop as a whole person; and,

(c) To assist my colleagues become better people in the practice of law and to accept

their assistance offered to me.

As to our profession, I will aspire:

(a) To improve the practice of law. As a professional, I should:

(1) Assist in continuing legal education efforts;

(2) Assist in organized bar activities; and,

(3) Assist law schools in the education of our future lawyers.

(b) To protect the public from incompetent or other wrongful lawyering. As a

professional, I should:

(1) Assist in bar admissions activities;

(2) Report violations of ethical regulations by fellow lawyers; and,

(3) Assist in the enforcement of the legal and ethical standards imposed upon all

lawyers.


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As to the public and our system of justice, I will aspire:

(a) To counsel clients about the moral and social consequences of their conduct.

(b) To consider the effect of my conduct on the image of our systems of justice including

the social effect of advertising methods. As a professional, I should ensure that any

advertisement of my services:

(1) Is consistent with the dignity of the justice system and a learned profession;

(2) Provides a beneficial service to the public by providing accurate information

about the availability of legal services;

(3) Educates the public about the law and the legal system;

(4) Provides completely honest and straightforward information about my

qualifications, fees, and costs; and

(5) Does not imply that clients’ legal needs can be met only through aggressive

tactics.

(c) To provide the pro bono representation that is necessary to make our system of

justice available to all.

(d) To support organizations that provide pro bono representation to indigent clients.

(e) To improve our laws and legal system by, for example:

(1) Serving as a public official;

(2) Assisting in the education of the public concerning our laws and legal system;


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(3) Commenting publicly upon our laws; and

(4) Using other appropriate methods of effecting positive change in our laws and

legal system.

© Copyright MMXVII State Bar of Georgia


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APPENDIX C

Selected Georgia Rules of Professional Conduct10

Rule 1.2 Scope Of Representation And Allocation Of Authority Between Client And Lawyer

(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning the scope and objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

(b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social, or moral views or activities.

(c) A lawyer may limit the scope and objectives of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

(d) A lawyer shall not counsel a client to engage in conduct that the lawyer knows is criminal or fraudulent, nor knowingly assist a client in such conduct, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

The maximum penalty for a violation of this Rule is disbarment.

Rule 1.4 Communication

(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined by Rule 1.0(h), is required by these Rules;

10 Note: The Comments to these selected Georgia Rules of Professional Conduct have been omitted for the purpose of brevity, but are invaluable to a complete understanding of these selected (and all other) Georgia Rules of Professional Conduct.


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(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct of other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

The maximum penalty for a violation of this Rule is a public reprimand.

Rule 2.1 Advisor

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. A lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.


Rule 2.4 Lawyer Serving As Third-Party Neutral

(a) A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. Service as a third-party neutral may include service as an arbitrator, a mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter.

(b) A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer’s role in the matter, the lawyer shall explain the difference between the lawyer’s role as a third-party neutral and the lawyer’s role as one who represents a client.

(c) When one or more of the parties in a mediation is a current or former client of the neutral lawyer or the neutral’s law firm, a lawyer may serve as a neutral only if the matter in which the lawyer serves as a neutral is not the same matter in which the lawyer or law firm represents or represented the party and all parties give informed consent, confirmed in writing.



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Rule 3.1 Meritorious Claims and Contentions

In the representation of a client, a lawyer shall not:

(a) file a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of the client when the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injure another;

(b) knowingly advance a claim or defense that is unwarranted under existing law, except that the lawyer may advance such claim or defense if it can be supported by good faith argument for an extension, modification or reversal of existing law.


Rule 3.2 Expediting Litigation

A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

The maximum penalty for violation of this Rule is a public reprimand.

Rule 3.4 Fairness To Opposing Party And Counsel

A lawyer shall not:

(a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

(b)

(1) falsify evidence;

(2) counsel or assist a witness to testify falsely; or

(3) pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the testimony or the outcome of the case. But a lawyer may advance, guarantee, or acquiesce in the payment of:

(i) expenses reasonably incurred by a witness in preparation, attending or testifying; or

(ii) reasonable compensation to a witness for the loss of time in preparing, attending or testifying; or


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(iii) a reasonable fee for the professional services of an expert witness;

(c) Reserved;

(d) Reserved;

(e) Reserved;

(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:

(1) the person is a relative or an employee or other agent of a client; or the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information; and

(2) the information is not otherwise subject to assertion of a privilege by the client;

(g) use methods of obtaining evidence that violate the legal rights of the opposing party or counsel; or

(h) present, participate in presenting or threaten to present criminal charges solely to obtain an advantage in a civil matter.


Rule 4.1 Truthfulness In Statements To Others

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; or

(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.


© Copyright MMXVII State Bar of Georgia


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APPENDIX D

CHAPTER 1: ETHICAL STANDARDS FOR NEUTRALS

A. Ethical Standards for Mediators

IN JUNE, 1994, THE GEORGIA COMMISSION ON DISPUTE RESOLUTION TURNED ITS ATTENTION

TO THE DEVELOPMENT OF A CODE OF ETHICAL BEHAVIOR FOR MEDIATORS SERVING COURT PROGRAMS

IN GEORGIA. WE INITIATED A DIALOGUE WITH PRACTICING MEDIATORS IN THE STATE. THIS DIALOGUE

SERVED AS THE STARTING POINT FOR THE DEVELOPMENT OF THE CODE.

THE CODE CONSISTS OF TWO PARTS. THE FIRST PART CONTAINS STANDARDS OF PRACTICE, THE

FOUNDATION OF ETHICAL BEHAVIOR BY MEDIATORS. BECAUSE THE COMMISSION IS COGNIZANT OF

THE LIMITED GUIDANCE PROVIDED THROUGH MERE ARTICULATION OF STANDARDS, COMMENTARY,

INCLUDING SPECIFIC EXAMPLES FROM PRACTICE, ACCOMPANIES EACH STANDARD, ENHANCING AND

STRENGTHENING THIS FOUNDATION.

SPECIFIC PRACTICE RULES, TREATING MATTERS OF CONDUCT WHICH ARE SETTLED AND DO NOT

LEND THEMSELVES TO THE EXERCISE OF DISCRETION ON THE PART OF THE MEDIATOR, APPEAR AS PART

V. RULES OF FAIR PRACTICE.

INTRODUCTION

The Georgia Commission on Dispute Resolution believes that ethical standards for mediators

can be most easily understood in the context of the three fundamental promises that the mediator

makes to the parties in explaining the process: 1) the mediator will protect the self-determination of

the parties; 2) the mediator will protect the confidentiality of the mediation process; 3) the mediator is a

neutral who is impartial and is without bias or prejudice toward any party. Besides maintaining fidelity

to these principles, a mediator acts as guardian of the overall fairness of the process.

I. SELF-DETERMINATION/VOLUNTARINESS.

Where the court orders that parties participate in a dispute resolution process other than trial,

the process must be non-binding so as not to interfere with parties’ constitutional right to trial. To that


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extent, all court-ordered ADR processes are voluntary. However, the self-determination of the parties

which is a hallmark of mediation is of a different and far more subtle order.

Commentary: The Georgia Commission on Dispute Resolution accepts the proposition that self-

determination of the parties is the most critical principle underlying the mediation process. Control of

the outcome by the parties is the source of the power of the mediation process. Further, it is the

characteristic which may lead to an outcome superior to an adjudicated outcome.

Self-determination is a difficult goal in our society in which people seem often unwilling to

assume responsibility for their own lives, anxious for someone else to make the decisions for them.

Mediation is antithetical to this attitude.

A. In order for parties to exercise self-determination they must understand the mediation process and

be willing to participate in the process. A principal duty of the mediator is to fully explain the mediation

process. This explanation should include:

1. An explanation of the role of the mediator as a neutral person who will facilitate the

discussion between the parties but who will not coerce or control the outcome;

2. An explanation of the procedure which will be followed during the mediation session;

3. An explanation of the pledge of confidentiality which binds the mediator and any

limitations upon the extent of confidentiality;

4. An explanation of the fact that the mediator will not give legal or financial advice and

that if expert advice is needed, parties will be expected to refer to outside experts;

5. An explanation that where participation is mandated by the court, the participation of

the parties is all that is required and settlement cannot be mandated;

6. An explanation that the mediation can be terminated at any time by the mediator or

the parties;


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7. An explanation that parties who participate in mediation are expected to negotiate in

an atmosphere of good faith and full disclosure of matters material to any agreement

reached;

8. An explanation that the parties are free to consult legal counsel at any time and are

encouraged to have any agreement reviewed by independent counsel prior to signing;

9. An explanation that a mediated agreement, once signed, can have a significant effect

upon the rights of the parties and upon the status of the case.

10. An explanation that the parties, by their participation, affirm that they have the

capacity to conduct good-faith negotiations and to make decisions for themselves,

including a decision to terminate the mediation if necessary.

B. The mediator has an obligation to assure that every party has the capacity to participate in the

mediation conference. Where an incapacity cannot be redressed, the mediation should be rescheduled

or canceled.

Self-determination includes the ability to bargain for oneself alone or with the assistance of an

attorney. Although the mediator has a duty to make every effort to address a power imbalance, this

may be impossible. At some point the balance of power may be so skewed that the mediation should

be terminated.

Commentary: Georgia mediators are confident of their ability to recognize serious incapacity.

Situations in which there is a subtle incapacity are more troubling. Several mediators expressed concern

about situations in which they questioned capacity to bargain but felt certain that the agreement in

question would be in the best interest of the party and that going to court would be very traumatic.

Should the mediation be terminated because of suspected incapacity if mediation is the gentler forum for

a fragile person and the agreement which the other party is willing to make is favorable? Does the

mediator’s substituting his or her judgment for the judgment of the party destroy any possibility of self-


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determination? Is self-determination and the empowerment which it offers a rigid requirement in every

mediation? Does it make a difference whether the suspected incapacity is temporary – i.e. a party is

intoxicated – so the mediation could be rescheduled?

Example 1: The husband, who is a doctor, is also an alcoholic. The mediator notes,

“She could have said anything and he would have said yes. He just wanted to get it over with.

It was really hard keeping him here. I had to make two pots of coffee during each session to

keep him going. He was just ready to get out and go get a drink or something.” The wife is

represented, but he is not represented. Both parties are concerned about preserving his assets,

and they both agree that she should get a large portion of the assets. There seems to be

danger that the assets will disappear because of his alcoholism. The mediator is concerned

that the husband is agreeing too readily and is worried about the balance of power. The party is

not presently incapacitated -except to the extent that his desire to complete the mediation is

interfering with his giving careful thought to the process. It may be that the level of self-

determination which he is exhibiting is the highest level that is possible for him. Should this

person be deprived of the benefits which he might derive from mediation because he is not able

to bargain as effectively as the other party?

Example 2: During the mediation it becomes apparent to the mediator that one party is

well-represented and the other party is not being adequately represented. What, if anything,

should the mediator do? If the mediator interferes in the attorney-client relationship a number of

issues are raised. Would interference infringe upon the self-determination of the party who has

retained the attorney? Is neutrality compromised? Is the mediator crossing a line and in effect

giving legal advice? If the mediator is compensated, will the mediator’s action or inaction be

influenced by the desire to maintain good relationships with attorneys for business reasons?


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Recommendation: Where a party is laboring under an incapacity which makes him or her

incapable of effective bargaining, the mediator should terminate the mediation. Mediation is not an

appropriate forum for the protection of the rights of a person who cannot bargain for him or herself.

If the incapacity is temporary – i.e. intoxication – the mediation should be rescheduled.

If there is a serious imbalance of power between parties, the mediator should consider

whether the presence of an attorney, family member, or friend would give the needed support.

An obvious example of a power imbalance occurs when there is a history of domestic

violence. Although the Commission has drawn up guidelines to assist court programs in identifying

those cases which are not appropriate for mediation, information about a history of domestic

violence may surface for the first time during the mediation. The questions the mediator faces are

whether to terminate the mediation and, if so, how to safely terminate it. Factors which should be

considered are whether there was more than one incident, when the incident or incidents occurred,

whether the information surfaces during a joint session or during caucus, whether the alleged victim

is intimidated. If the mediator has any concern that the safety of any person will be jeopardized by

continuing the mediation, the mediation should be terminated.

If one party is simply unable to bargain as effectively as another, it is probably inappropriate

to deny those parties the benefits of the mediation process because of that factor.

If the imbalance occurs because of disparity in the ability of the parties’ attorneys, the

principle of self-determination, in this case in relation to the selection of an attorney, again prevails.

One mediator expressed his view this way: “I am reluctant to withdraw where there is an

imbalance in power because I always try to look at the alternative. The alternative usually is that

person is going to be no better off in litigation. I understand that there’s a judge there that can look

after the parties, but still my practical experience in litigation teaches me that most parties are not

going to be much better off in litigation rather than mediation if lack of power is their problem.”

C. Parties cannot bargain effectively unless they have sufficient information. Informed consent

to an agreement implies that parties not only knowingly agree to every term of the agreement


50

but that they have had sufficient information to bargain effectively in reaching that agreement.

Self-determination of the parties in a mediation includes not only informed consent to any

agreement reached but participation in crafting the agreement as well.

Commentary: One mediator suggested that the parties who are operating without full

information be asked to reconvene with attorneys present. This mediator said, “I have been

more and more impressed with how effective a subsequent session can be with the attorneys

present and everyone having prepared for it.”

Example 1: One party says that there are assets which have been hidden and the other

party denies the existence of the assets. The mediator faces the question of whether to push

them forward on the facts that are established or give any credence to these alleged facts.

Recommendation: The question is resolved in favor of terminating or rescheduling the

mediation if there has not been sufficient discovery or the party claiming that assets have been hidden

feels that she or he cannot bargain effectively. The closer question comes if there is unsubstantiated

suspicion – i.e. “He must have made more than he reported on his income taxes in 1992, so where is it?”

Domestic relations mediators who work in court-annexed or court-referred programs may not

have the luxury of several sessions so that parties can be assigned “homework.” As long as the

information on assets and budgets is available, the actual preparation of lists of assets and liabilities and

the preparation of budgets may provide an important opportunity for collaborative work by the parties.

Example 2: In a divorce mediation the wife is clearly dependent on the lawyer, as she had been on her husband while they were married. The lawyer is not cooperative in the mediation. At each session the lawyer comes in with a totally new agenda and without promised information. The mediator finds that she is spending an inordinate amount of time dealing with the lawyer. The mediator offers to meet with the parties alone, but the lawyers will not allow that.


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Recommendation: The mediator may caucus with the lawyers alone and confront the lawyer

who is obstructing the mediation. The mediator may also raise questions in caucus with the lawyer

and the client which may alert the client to the need to control the lawyer. Beyond this, it is difficult to

resolve this situation without compromising the self-determination of the client or compromising

neutrality.

Commentary: Yet another variation on the issue of missing information is the missing

issue – should the mediator bring up issues which the parties have not identified? As one

mediator expressed this: “What’s our role when people say we want you to mediate this case?

Are we to mediate the issues that they bring to us or are we to create issues for them to discuss

and decide about? I guess that a lot of the conflict that we’re talking about here is what do we

as mediators have to initiate or inform people or educate people about: all the issues that can

be and probably ought to be discussed in the context of a divorce mediation? You’re potentially

opening up all these cans of worms for people who don’t necessarily want them opened.” On

the other hand, have the parties had an opportunity to mediate from a position of full information

if they have not considered every relevant issue? Beyond this, will the agreement hold up if it is

not made in the context of all issues in the dispute?

D. The mediator must guard against any coercion of parties in obtaining a settlement.

Commentary: Many mediators discussed the question of when to declare impasse.

One mediator said that she loved the point of impasse because the parties have “gone through

the conflict” to get to impasse. She felt that the moment of impasse is a moment of great


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opportunity. At some point, however, persistence becomes coercion. The question of when to

terminate the mediation will be discussed further under the topic of fairness.

E. It is improper for lawyer/mediator, therapist/mediator, or mediator who has any professional

expertise in another area to offer professional advice to a party. If the mediator feels that a

party is acting without sufficient information, the mediator should raise the possibility of the

party’s consulting an expert to supply that information.

Commentary: Conversations with Georgia mediators who are trained as lawyers confirmed that

this concept is extremely difficult for lawyer/mediators. Lawyers, having been trained to protect others,

agonize over the perception that missing information, poor representation, ignorance of a defense, etc.

may place a party in danger.

Recommendation: The line between information and advice can be very difficult to find.

However, failure to honor the maxim that a mediator never offers professional advice can lead to an

invasion of the parties’ right to self-determination and a real or perceived breach of neutrality.

II. CONFIDENTIALITY.

Confidentiality is the attribute of the mediation process which promotes candor and full

disclosure. Without the protection of confidentiality, parties would be unwilling to communicate freely,

and the discussion necessary to resolve disputes would be seriously curtailed. Statements made during

the conference and documents and other material, including a mediator’s notes, generated in

connection with the conference are not subject to disclosure or discovery and may not be used in a

subsequent administrative or judicial proceeding. A written and executed agreement or memorandum


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of agreement resulting from a court-annexed or court-referred ADR process is discoverable unless the

parties agree otherwise in writing. Any exceptions to the promise of confidentiality such as a statutory

duty to report certain information must be revealed to the parties in the opening statement.

Information given to a mediator in confidence by one party must never be revealed to another party

absent permission of the first party.

Example 1: A party reveals to the mediator in caucus that he has cancer and that he

does not want his ex-wife to know about it. He is not sure how long he will be working because

of his illness. This information could be very important to the wife. She may need to make

other plans for the time when that money is not coming in. Because of the confidentiality, the

mediator feels that she cannot say anything.

Recommendation: This presents the classic dilemma of the collision between the promise of

confidentiality and the need of the parties for complete information if they’re to enter into an

agreement voluntarily. The mediator is placed in the position of keeping a confidence of one party at

the expense of the self-determination of the other party. If the mediation is terminated, there is no

guarantee that the husband’s condition would be revealed at trial, and the parties may lose the

opportunity for a more creative agreement than the verdict imposed after a return to court.

The first tactic of the mediator is to encourage the person keeping the crucial secret to share it

with the other party or allow the mediator to reveal the secret. If the secret is central to the creation

of a solid agreement, and if the mediator cannot persuade the party with the crucial secret to share it,

she may have no alternative but to terminate the mediation.

One mediator discussed the problem of information which, if made part of an agreement,

might constitute a fraud upon the court. He felt that the ethical requirement that a lawyer is always


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an officer of the court would require that the lawyer/mediator not draft an agreement if there were a

secret which made the agreement a fraud on the parties or on the court. “In other words, if one party

says as soon as we sign this custody agreement I’m going to take my kids across the country, that

would put me in an impossible conflict of interest. I would feel that I would be perpetrating a fraud on

the other side if I allowed them to enter into an agreement.”

Example 2: A deceptively simple example of this problem can occur in jurisdictions

where a “warrant fee” must be paid even if the warrant is not served or is dropped. As the

parties enter into the mediation of this sub-issue after the mediation of the dispute which

resulted in the warrant is completed, both parties refuse to pay a penny, saying that it is the

responsibility of the other party. In caucus, one party says, “I’ll pay half of it but don’t tell them

that.” Or someone will say, “I think I should only have to pay half of it, but I’d pay it all to be

finished with this, but don’t tell them.” The mediator has been given a piece of information that

would make a difference in the settlement of perhaps the entire case and instructed not to tell.

Recommendation: When the secret information is something that would foster settlement

rather than something that would prevent settlement, the mediator is remiss if he or she does not

push the parties toward revelation.

Commentary: An interesting problem intersecting self-determination and confidentiality

occurs because of the increasing use of guardians ad litem to represent the interest of the child

in disputed custody cases. If the guardian is present at the mediation, should he or she be privy

to the entire mediation, including caucuses? The interests of the child are not necessarily

synonymous with the positions of parties. One solution to the issue would be to caucus

separately with each party and with the guardian. Another question is whether the guardian,


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who has an obligation to report to the court, can be bound by confidentiality.

Recommendation: The mediator’s opening statement should include an explanation that the

guardian ad litem is a party to the mediation whose interests may be separate from those of the other

parties. Parties should be informed of the limits on confidentiality presented by the guardian ad

litem’s presence in the joint session. The mediator should caucus with the guardian ad litem

separately. The guardian ad litem should not be present when the mediator conducts a caucus with a

party.

III. IMPARTIALITY.

A. A mediator must demonstrate impartiality in word and deed. A mediator must scrupulously

avoid any appearance of partiality. Impartiality means freedom from favoritism, bias or

prejudice.

Example 1: As one mediator expressed this problem: “I had a big case once upon a

time where I thought the plaintiffs, who were represented by three attorneys, had made a very

poor presentation of their case and this was a case that went on for multiple sessions. I don’t

remember whether it was the opening presentation. I think it may not have been the opening

presentation, but a subsequent presentation, and it may have been on just a few issues or

something like that. I felt like they did not present their case in as strong a form as they could

have. Maybe that they were holding back some evidence. In caucus I just did some coaching.

I don’t mean to be so presumptuous as to say that I knew how to do it better than they did but I

pointed out some things to them that I think they agreed with. They went back and made a

more forceful, more cogent presentation and I think were able to move things along better.

Because by making a weak presentation of their case, they were not going to be able to get

what they knew or believed they were entitled to. So it was a matter of helping the other side

see the strengths of the plaintiff’s case that they had not been able to see through the original


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presentation.”

Recommendation: Several mediators discussed the problem of dealing with a party who is

unable to bargain effectively and puzzled over an ethical way to coach that party while retaining

neutrality. Helping a party to present his or her needs and interests in a way that can be heard by the

other side is not a breach of neutrality but is, rather, an important part of the mediator’s role. When

the mediator helps each side to communicate effectively, the mediator is assisting the parties in

establishing the common ground upon which a solid agreement can be based.

Commentary: Mediators give very few examples of situations in which they felt such

antipathy for a party that they were unable to remain neutral. Many mediators discussed the

fact that when they began to search for needs and interests of a party they were able to reach a

sufficient level of understanding that neutrality was not an issue.

Although the classic dilemma regarding impartiality occurs when the mediator feels great

sympathy or antipathy toward one party or another, the problem is more complicated when the

loss of impartiality occurs because of behavior of someone other than a party.

Example 1: During a mediation the attorneys begin to fight with each other to the extent that it is difficult to control the mediation. It is also difficult for the mediator to keep an open mind about how to deal with it because, as he expressed his own emotion, his stomach is churning. The mediator is faced not only with controlling the situation but in dealing with his own reaction to it. The mediation did not result in an agreement although the matter was settled before trial. The mediator wondered in hindsight if it might have been better if he had said “Look, because of the way I’m reacting to your fight, I can’t be an effective mediator for you. You need a different personality to help you mediate.”


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B. A mediator may not accept anything of value from a party or attorney for a party before, during, or

after the mediation, other than the compensation agreed upon. Mediators should be sensitive to the

fact that future business dealings with parties may give the appearance of impropriety. However, it is

not improper for a mediator to receive referrals from parties or attorneys.

C. CONFLICTS OF INTEREST / BIAS

a. A mediator shall avoid a conflict of interest or the appearance of a conflict of interest during and after a mediation. A conflict of interest can arise from involvement by a mediator with the subject matter of the dispute or from any relationship between a mediator and any mediation participant, whether past or present, personal or professional, that reasonably raises a question of a mediator’s impartiality. Mediators should avoid any dual relationship with a party which would cause any question about the mediator’s impartiality.

b. A mediator shall make a reasonable inquiry to determine whether there are any facts that a reasonable individual would consider likely to create a potential or actual conflict of interest for a mediator. A mediator’s actions necessary to accomplish a reasonable inquiry into potential conflicts of interest may vary based on practice context.

c. A mediator shall disclose, as soon as practicable, all actual and potential conflicts of interest that are reasonably known to the mediator and could reasonably be seen as raising a question about the mediator’s impartiality. After disclosure, if all parties agree, the mediator may proceed with the mediation.

d. If a mediator learns of any fact after accepting a mediation that raises a question with respect to that mediator’s service creating a potential or actual conflict of interest, the mediator shall disclose it as quickly as practicable. After disclosure, if all parties agree, the mediator may proceed with the mediation.

e. If a mediator’s conflict of interest might reasonably be viewed as undermining the integrity of the mediation, a mediator shall withdraw from or decline to proceed with the mediation regardless of the expressed desire or agreement of the parties to the contrary.

f. Subsequent to a mediation, a mediator shall not establish another relationship with any of the participants in any matter that would raise questions about the integrity of the mediation. When a mediator develops personal or professional relationships with parties, other individuals or organizations following a mediation in which they were involved, the mediator should consider factors such as time elapsed following the


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mediation, the nature of the relationships established, and services offered when determining whether the relationships might create a perceived or actual conflict of interest.

Commentary: How a mediator conducts a conflicts check varies by practice context. For a

complex case that comes to a mediator through his or her law firm, best practice consists of

making a firm-wide conflicts check at the pre-mediation phase. By contrast, for a mediator of a

matter outside the mediator or firm’s areas of practice, making an inquiry of the parties and

participants at the time of the mediation regarding potential conflicts of interest may be

sufficient.

In performing the mediator’s role, an individual displays multiple analytical and interpersonal

skills which may well lead a mediation participant to consider employing the mediator again. If a

mediation participant, be it a party, party representative, witness or any other participant, wishes

to employ the mediator in a subsequent mediation, or in another role (such as personal lawyer,

therapist, or consultant), then the mediator must make certain that entering into such a new

relationship does not cast doubt on the integrity of the mediation process.

Example 1: A divorce mediation results in a full agreement. The parties do not want to

take the agreement and spend the extra money on an attorney. And they ask the mediator to

take the agreement to court and help them obtain an uncontested divorce. As the mediator

described the problem, “I told them that technically I could but no I won’t because I’ve been your

mediator and must be neutral. I think it would be a conflict for me to go from mediator to


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attorney in the same case for the purpose of getting you your divorce and making it legal. They

said that they really didn’t want to go pay anybody else and asked me to prepare the papers.

So I charged them an additional fee to prepare the papers, the decree and separation

agreement, without my name on it and I told them to file it pro se. They were satisfied with that

and I could sleep with that decision.”

Recommendation: The ethical problems that arise in the area of subsequent contact with

parties have to do with neutrality and the perception that the mediator might capitalize upon the

mediation experience to create a future business relationship with one or the other party. Here the

mediator did legal work for both parties so that there was no question of a breach of neutrality. There

was no question that the dual representation was clearly explained and understood by the parties.

Further, the mediator tried to distance himself by refusing to represent the parties in court, acting

more as a scribe than a representative. He acted with great reluctance and only because the parties

requested that they not be placed in a position of incurring additional expense. This mediator said

that specific rules in this area would be helpful. It is the Commission’s recommendation that a

lawyer/mediator never accept any legal work arising out of the mediation. In the context of the

example above, this recommendation is more for the protection of the mediator than for the parties.

IV. FAIRNESS.

The mediator is the guardian of fairness of the process. In that context, the mediator must

assure that the conference is characterized by overall fairness and must protect the integrity of the

process.

A. A mediator should not be a party to an agreement which is illegal or impossible to execute.

The mediator should alert parties to the effect of the agreement upon third parties who are not


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part of the mediation. The mediator should alert the parties to the problems which may arise if

the effectiveness of the agreement depends upon the commitment of persons who are not

parties to the agreement. A mediator may refuse to draft or sign an agreement which seems

fundamentally unfair to one party.

Commentary: Georgia mediators expressed two concerns related to the fairness of a mediated

agreement: How to handle the situation in which the parties agree to something which the mediator

feels is unworkable; how to separate out the mediator’s own bias that a party could have done better

from the agreement which seems fundamentally unfair to the party.

Example 1: As one mediator expressed the tension, “You know, have you done this or that? Why don’t we come back? ‘No, I just want to get it over with.’ God, you’re paying such a price just to get it over with. But then, maybe they just really need to get it over with. I don’t know how many times I’ve heard that, that I just want to get it over with. I don’t care what it takes, I want it done, nobody’s going to abide by this anyway. Whatever that whole bundle of things may be. That’s my bugaboo. I don’t know what advice to give other people about it. You can create some type of abstract standard [for mediators to handle this situation.]”

Example 2: In a juvenile court case the parties are working toward agreement and the mediator realizes that the child is agreeing to anything in order to get out of the room. The mediator also realizes that if the agreement is breached, the child will have to answer for the breach in court. The mediator’s reality testing is to no avail.

Example 3: The mediator is concerned about the tax consequences of a property transfer, and the parties are unwilling to consult an outside expert. As one mediator set forth the problem: “So they come in with a house to sell or a business as part of their marital assets and you’re talking about transferring all this property and then what about the taxes. Have you thought about the tax implications? They say no, and you say well you ought to go see a CPA and get this information. And they don’t want to because they don’t want to spend any more money and all of a sudden you’re taking what appeared to be a simple situation and you’re making it more complex and you’re making it more expensive and where does it stop. That’s our question.”

Example 4: The parties have been married twenty-two years and have grown children. They come to mediation having settled everything but who is to get the Volvo, which is for them their most prestigious material possession. The husband suggests the solution of just selling the car, a solution


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which would make it possible to finalize the divorce. The wife, who is not ready for finality begins to cry hysterically and then says, “Just write it up and I’ll sign anything.”

Recommendation: The mediator’s tension may result from his or her concern that the

agreement is not the best possible agreement. On the other end of the continuum, the mediator feels

that the agreement is unconscionable. This is an area in which the mediator’s sense of fairness may

collide with the fundamental principle of self-determination of the parties. On the other end of the

continuum, the mediator may feel that the agreement is unfair in that one party is not fully informed.

In other words, the process by which agreement was reached was unfair because one party was not

bargaining from a position of knowledge. An underlying question is whose yardstick should be used in

measuring fairness.

The mediator has an obligation to test the parties’ understanding of the agreement by making

sure that they understand all that it involves and the ramifications of the agreement. The mediator

has an obligation to make sure that the parties have considered the effect of the agreement upon

third parties. If after testing the agreement the mediator is convinced that the agreement is so unfair

that he or she cannot participate, the mediator should withdraw without drafting the agreement.

Parties should be informed that they are, of course, free to enter into any agreement that they wish

notwithstanding the withdrawal of the mediator.

B. A mediator is the guardian of the integrity of the mediation process.

Commentary: Georgia mediators expressed concern about confusion of parties and neutrals as

to the difference between various ADR processes. This confusion may result in the parties’ not knowing

what to expect of the mediation process. While there is room for variation in mediation style from the

more directive to the more therapeutic, the mediator should recognize the line between mediation and a


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more evaluative process and be prepared to refer the party to another process if that would be more

appropriate.

Another concern mentioned by many Georgia mediators was how to recognize impasse and,

perhaps more difficult, how to recognize when parties come to the table unwilling to bargain in good

faith. Another variation on this theme is the attorney who has come to the table merely intending to

benefit from free discovery or use mediation as a dilatory tactic. Yet another variation on this theme was

the expectation of lawyers that the mediation could be completed in one session. These problems are

experienced differently whether the mediator is being compensated on an hourly basis, per session, or is

a volunteer. Many mediators and program directors struggle with the issue of good faith and the

question of whether lack of good faith can ever be reported to the court.

Recommendation: When a mediator realizes that a party is not bargaining in good faith, he or

she often experiences an understandable frustration and a desire to report the bad faith to the court.

The pledge of confidentiality extends to the question of conduct in the mediation, excepting of course

threatened or actual violence. The possible damage to the process by reporting more than offsets the

benefit in a given case. Further, if the lodestar of mediation is the principle of self-determination, the

unwillingness of a party to bargain in good faith is consistent with that party’s right to refuse the

benefits of mediation.

V. RULES OF FAIR PRACTICE.

REFERRALS

Mediators should observe the same care to be impartial in their business dealings that they

observe in the mediation session. In this regard, mediators should not refer parties to any entity in

which they have any economic interest. As a corollary to this principle, mediators should avoid referrals

to professionals from whom the mediator expects to receive future business. Similarly, mediators


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should avoid an ongoing referral relationship with an attorney that would interfere with that attorney’s

independent judgment.

It is not improper to receive referrals from attorneys or parties. However, mediators should be

aware that their impartiality or appearance of impartiality may be compromised by referrals from

parties or attorneys for whom they act as mediators on more than one occasion.

FEES

Mediators who are compensated by parties must be scrupulous in disclosing all fees and costs at

the earliest opportunity. Fees may be based on an hourly rate, a sliding scale, or a set fee for an entire

mediation as long as the fee structure has been carefully explained to the parties and they have

consented to the arrangement.

Fees may never be contingent upon a specific result. It is imperative that the mediator have no

“stake” in the outcome.

Mediators who serve for compensation in court programs are obligated to provide some pro

bono hours in order to serve parties who are indigent.

COMPETENCE

Mediators are obligated to disclose their training and background to parties who request such

information. Mediators are obligated not to undertake cases for which their training or expertise is

inadequate. Mediators shall meet the competency standards of Appendix B. § 1.

Mediators who serve in court programs or receive referrals from courts must be registered with

the Georgia Office of Dispute Resolution and must be in compliance with the Alternative Dispute

Resolution Rules of the Supreme Court of Georgia. Any mediator who receives a court referral without


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being in compliance with the Supreme Court Rules is subject to being removed from the registry of the

Georgia Office of Dispute Resolution. Further, the immunity protection of the Supreme Court Rules is

not available to mediators who receive court referrals without being in compliance with said rules.

ADVERTISING

Mediators are permitted to advertise. Mediators have an obligation to the integrity of the

mediation process. In that regard, all statements as to qualifications must be truthful. Mediators may

never claim that they will guarantee a specific result. It is important to the public perception of

mediation that advertisements by mediators are not only accurate, clear, and truthful, but that they are

in no way misleading.

DILIGENCE

Mediators will exercise diligence in scheduling the mediation, drafting the agreement if

requested to do so, and returning completed necessary paperwork to the court or referring agency.

Mediation may be terminated by either the mediator or the parties at any time. Mediators will

be sensitive to the need to terminate the mediation if an impasse has been reached. However,

mediators must be courageous in declaring impasse only when there is no possibility of progress.

© Copyright ADR & Model Rules, Appendix C, Chapter 1, 6-18-2013


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APPENDIX E11

OFFICIAL CODE OF GEORGIA ANNOTATED

Copyright 2018 by The State of Georgia

All rights reserved.

*** Current Through the 2018 Regular Session ***

TITLE 34. LABOR AND INDUSTRIAL RELATIONS

CHAPTER 9. WORKERS' COMPENSATION

ARTICLE 1. GENERAL PROVISIONS

O.C.G.A. § 34-9-15 (2018)

§ 34-9-15. Procedure for settlement between parties generally; approval by board; finality of settlement; lump sum settlements

(a) Nothing contained in this chapter shall be construed so as to prevent settlements made by and between the employee and employer but rather to encourage them, so long as the amount of compensation and the time and manner of payment are in accordance with this chapter. A workers' compensation insurer shall not be authorized to settle a claim on behalf of its insured employer without giving prior notice to such employer of the terms of the settlement agreement. A copy of any such settlement agreement shall be filed by the employer with the board, and no such settlement shall be binding until approved by the board. Whenever it shall appear to the board, by stipulation of the parties or otherwise, that there is a bona fide dispute as to facts, the determination of which will materially affect the right of the employee or dependent to recover compensation or the amount of compensation to be recovered, or that there is a genuine dispute as to the applicability of this chapter, and it further appears that the parties have agreed upon a settlement between themselves, which settlement gives due regard and weight to the conflicting evidence available relating to the disputed facts or to the questions as to the applicability of this chapter, then, upon such determination, the board shall approve the settlement and enter an award conforming to the terms thereof even though such settlement may provide for the payment of compensation in a sum or sums less than would be payable if there were no conflict as to the employee's right to recover compensation. When such settlement has been agreed upon and approved by the board, it shall constitute a complete and final disposition of all claims on account of the incident, injury, or injuries referred to therein, and the board shall not be authorized to enter upon any award subsequent to such board approval amending, modifying, or changing in any manner the settlement, nor shall the settlement be subject to review by the board under Code Section 34-9-104.

11 Note: The Annotations to these selected provisions of the Georgia Workers’ Compensation Act have been omitted for the purpose of brevity, but are invaluable for a complete understanding of these selected (and all other) provisions of the Georgia Workers’ Compensation Act.


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(b) The board shall be authorized to approve a stipulated settlement between the parties which concludes that there is no liability under this chapter and to retain jurisdiction to enforce any agreement which resolves, in whole or in part, a claim filed with the board. If payments required under such an agreement are not made within 20 days, the board may assess a penalty of 20 percent in the same manner as provided in Code Section 34-9-221. When such settlement has been agreed upon and approved by the board, it shall constitute a complete and final disposition of all claims on account of the incident, injury, or injuries referred to therein, and the board shall not be authorized to enter upon any award subsequent to such board approval amending, modifying, or changing in any manner the settlement, nor shall the settlement be subject to review by the board under Code Section 34-9-104.

(c) The board or any party to the settlement agreement may require that the settlement documents contain language which prorates the lump sum settlement over the life expectancy of the injured worker. When such an agreement has been approved, neither the weekly compensation rate paid throughout the case nor the maximum statutory weekly rate applicable to the injury shall apply. No compensation rate shall exceed the maximum statutory weekly rate as of the date of injury. Instead, the prorated rate set forth in the approved settlement documents shall control and become the rate for that case. This subsection shall be retroactive in effect.


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ARTICLE 3. PROCEDURE

PART 2. HEARING AND APPEALS

O.C.G.A. § 34-9-100 (2018)

§ 34-9-100. Filing of claims with board; investigation or mediation; hearing; dismissal of stale claims

(a) Subject to Code Section 34-9-82, a claim for compensation may be filed with the board at any time following an injury or death. The board and its administrative law judges shall have full authority to hear and determine all questions with respect to such claims.

(b) The board shall make or cause to be made any investigation or mediation it considers necessary and, upon its own motion or application of any interested party, order a hearing thereon and assign the claim to an administrative law judge for review. Furthermore, the board may direct the parties to participate in mediation conducted under the supervision and guidance of the board.

(c) Any application for hearing filed with the board pursuant to this Code section, on or after July 1, 1985, but prior to July 1, 2007, for which no hearing is conducted for a period of five years shall automatically stand dismissed.

(d) (1) For injuries occurring on or after July 1, 2007, any claim filed with the board for which neither medical nor income benefits have been paid shall stand dismissed with prejudice by operation of law if no hearing has been held within five years of the alleged date of injury.

(2) This subsection shall not apply to a claim for an occupational disease as defined in Code Section 34-9-280.

(3) The form provided by the board for use in filing a workers' compensation claim shall include notice of the provisions of this subsection.

(e) Any claim, notice, or appeal required by this chapter to be filed with the board shall be deemed filed on the earlier of:

(1) The date such claim or notice is actually received by the board; or


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(2) The official postmark date such claim or notice was mailed to the board, properly addressed with postage prepaid, by registered or certified mail or statutory overnight delivery.


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ARTICLE 6. PAYMENT OF COMPENSATION

PART 1. MEDICAL ATTENTION

O.C.G.A. § 34-9-200 (2018) § 34-9-200. Compensation for medical care, artificial members, and other treatment and supplies; effect of employee's refusal of treatment; employer's liability for temporary care

(a)

(1) For all injuries occurring on or before June 30, 2013, and for injuries occurring on or after July 1, 2013, designated as catastrophic injuries pursuant to subsection (g) of Code Section 34-9-200.1, the employer shall furnish the employee entitled to benefits under this chapter such medical, surgical, and hospital care and other treatment, items, and services which are prescribed by a licensed physician, including medical and surgical supplies, artificial members, and prosthetic devices and aids damaged or destroyed in a compensable accident, which in the judgment of the State Board of Workers' Compensation shall be reasonably required and appear likely to effect a cure, give relief, or restore the employee to suitable employment.

(2) For all injuries occurring on or after July 1, 2013, that are not designated as catastrophic injuries pursuant to subsection (g) of Code Section 34-9-200.1, the employer shall, for a maximum period of 400 weeks from the date of injury, furnish the employee entitled to benefits under this chapter such medical, surgical, and hospital care and other treatment, items, and services which are prescribed by a licensed physician, including medical and surgical supplies, artificial members, and prosthetic devices and aids damaged or destroyed in a compensable accident, which in the judgment of the State Board of Workers' Compensation shall be reasonably required and appear likely to effect a cure, give relief, or restore the employee to suitable employment.

(b) Upon the request of an employee or an employer, or upon its own motion, the board may in its judgment, after notice is given in writing of the request to all interested parties and allowing any interested party 15 days from the date of said notice to file in writing its objections to the request, order a change of physician or treatment and designate other treatment or another physician; and, in such case, the expenses shall be borne by the employer upon the same terms and conditions as provided in subsection (a) of this Code section.

(c) As long as an employee is receiving compensation, he or she shall submit himself or herself to examination by the authorized treating physician at reasonable times. If the employee refuses


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to submit himself or herself to or in any way obstructs such an examination requested by and provided for by the employer, upon order of the board his or her right to compensation shall be suspended until such refusal or objection ceases and no compensation shall at any time be payable for the period of suspension unless in the opinion of the board the circumstances justify the refusal or obstruction.

(d) If an emergency arises and the employer fails to provide the medical or other care as specified in this Code section, or if other compelling reasons force the employee to seek temporary care, the employee is authorized to seek such temporary care as may be necessary. The employer shall pay the reasonable costs of the temporary care if ordered by the board.


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O.C.G.A. § 34-9-201 (2018)

§ 34-9-201. Selection of physician from panel of physicians; change of physician or treatment; liability of employer for failure to maintain panel

(a) As used in this Code section, the term "physician" shall include any person licensed to practice a healing art and any remedial treatment and care in the State of Georgia.

(b) The employer may satisfy the requirements for furnishing medical care under Code Section 34-9-200 in one of the following manners:

(1) The employer shall maintain a list of at least six physicians or professional associations or corporations of physicians who are reasonably accessible to the employees; provided, however, that the board may grant exceptions to the required size of the panel where it is demonstrated that more than four physicians or groups of physicians are not reasonably accessible. This list shall be known as the "Panel of Physicians." At least one of the physicians shall practice the specialty of orthopedic surgery. Not more than two industrial clinics shall be included on the panel. An employee may accept the services of a physician selected by the employer from the panel or may select another physician from the panel. The physicians selected under this subsection from the panel may arrange for any consultation, referral, and extraordinary or other specialized medical services as the nature of the injury shall require without prior authorization from the board; provided, however, that any medical practitioner providing services as arranged by a primary authorized treating physician under this subsection shall not be permitted to arrange for any additional referrals. The employee may make one change from one physician to another on the same panel without prior authorization of the board; or

(2) A self-insured employer or the workers' compensation insurer of an employer may contract with a managed care organization certified pursuant to Code Section 34-9-208 for medical services required by this chapter to be provided to injured employees. Medical services provided under this paragraph shall be known as "Managed Care Organization Procedures." Those employees who are subject to the contract shall receive medical services


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in the manner prescribed in the contract. Each such contract shall comply with the certification standards provided in Code Section 34-9-208. Self-insured employers or workers' compensation insurers who contract with a managed care organization for medical services shall give notice to the employees of the eligible medical service providers and such other information regarding the contract and manner of receiving medical services as the board may prescribe.

(c) Consistent with the method elected under subsection (b) of this Code section, the employer shall post the Panel of Physicians or Managed Care Organization Procedures in prominent places upon the business premises and otherwise take all reasonable measures to ensure that employees:

(1) Understand the function of the panel or managed care organization procedures and the employee's right to select a physician therefrom in case of injury; and

(2) Are given appropriate assistance in contacting panel or managed care organization members when necessary.

(d) Notwithstanding the other provisions contained in this Code section, if an inability to make a selection of a physician as prescribed in this Code section is the result of an emergency or similarly justifiable reason, the selection requirements of this Code section shall not apply as long as such inability persists.

(e) Upon the request of an employee or an employer, or upon its own motion, the board may order a change of physician or treatment as provided under Code Section 34-9-200.

(f) If the employer fails to provide any of the procedures for selection of physicians as set forth in subsection (c) of this Code section, an employee may select any physician to render service at the expense of the employer.

(g) The board shall promulgate rules and regulations to ensure, whenever feasible, the participation of minority physicians on panels of physicians maintained by employers or in managed care organizations pursuant to this Code section.


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O.C.G.A. § 34-9-202 (2018) § 34-9-202. Examination of injured employee; request for autopsy; examination by physician designated by employee

(a) After an injury and as long as he claims compensation, the employee, if so requested by his or her employer, shall submit himself or herself to examination, at reasonable times and places, by a duly qualified physician or surgeon designated and paid by the employer or the board. Such examination may include physical, psychiatric, and psychological examinations.

(b) The employee shall have the right to have present at such examination any duly qualified physician or surgeon provided and paid by him. No fact communicated to or otherwise learned by any physician or surgeon who may have attended or examined the employee or who may have been present at any examination shall be privileged either in hearings provided for by this chapter or in any action at law brought to recover damages against any employer who may have accepted the compensation provisions of this chapter.

(c) If the employee refuses to submit himself to or in any way obstructs such examination requested by and provided for by the employer, his right to compensation and his right to take or prosecute any proceedings under this chapter shall be suspended until such refusal or objection ceases; and no compensation shall at any time be payable for the period of suspension unless in the opinion of the board the circumstances justify the refusal or obstruction.

(d) The employer or the board shall have the right in any case of death to require an autopsy at the expense of the party requesting the same.

(e) Notwithstanding the rights afforded an employee under Code Section 34-9-201, the employee, after an accepted compensable injury and within 120 days of receipt of any income benefits, shall have the right to one examination at a reasonable time and place, within this state or within 50 miles of the employee's residence, by a duly qualified physician or surgeon designated by the employee and to be paid for by the employer. Such examination, of which the employer or insurer shall be notified in writing in advance, shall not repeat any diagnostic procedures which have been performed since the date of the employee's injury unless the costs of such diagnostic procedures which are in excess of $250.00 are paid


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for by a party other than the employer or the insurer. Such examination may include physical, psychiatric, and psychological examinations.


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O.C.G.A. § 34-9-206 (2018)

§ 34-9-206. Reimbursement for costs of medical treatment

(a) Any party to a claim under this chapter, a group insurance company, or other health care provider who covers the costs of medical treatment for a person who subsequently files a claim under this chapter may give notice in writing to the board at any time during the pendency of the claim that such provider is or should be a party at interest as a result of payments made in the employee's behalf for medical treatment.

(b) In cases where a group insurance company or other health care provider covers the costs of medical treatment for a person who subsequently files a claim and is entitled to benefits under this chapter, the board shall be authorized to order the employer or workers' compensation insurance carrier to repay the group insurance company or other health care provider the funds it has expended for the claimant's medical treatment, provided that such employer or its workers' compensation insurance carrier is liable under this chapter for such medical treatment and provided, further, that such other provider has become or should be a party at interest pursuant to the provisions of subsection (a) of this Code section. The employer or its workers' compensation insurance carrier deemed liable for such medical treatment shall not be obligated to pay such sums directly to the employee unless, and only to the extent that, it is proven that the employee has paid for such medical treatment himself.


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PART 3. LIMITATIONS ON PAYMENT

O.C.G.A. § 34-9-240 (2018)

§ 34-9-240. Effect of refusal of suitable employment by injured employee; attempting or refusing to attempt work with restrictions

(a) If an injured employee refuses employment procured for him or her and suitable to his or her capacity, such employee shall not be entitled to any compensation, except benefits pursuant to Code Section 34-9-263, at any time during the continuance of such refusal unless in the opinion of the board such refusal was justified.

(b) Notwithstanding the provisions of subsection (a) of this Code section, if the authorized treating physician releases an employee to return to work with restrictions and the employer tenders a suitable job to such employee within those restrictions, then:

(1) If such employee attempts the proffered job for eight cumulative hours or one scheduled workday, whichever is greater, but is unable to perform the job for more than 15 working days, then weekly benefits shall be immediately reinstated, and the burden shall be upon the employer to prove that such employee is not entitled to continuing benefits; or

(2) If such employee attempts the proffered job for less than eight cumulative hours or one scheduled workday, whichever is greater, or refuses to attempt the proffered job, then the employer may unilaterally suspend benefits upon filing with the board the appropriate form with supporting documentation of the release to return to work with restrictions by the authorized treating physician, the tender of a suitable job within those restrictions, and a statement that such employee did not attempt the proffered job. Under those circumstances, the burden shall shift to the employee to prove continuing entitlement to benefits.


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PART 3. LIMITATIONS ON PAYMENT

O.C.G.A. § 34-9-244 (2018)

§ 34-9-244. Reimbursement of provider of disability benefits to person who subsequently files claim

(a) Any party to a claim under this chapter, a group insurance company, or other disability benefits provider who provides disability benefits for a person who subsequently files a claim under this chapter may give notice in writing to the board at any time during the pendency of the claim that such provider is or should be a party at interest as a result of such disability benefits paid to the employer.

(b) In cases where a group insurance company or other disability benefits provider pays disability benefits to a person pursuant to an employer paid plan who subsequently files a claim and is entitled to benefits under this chapter, the board shall be authorized to order the employer or its workers' compensation insurance carrier to repay the group insurance company or other disability benefits provider the funds it has expended for such disability benefits and take credit for that amount against income benefits due under this chapter, provided that:

(1) Such employer or its workers' compensation insurance carrier is liable under this chapter for income benefits;

(2) Such other provider has become or should be a party at interest pursuant to the provisions of subsection (a) of this Code section; and

(3) The disability benefits paid are pursuant to a plan funded in whole or in part by the employer or workers' compensation carrier.


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APPENDIX F12






APPENDIX: RULES AND REGULATIONS OF THE STATE BOARD OF WORKERS' COMPENSATION

O.C.G.A. Title 34 Appx. Bd. Work. Comp. r. 15 (2018)

§ 15. Stipulated Settlements

(a) The party submitting the stipulation shall:

(1) file the original with a copy for each party to the agreement; if filing electronically, file one original and no copies.

(2) at the top page of each stipulation list the names, addresses, and telephone numbers of all parties to the agreement, the ICMS Board claim number(s) of the employee, the dates of accident covered by the agreement where a Board file has been created by a Form WC-1 or Form WC-14, the names and addresses of all attorneys with a designation of which parties they represent, and the Federal tax identification number of the employee's attorney. For dates of accident where a Board file has not been created but covered by the stipulation, such dates of accident shall only be listed in the body of the agreement. However, if you are only settling a "Medical Only" claim, you shall create a Board file by filing a WC-14 and/or WC-1 with Section C or D completed;

(3) if a WC-1 has not previously been filed with the Board, the Board may require the attachment of a copy of the Form WC-1 with Section B, C, or D completed for each date of accident included in the caption;

(4) if an attorney fee contract has not previously been filed with the Board, attach a copy of the fee contract of counsel for the employee/claimant; and,

(5) when submitting a stipulation for approval by electronic mail, the stipulation must be submitted separately from supporting documentation.

(6) approval of a stipulation may be sent by electronic mail to the parties and attorneys of record. Whenever electronic transmission is not available, approval will be sent by mail. 12 Note: The Annotations to these selected Rules of the Georgia Board of Workers’ Compensation have been omitted for the purpose of brevity, but are invaluable for a complete understanding of these selected (and all other) Rules of the Georgia Board of Workers’ Compensation.


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(7) for all stipulations, at the top of the first page of the stipulation, the first five inches shall be left blank for the approval stamp;

(8) All stipulations shall be limited to no more than 25 pages, unless prior approval is given by the Board or the Settlement Division.

(b) A stipulation which provides for liability of the employer or insurer shall:

(1) state the legal and/or factual matters about which the parties disagree;

(2) state that all incurred medical expenses which were reasonable and necessary have been or will be paid by the employer/insurer. If the parties have agreed for medical treatment to be provided for a specific period in the future, then the stipulation must so state, and must further specify whether the agreement is limited to certain specific providers, and whether those providers may refer to others if needed. Furthermore, the stipulation shall provide that the parties will petition the Board for a change of physician in the event that a specifically named physician is unable to render services, and the parties cannot agree. If the stipulation does not contain a provision that medical expenses may be incurred for a specific period in the future after the approval of the stipulation, then the stipulation must contain a statement which explains why that provision is not necessary; and,

(3) attach the most recent medical report or summary which describes the medical condition of the employee, including a very brief statement of the surgical history, if any, if that history is not already specified within the stipulation. The entire medical record should NOT be attached.

(c) The insurer shall certify that it has complied with O.C.G.A. § 34-9-15 by having sent a copy of the proposed settlement to the employer prior to any party having signed it.

(d) When the agreement provides for the employer/insurer to fund any portion of the settlement by purchase of an annuity or other structured settlement instrument, which provides for a third party to pay such portion of the settlement, then the stipulation must contain a provision that the employer and insurer will be liable for the payments in the event of the default or failure of the third party to pay. In addition, if the stipulated settlement agreement provides for a Medicare Set-Aside (MSA), the stipulated settlement agreement shall contain a provision as to the actual or projected cost of the MSA.

(e) Unless otherwise specified in the attorney fee contract filed with the Board and in the terms of the stipulation, the proceeds of the approved stipulated settlement agreement shall be sent directly to the employee or claimant. If an attorney is to be paid, the stipulation must state the amount of the fee, and itemize all expenses which should be reimbursed. Any expense, cost, surcharge, flat fee or averaged expenditure which is not reasonable and solely related to the case being settled shall not be approved by the Board. Further, an attorney shall not receive an attorney's fee as a portion or percentage of any medical treatment or expenses, or any money designated for medical treatment or expenses. Expenses and attorney fees shall be paid in a check payable to the attorney only, and proceeds due to the employee shall be paid in a check payable to the employee only and the attorney shall certify that the expenses comply with Rule 1.8(e) of the Georgia Rules of Professional Responsibility and Board Rule 108. No portion of any settlement payment shall be designated as medical except the amount specified in the approved stipulation.


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(f) In all no-liability settlements where the claimant is represented by counsel, the attorney must submit a Form WC-15 certifying that any fee charged is fair and reasonable and does not exceed twenty five percent as allowed under the provisions of O.C.G.A. § 34-9-108 and Board Rule 108.

(g) Stipulations which contain waivers or releases of causes of action over which the Board has no jurisdiction will not be approved by the Board.

(h) The Board may hear evidence or make confidential informal inquiry regarding any settlement.

(i) When filing a motion for reconsideration on the approval or denial of a settlement, the parties or attorneys shall: (1) immediately notify the Division Director of the Settlement Division or the Board by telephone call; (2) use the ICMS doc-type labeled motion for reconsideration; (3) limit their request to 10 pages, including briefs and exhibits, unless otherwise permitted by the Board; and (4) serve a copy on all counsel and unrepresented parties, along with supporting documents, including a separate certificate of service identifying the names and addresses served.

(j) In any stipulated settlement agreement where review by the Centers for Medicare and Medicaid Services (CMS) is available, the parties elect to pursue approval of the proposed Medicare Set Aside (MSA) by CMS, and the parties elect to submit the settlement agreement to the Board for approval prior to CMS approval, the parties shall acknowledge and agree that the State Board of Workers' Compensation shall retain jurisdiction of those medical issues covered by the MSA until such time as the medical portion of the claim is resolved in accordance with the Workers' Compensation Act.

(k) No party or any party's attorney shall enter into a loan or assignment with a third party creditor which requires repayment from the proceeds of a workers' compensation claim.

(l) The employee shall stipulate that there are no outstanding child support liens that would prohibit full disbursement of the settlement funds in this case.

(m) For settlements of $5000.00 or more, the Board or any party to the settlement agreement may require that the settlement documents contain language which prorates the lump sum settlement over the life expectancy of the injured worker.

(n) Settlements in compensable claims will not be approved unless all WC-206/WC-244 party at interest issues are resolved.

(o) In all no-liability settlements, the parties shall submit a statement specifying the party responsible for outstanding medical expenses.


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§ 100. Alternative Dispute Resolution (ADR) Division

(a) An Alternative Dispute Resolution Division is established to resolve disputes without the necessity of a hearing.

(b) Hearing requests or motions will be screened in order to identify cases likely to be resolved by Board order or the mediation process without a hearing.

(c) In addition, the ADR Division and each Administrative Law Judge shall have the authority to direct the parties to attend a mediation conference when deemed appropriate by the Board. The Board's authority to direct the parties to attend a mediation conference shall extend to include mediation of disputes which arise in cases designated as "Medical Only." Participation in a mediation conference shall not abridge the rights of the parties to a subsequent evidentiary hearing or ruling on the contested issues should the issues not be successfully resolved through mediation. An expedited hearing may be scheduled by agreement of the parties subsequent to the conference being held. An agreement reached at mediation will be reduced to writing and shall have the full effect of an award or order issued by the Board. A settlement agreement reached through the mediation process must be submitted and reviewed pursuant to O.C.G.A. § 34-9-15 and Board Rule 15.

(d) Parties requesting a Board mediation for the purpose of an all issues settlement must file a Form WC-100 certifying that all parties are in agreement with the request for a settlement mediation and that the employer/insurer has, or will have by the date of the first scheduled mediation conference, authority to resolve the claim based upon a good faith evaluation. The Form WC-100 must be served on all parties and parties at interest simultaneous with the board filing.

(e) Notices of Mediation will be sent by electronic mail and shall only be sent to attorneys of record. Whenever electronic transmission is not available, a Notice of Mediation will be sent by mail.

(f) Communications.

(f) (1) All communications or statements, oral or written, that take place within the context of a mediation conference are confidential and not subject to disclosure. Such communications or statements shall not be disclosed by any mediator, party, attorney, attendee, or Board employee and may not be used


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as evidence in any proceeding. An executed Board mediation sheet or written executed agreement resulting from a mediation is not subject to the confidentiality described above.

(2) Neither the mediator nor any 3rd party observer present with the permission of the parties may be subpoenaed or otherwise required to testify concerning a mediation or settlement negotiations in any proceeding. The mediator's notes shall not be placed in the Board's file, are not subject to discovery, and shall not be used as evidence in any proceeding.

(3) Confidentiality does not extend to:

(A) threats of violence to the mediator or others;

(B) security personnel or law enforcement officials;

(C) party or attorney misconduct;

(D) legal or disciplinary complaints brought against a mediator or attorney arising out of and in the course of a mediation;

(E) appearance;

(F) the list of physicians submitted to an Administrative Law Judge by the parties or attorneys when the parties have been ordered to submit the names of physicians in a change of physician dispute and the dispute is not resolved through mediation.

(g) Attendance.

(1) Each party to the dispute is required to have in attendance at the mediation conference a person or persons who have adequate authority to resolve all pending issues. The employee shall be in attendance at the mediation conference. The employer shall have in attendance at the mediation conference a representative of the employer/insurer who has authority to resolve all pending issues. The requirement of the presence of the employer/insurer's representative shall not be satisfied by the presence of legal counsel of the employer. In claims where the Subsequent Injury Trust Fund (SITF) is a party-at-interest to the claim, a representative of the SITF must either be in attendance at the mediation conference or have extended settlement authority to the representative of the employer/insurer no later than two business days prior to the date of the conference. Exceptions to the attendance requirement may be granted upon permission of an Administrative Law Judge from the ADR Division or his/her designee, obtained prior to the conference date.

(2) Only the parties and attorneys of record may attend a scheduled mediation. Exceptions to attendance may be granted if agreed or consented to by the parties and attorneys of record and approved by a mediator or an Administrative Law Judge.

(h) (1) Any party or attorney directed or ordered by the Board to participate in or attend a mediation conference and who fails to attend the scheduled conference without reasonable grounds may be subject to civil penalties, attorney's fees, and/or costs. If the parties or attorneys agree to the postponement and/or rescheduling of a mediation conference, such request may be granted at the discretion of an Administrative Law Judge from the ADR Division or his/her designee upon good cause shown. Any


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party or attorney requesting cancellation, postponement or rescheduling of a mediation conference shall provide notice to all parties or their attorneys and shall promptly, but in no event later than 4:30 p.m. on the business day immediately before the scheduled mediation conference, notify the ADR Division of the request: (1) first, by telephone call; and (2) if so instructed by the ADR Division, by subsequent written or electronic confirmation.

(2) Whenever the pending mediation issues resolve or a case settles prior to a scheduled mediation date, the parties or attorneys shall immediately notify the ADR Division: (1) first, by telephone call; and (2) if so instructed by the ADR Division, by subsequent written or electronic confirmation.

(3) Any party or attorney who fails to follow the cancellation, postponement, or rescheduling procedures as outlined above in sections (h)(1) & (2), and who is unable to show good cause for such failure, may be subject to civil penalties, assessed attorney's fees, and/or costs.

(4) The ADR Division may postpone, reset, cancel or take off the calendar any mediation request, scheduled mediation, or Board ordered mediation.

(i) No person, party, or attorney shall, during the course of any mediation, engage in any discourteous, unprofessional, or disruptive conduct.


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§ 200. Compensation for Medical Care; Changes in Treatment; Filing of Medical Reports; Requests for Medical Information

(a)

(1) The employer/insurer have a duty to provide all reasonable and necessary medical treatment in a timely manner and to give appropriate assistance in contacting medical providers when necessary. The employee has a continuing obligation to cooperate with medical providers in the course of their treatment for work related injuries.

(2) Payment of compensation for costs by the employer or its insurer directly to the providers of medical, surgical and hospital care and other treatment, items, or services on behalf of the employee or directly to the employee shall satisfy employer's obligation to furnish the employee compensation for costs of such medical, surgical, hospital care and other treatment, items and services provided for by O.C.G.A. § 34-9-200(a).

(b) (1) Changes in treatment. Except as provided in subsection (b) of O.C.G.A. § 34-9-201, changes of physician or treatment are made only by agreement of the parties or by order of the Board. If there has been no hearing requested, a party requesting a change shall make a good faith effort to reach agreement on the change before requesting an order from the Board. If an agreement cannot be reached, the party requesting the change shall make the request on a Form WC-200b. When filing the WC-200b, the moving party shall sign the Form WC-200b, attach supporting documentation including a separate certificate of service identifying the names and addresses serviced attached to the end of the request, and serve a copy on all counsel and unrepresented parties. In cases that have been designated as "Medical Only", the requesting party shall file a Form WC-14 Notice of Claim or a Form WC-1 along with the Form WC-200b in order for the Board to process the request. The party making the request must specify the reason for the requested change, as well as the date that the change shall be effective. If the argument in support of the request is based on testimony, then an affidavit must be attached to the form, and if the argument refers to documents, then a copy of the documents must be attached. Do not use tabs to separate documents used as evidence. If the Board grants a change, the effective date will be the date that the Form WC-200b was filed, unless otherwise specified.


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Any party who objects to the request for a change of physician or treatment shall also file their objection on a Form WC-200b with the Board within 15 days of the date of the certificate of service on the request, including a separate certificate of service identifying the names and addresses served attached to the end of the objection, and serving a copy on all unrepresented parties and counsel. Affidavits and documents must be attached as specified above. All requests and objections to change of physicians shall be filed on a Form WC-200b and shall be limited to 50 pages, including briefs and exhibits, unless otherwise permitted by an Administrative Law Judge or the Board. Whenever the pending issues in a request resolve, in part or in whole, the parties or attorneys shall immediately notify the assigned Administrative Law Judge: (1) first, by telephone call; and (2) if so instructed, by subsequent written or electronic confirmation. Any party or attorney who fails to follow this procedure, and who is unable to show good cause for such failure, may be subject to civil penalties and/or assessed attorney's fees. If a hearing has been requested, the party requesting a change of physician or treatment may include the request in the original request for hearing, or amend the hearing request within 15 days prior to the date of the hearing to include the issue of change of physician or treatment. Upon consideration of the evidence, the Administrative Law Judge will render a decision on all the issues presented. If the parties agree on a change of physician or treatment, a properly executed Form WC-200a may be filed with the Board, with copies provided to the named medical provider(s) and parties to the claim, which form shall be deemed approved and made the order of the Board pursuant to O.C.G.A. § 34-9-200(b), unless otherwise ordered by the Board.

(2) The party requesting/objecting to a change in physician shall set forth reasons why the change will/will not benefit the employee, or provide the employee with medical care reasonably required to effect a cure, give relief, or restore the employee to suitable employment. Factors which may be considered in support of the request/objection may include, but are not limited to, the following:

(i) Proximity of physician's office to employee's residence;

(ii) Accessibility of physician to employee;

(iii) Excessive/redundant performance of medical procedures;

(iv) Necessity for specialized medical care;

(v) Language barrier;

(vi) Referral by authorized physician;

(vii) Noncompliance of physician with Board Rules and procedures;

(viii) Panel of physicians;

(ix) Duration of treatment without appreciable improvement;

(x) Number of prior treating physicians;

(xi) Prior requests for change of physician/treatment;


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(xii) Employee released to normal duty work by current authorized treating physician;

(xiii) Current physician indicates nothing more to offer.

(3) When filing a motion for reconsideration, the parties or attorneys shall: (1) immediately notify the Board or assigned Administrative Law Judge by telephone call; (2) use the ICMS doc-type labeled motion for reconsideration; (3) limit their motion to 20 pages, including briefs and exhibits, unless otherwise permitted by the Board or an Administrative Law Judge; and (4) serve a copy on all counsel and unrepresented parties, along with supporting documents, including a separate certificate of service identifying the names and addresses served.

(c)

(1) As long as an employee is receiving compensation, he or she shall submit himself or herself to examination by the authorized treating physician scheduled by the employer/insurer at reasonable times and with reasonable notice. If the employee refuses to submit himself or herself to or in any way obstructs such an examination requested by and provided for by the employer, upon order of the board his or her right to compensation shall be suspended until such refusal or objection ceases and no compensation shall at any time be payable for the period of suspension unless in the opinion of the board the circumstances justify the refusal or obstruction.

(2) Nothing contained herein shall be construed to abridge the employee's continued right to schedule his/her appointments for authorized medical treatment.

(d) The employer/insurer may suspend weekly benefits for refusal of the employee to submit to treatment only by order of the Board.

(e) Medical Reports The employer/insurer shall not file with the Board a medical report for any injury which occurred after January 1, 1989, except as follows:

(1) The report or its attachments contains a permanent partial disability rating (file within 10 days of employer/insurer's receipt);

(2) A rehabilitation plan is filed with the Board. In such instance the medical reports shall be filed with the rehabilitation plan;

(3) Medical reports are requested by the Board (file within 10 days of request.) Any additional medical reports required shall be filed within 10 days of the employer/insurer's receipt of same. The employer/insurer shall maintain copies of all medical reports in their files and shall not file medical reports except in compliance with this Rule.

(f)

(1) Requests for Medical Information. The employee shall, upon the request of the employer/insurer, furnish copies of all medical records and reports which are in his/her possession concerning the treatment for the accident which is the subject of the claim. The employee shall furnish the copies within 30 days of the date of the request. The


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employer/insurer shall pay the reasonable cost of the copies as provided by the Board-approved fee schedule.

(2) The employer/insurer shall, upon the request of the employee, furnish a copy of the posted panel of physicians, and copies of all medical records and reports in their possession concerning the treatment for the accident which is the subject of the claim, and shall, upon request of the employee, furnish copies of all medical records and reports which were obtained with a release of the employee provided pursuant to O.C.G.A. § 34-9-207(b), within 30 days of the date of the request at no expense to the employee.

(3) Upon failure of either party to furnish information as provided above, the physician or other medical providers shall, upon request, furnish copies of all medical reports and bills in their possession concerning the treatment for the accident which is the subject of the claim, at no expense to the employee or his/her attorney. A reasonable cost for copies pursuant to the fee schedule may be charged against the party determined to be responsible for payment of medical expenses. Nothing in this Rule shall limit an employee's right to obtain a complete copy of his/her medical records from any health care provider.

(g) Physicians as defined in O.C.G.A. § 34-9-201(a) may be called upon and may be issued a subpoena requiring their testimony as expert witnesses based upon their examinations and treatment of employees alleging work-related injuries. In lieu of live testimony at hearings in cases pending before the State Board of Workers' Compensation regarding matters subject to the Act, as permitted under O.C.G.A. § 24-10-24 (24-13-24 effective 1/1/13), depositions may be taken pursuant to O.C.G.A. § 34-9-26 et seq and O.C.G.A. § 34-9-102(d)(3), and said physicians shall be compensated for their preparation time and actual time pursuant to the provisions of the Board approved Fee Schedule or by a fee agreement agreed to by the parties and the physician.


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§ 201. Panel of Physicians

(a) The employer may satisfy the requirements for furnishing medical care under O.C.G.A. § 34-9-200 in one of the following manners:

(1)

(i) A traditional posted panel of physicians shall consist of at least six physicians or professional associations or corporations of physicians who are reasonably accessible to the employees, but is not limited to the minimum of six. However, should a physician on the panel of physicians refuse to provide treatment to an employee who previously has received treatment from another panel physician, the employer/insurer, as soon as practicable, shall increase the panel for that employee by one physician for each such refusal. The Board may grant exceptions to the required size of the panel where it is demonstrated that more than four physicians or groups of physicians are not reasonably accessible. The physicians selected under this subsection from the panel may arrange for any consultation, referral, and extraordinary or other specialized medical services as the nature of the injury shall require without prior authorization from the Board; provided, however, that any medical practitioner providing services as arranged by a primary authorized treating physician under O.C.G.A. § 34-9-201(b)(1) shall not be permitted to arrange for any additional referrals. The minimum panel shall include an orthopedic physician, and no more than two physicians shall be from industrial clinics. Further, this panel shall include one minority physician. The minority physician so selected must practice within the State of Georgia or be reasonably accessible to the employee's residence. "Minority" shall be defined as a group which has been subjected to prejudice based on race, color, sex, handicap or national origin, including, but not limited to Black Americans, Hispanic Americans, Native Americans or Asian Americans. Failure to include one minority physician on the panel does not necessarily render the panel invalid. The Board reserves the right to allow exceptions when warranted. The employee may make one change from one physician to another on the same panel without prior authorization of the Board. The party which challenges the validity of a panel shall have


89

the burden of proving that the panel violates the provisions of O.C.G.A. § 34-9-201 and Board Rule 201.

(ii) In the event that the Board has granted any exceptions to the panel requirements, all exceptions must be posted at the same location as the panel.

(2) An employer or the workers' compensation insurer of an employer may contract with a workers' compensation managed care organization certified pursuant to O.C.G.A. § 34-9-208 and Board Rule 208. A "workers' compensation managed care organization" (hereinafter "WC/MCO") means a plan certified by the Board that provides for the delivery and management of treatment to injured employees under the Georgia Workers' Compensation Act. The party which challenges the validity of the WC/MCO panel shall have the burden of proving that the panel violates the provisions herein. An employer utilizing a WC/MCO may satisfy the notice requirements of O.C.G.A. § 34-9-201(c) by posting a notice in prominent places upon the business premises which includes the following information:

(A) The employer has enrolled with the specified WC/MCO to provide all necessary medical treatment for workers' compensation injuries. An employee with an injury prior to enrollment may continue to receive treatment from the non-participating authorized treating physician until the employee elects to utilize the WC/MCO;

(B) The effective date of the WC/MCO;

(C) The geographical service area (by counties);

(D) The telephone number and address of the administrator for the employer and/or WC/MCO who can answer questions about the managed care plan;

(E) How the employee can access care with the WC/MCO and the toll-free 24-hour telephone number of the managed care plan that informs employees of available services.

(b) The employer/insurer cannot restrict treatment of the employee to the panel of physicians or WC/MCO when the claim has been controverted. However, if the controverted claim is subsequently found to be or is accepted as compensable, the employee is authorized to select one of the physicians who has provided treatment for the work-related injury prior to the finding or acceptance of compensability, and after notice has been given to the employer, that physician so selected becomes the authorized treating physician. The employee may thereafter make one change from that physician to another physician without approval of the employer and without an order of the Board. However, any further change of physician or treatment must be in accordance with O.C.G.A. § 34-9-200 and Board Rule 200.

(c) When a case has not been controverted but the employer fails to provide any of the procedures for selection of physicians as set forth in O.C.G.A. § 34-9-201(c), the employee is authorized to select a physician who is not listed on the employer's posted panel of physicians or WC/MCO. After notice has been given to the employer, that physician so selected becomes the authorized treating physician, and the employee may make one change from that physician to another physician without approval of the employer and without an order of the Board. However,


90

any further change of physician or treatment must be in accordance with O.C.G.A. § 34-9-200 and Board Rule 200.

(d) A party requesting a change of physician must do so in the manner prescribed by Board Rule 200.


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§ 202. Examinations

(a) Examinations contemplated by O.C.G.A. § 34-9-202 shall include physical, psychiatric and psychological examinations. An examination shall also include reasonable and necessary testing as ordered by the examining physician.

(b) The examining physician may require prepayment pursuant to the Fee Schedule base amount for up to the first two hours ($1200.00). Payment for any additional charges pursuant to the Fee Schedule shall be due within 30 days of receipt of the report and charges by the employer/insurer.

(c) The employer shall give ten days written notice of the time and place of any requested examination. Advance payment of travel expenses required by Rule 203(e) shall accompany such notice.

(d) The employer/insurer shall not suspend weekly benefits for refusal of the employee to submit to examination except by order of the Board.

(e) Within 120 days of the employee's receipt of any income benefits, the employee shall provide written notice to the employer/insurer of his/her intent to exercise the right to have a one-time independent medical examination at a reasonable time and place.


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§ 206. Reimbursement of Group Carrier or Other Healthcare Provider

(a) Only a party to a claim, a group insurance company or other healthcare provider who covers the costs of medical treatment or provides medical services to the employee may file a Form WC-206

(b) Form WC-206, shall include supporting documentation and an explanation of any dispute and shall be submitted to the Board by the party seeking reimbursement during the pendency of the claim. Copies shall also be sent by the party requesting reimbursement to all counsel and unrepresented parties at interest.

(c) When the Board receives a request for reimbursement and designation as a party at interest, the Board will provide the requesting party with notice of any hearing at which the party at interest will be permitted to present evidence of its claimed interest.


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§ 240. Offer of Suitable Employment

(a) For suspension and reinstatement of income benefits by interlocutory order generally, see Board Rule 102D.

(b) When an employee unjustifiably refuses to accept employment which has been approved by the authorized treating physician(s) suitable to his/her impaired condition and offered to the employee in writing, the employer/insurer may suspend payment of income benefits to that employee without an order of the Board in the following manner:

(1) File with the Board a Form WC-2 and Form WC-240 certifying that at least ten days before the employee was required to report for work he/she was notified on the completed Form WC-240 mailed to the employee and his/her attorney that there was a suitable job available, that it was approved by his/her authorized treating physician(s) after an examination within the last 60 days, and refusal to attempt to perform the job would result in the suspension of payment of weekly income benefits to the employee. The employer/insurer shall provide to the employee and legal counsel a copy of any job description/analysis in reference to subparagraph (3)(i), (ii) and (iii) at the time of submission to the authorized treating physician(s).

(2) If filing via EDI, section (b)(1) shall be followed and the employer/insurer shall simultaneously mail to, or electronically file with, the Board the filed Subsequent Report of Injury (SROI) or Form WC-2 and a copy of the served Form WC-240 and supporting medical report from employee's authorized treating physician. Pursuant to Board Rule 60(c), all documents filed with the Board shall contain the employee's name, date of injury, and Board claim number. Any document that does not contain this information shall be rejected by the Board. Copies of all filings shall be served on the employee and the employee's attorney, if represented.

(3) Attached to the Form WC-240 shall be:

(i) A description of the essential job duties to be performed, including the hours to be worked, the rate of payment, and a description of the essential tasks to be performed;


94

(ii) The written approval of the authorized treating physician(s) of the essential job duties to be performed;

(iii) The location of the job, with the date and time that the employee is to report to work.

Attaching a properly completed Form WC-240A will satisfy the requirements for making a proper offer of employment as set forth herein.

(4) If the employee attempts the proffered job for less than eight cumulative hours or one scheduled workday, whichever is greater, or refuses to attempt to perform the proffered job after receiving the above notification, the employer/insurer shall be authorized to suspend payment of income benefits to the employee effective the date that they unjustifiably refused to report to work.

(c) Should the employee accept the employment offered by the employer/insurer and attempt the proffered job for eight cumulative hours or one scheduled workday, whichever is greater, but fail to continue working for more than the prescribed fifteen (15) scheduled work days, the employer/insurer, whether or not they have sent a WC-240, shall immediately reinstate payment of income benefits and shall file with the Board and serve upon the employee the appropriate Form WC-2 reflecting the reinstatement of income benefits.

(i) Failure to immediately reinstate benefits pursuant to Board Rule 240 (c), shall result in the waiver of the employer/insurer's defense of the suitability of employment for the period of time the employer/insurer did not pay the employee's weekly income benefits when due.

(ii) When the employer/insurer immediately reinstates benefits pursuant to Board Rule 240 (c), the employer/insurer are entitled to seek reimbursement of such benefits at a hearing addressing the suitability of the proffered employment.

(d) When calculating the fifteen (15) scheduled work days provided by statute, the employer/insurer shall include as a work day each day or part thereof during which the employee is scheduled to perform his/her job duties.

(e) The employer/insurer shall also be entitled to suspend payment of weekly benefits to the employee pending a hearing by an order of the Board finding an unjustifiable refusal of the employee to accept employment procured for him/her suitable to his/her capacity. A motion requesting this order may be made simultaneously with the filing of a request for hearing or at any time during the pendency of the hearing and award and shall be filed on Form WC-102D, and must be accompanied by an affidavit from the employer setting forth that suitable employment has been offered to the employee as set forth in (b) above, the offer is continuing, and analysis of the job is attached. The employer/insurer shall have the employee examined by the authorized treating physician(s) within 60 days prior to this request for suspension of income benefits. No request for suspension of income benefits for failure to accept suitable employment shall be granted unless the authorized treating physician(s) approve(s) the job offered by the employer/insurer. A party who objects to this motion shall file their response on Form WC-102D with the Board within 15 days of the date of the certificate of service on the request, and shall serve a copy on all counsel and unrepresented parties.


95

(f) The Board may also issue an interlocutory order reinstating weekly income benefits pending a hearing. A party making this motion shall file Form WC-102D, and shall serve a copy, along with a copy of supporting documents, on all counsel and unrepresented parties. A motion requesting this order may be made simultaneously with the filing of a request for hearing based on a change in condition or at any time during the pendency of the hearing and award and must be accompanied by an affidavit of the employee setting forth his contentions, along with current medical records when applicable. A party who objects to this motion shall file Form WC-102D with the Board within 15 days of the date of the Certificate of Service on Form WC-102D and shall serve a copy on all counsel and unrepresented parties.

(g) In the event the employee's weekly benefits are suspended pursuant to O.C.G.A. 34-9-240(b)(2), the employer/insurer shall comply with O.C.G.A. 34-9-263 and Board Rule 263.


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§ 244. Reimbursement for Payment of Disability Benefits

(a) A provider of disability benefits who requests reimbursement shall file Form WC-244 with the Board, and shall serve a copy on all counsel and unrepresented parties.

(b) Form WC-244 shall provide supporting documentation including the policy/plan provision authorizing the provider to obtain reimbursement and an explanation of any dispute and shall be submitted to the Board by the party seeking reimbursement during the pendency of the claim.


THE CHIEF JUSTICE’S COMMISSION ON PROFESSIONALISM(Founded 1989)

A Brief History of the Chief Justice’s Commission on Professionalism

Karlise Y. Grier, Executive Director

The mission of the Commission is to support and encourage lawyers to exercise the highestlevels of professional integrity in their relationships with their clients, other lawyers, the courts andthe public, and to fulfill their obligations to improve the law and legal system and to ensure accessto that system.

After a series of meetings of key figures in Georgia’s legal community in 1988, in Februaryof 1989, the Supreme Court of Georgia created the Chief Justice’s Commission on Professionalism,the first entity of this kind in the world created by a high court to address legal professionalism. InMarch of 1989, the Rules of the State Bar of Georgia were amended to lay out the purpose,members, powers and duties of the Commission. The brainchild of Justice Thomas Marshall andpast Emory University President James Laney, they were joined by Justices Charles Weltner andHarold Clarke and then State Bar President A. James Elliot in forming the Commission. Theimpetus for this entity then and now is to address uncivil approaches to the practice of law, as manybelieve legal practice is departing from its traditional stance as a high calling – like medicine andthe clergy – to a business.

The Commission carefully crafted a statement of professionalism, A Lawyers Creed andAspirational Statement on Professionalism, guidelines and standards addressing attorneys’relationships with colleagues, clients, judges, law schools and the public, and retained its firstexecutive director, Hulett “Bucky” Askew. Professionalism continuing legal education wasmandated and programming requirements were developed by then assistant and second executivedirector Sally Evans Lockwood. During the 1990s, after the Commission conducted a series ofconvocations with the bench and bar to discern professionalism issues from practitioners’ views, theState Bar instituted new initiatives, such as the Committee on Inclusion in the Profession (fkaWomen and Minorities in the Profession Committee). Then the Commission sought the concernsof the public in a series of town hall meetings held around Georgia. Two concerns raised in thesemeetings were: lack of civility and the economic pressures of law practice. As a result, the State Barof Georgia established the Law Practice Management Program.

Over the years, the Commission has worked with the State Bar to establish other programsthat support professionalism ideals, including the Consumer Assistance Program and the DiversityProgram. In 1993, under President Paul Kilpatrick, the State Bar’s Committee on Professionalismpartnered with the Commission in establishing the first Law School Orientation on ProfessionalismProgram for incoming law students held at every Georgia law school. This program was replicatedat more than forty U.S. law schools. It engages volunteer practicing attorneys, judges and lawprofessors with law students in small group discussions of hypothetical contemporaryprofessionalism and ethics situations.

In 1997, the Justice Robert Benham Community Service Awards Program was initiated torecognize members of the bench and bar who have combined a professional career with outstandingservice to their communities around Georgia. The honorees are recognized for voluntaryparticipation in community organizations, government-sponsored activities, youth programs,


religious activities or humanitarian work outside of their professional practice or judicial duties. This annual program is now usually held at the State Bar Headquarters in Atlanta and is co-sponsored by the Commission and the State Bar. The program generally attracts several hundredattendees who celebrate Georgia lawyers who are active in the community.

In 2006, veteran attorney and former law professor, Avarita L. Hanson became the thirdexecutive director. In addition to providing multiple CLE programs for local bars, government andlaw offices, she served as Chair of the ABA Consortium on Professionalism Initiatives, a group thatinforms and vets ideas of persons interested in development of professionalism programs. Sheauthored the chapter on Reputation, in Paul Haskins, Ed., ESSENTIAL QUALITIES OF THE

PROFESSIONAL LAWYER, ABA Standing Committee on Professionalism, ABA Center forProfessional Responsibility (July 2013) and recently added to the newly-released accompanyingInstructor’s Manual (April 2017). Ms. Hanson retired in August 2017 after a distinguished careerserving the Commission.

Today, the Commission, which meets three times per year, is under the direction andmanagement of its fourth executive director, attorney Karlise Yvette Grier. The Commissioncontinues to support and advise persons locally, nationally and globally who are interested inprofessionalism programming and maintains a resource library to support its mission. The ChiefJustice of the Supreme Court of Georgia serves as the Commission’s chair, and Chief Justice P.Harris Hines currently serves in this capacity. The Commission has twenty-two membersrepresenting practicing lawyers, the state appellate and trial courts, the federal district court, allGeorgia law schools and the public. (See Appendix A). In addition to the executive director, theCommission staff includes Terie Latala (Assistant Director) and Nneka Harris Daniel(Administrative Assistant). With its chair, members and staff, the Commission is well equipped tofulfill its mission and to inspire and develop programs to address today’s needs of the legalprofession and those concerns on the horizon. (See Appendix B).

The Commission works through committees (Access to Justice, Finance and Personnel,Educational Video Projects, Professionalism Curriculum, Benham Awards Selection) in carryingout some of its duties. It also works with other state and national entities, such as the American BarAssociation’s Center for Professional Responsibility and its other groups. To keep Georgia Barmembers abreast of professionalism activities and issues, there is a regular column on theProfessionalism Page of every issue of the Georgia Bar Journal. Current Commission projectsinclude: globalization of the law, the delivery of legal services, addressing issues of lawyers agingin the practice of law, intergenerational communications, innovations in professionalism law schoolcurriculum and supporting access to justice initiatives.

After 29 years, the measure of effectiveness of the Chief Justice’s Commission onProfessionalism may ultimately rest in the actions, character and demeanor of every Georgia lawyer. There remains work to do. The Commission’s leadership and dedication to this cause, along withGeorgia’s capable, committed and innovative bench and bar, will continue to lead the charge,movement and dialogue on legal professionalism.

Chief Justice’s Commission on Professionalism104 Marietta Street, N.W.Suite 104Atlanta, Georgia 30303(404) [email protected]


CHIEF JUSTICE’S COMMISSION ON PROFESSIONALISM

PROFESSIONALISM AND GEORGIA’S LEGAL PROFESSION

THE MEANING OF PROFESSIONALISM

The three ancient learned professions were the law, medicine, and ministry. The word

profession comes from the Latin professus, meaning to have affirmed publicly. As one legal scholar

has explained, “The term evolved to describe occupations that required new entrants to take an oath

professing their dedication to the ideals and practices associated with a learned calling.” Many1

attempts have been made to define a profession in general and lawyer professionalism in particular.

The most commonly cited is the definition developed by the late Dean Roscoe Pound of Harvard

Law School:

The term refers to a group . . . pursuing a learned art as a common calling in the spirit

of public service - no less a public service because it may incidentally be a means of

livelihood. Pursuit of the learned art in the spirit of a public service is the primary

purpose.2

Thinking about professionalism and discussing the values it encompasses can provide

guidance in the day-to-day practice of law. Professionalism is a wide umbrella of values

encompassing competence, character, civility, commitment to the rule of law, to justice and to the

public good. Professionalism calls us to be mindful of the lawyer’s roles as officer of the court,

advocate, counselor, negotiator, and problem solver. Professionalism asks us to commit to

improvement of the law, the legal system, and access to that system. These are the values that make

us a profession enlisted in the service not only of the client but of the public good as well. While

none of us achieves perfection in serving these values, it is the consistent aspiration toward them that

defines a professional. The Commission encourages thought not only about the lawyer-client

relationship central to the practice of law but also about how the legal profession can shape us as

people and a society.

BACKGROUND ON THE LEGAL PROFESSIONALISM MOVEMENT IN GEORGIA

In 1986, the American Bar Association ruefully reported that despite the fact that

lawyers’ observance of the rules of ethics governing their conduct is sharply on the rise, lawyers’

professionalism, by contrast, may well be in steep decline:

DEBORAH L. RHODE, PROFESSIONAL RESPONSIBILITY: ETHICS BY THE PERVASIVE METHOD 39 (1994)1

ROSCOE POUND, THE LAWYER FROM ANTIQUITY TO MODERN TIMES 5 (1953)2


[Although] lawyers have tended to take the rules more seriously because of an

increased fear of disciplinary prosecutions and malpractice suits, . . . [they] have

also tended to look at nothing but the rules; if conduct meets the minimum

standard, lawyers tend to ignore exhortations to set their standards at a higher

level.3

The ABA’s observation reflects a crucial distinction: while a canon of ethics may cover what

is minimally required of lawyers, “professionalism” encompasses what is more broadly expected

of them – both by the public and by the best traditions of the legal profession itself.

In response to these challenges, the State Bar of Georgia and the Supreme Court of Georgia

embarked upon a long-range project – to raise the professional aspirations of lawyers in the state.

Upon taking office in June 1988, then State Bar President A. James Elliott gave Georgia’s

professionalism movement momentum when he placed the professionalism project at the top of his

agenda. In conjunction with Chief Justice Marshall, President Elliott gathered 120 prominent judges

and lawyers from around the state to attend the first Annual Georgia Convocation on

Professionalism.

For its part, the Georgia Supreme Court took three important steps to further the

professionalism movement in Georgia. First, at the first Convocation, the Supreme Court of Georgia

announced and administered to those present a new Georgia attorney’s oath emphasizing the virtue

of truthfulness, reviving language dating back to 1729. (See also Appendix C). Second, as a result

of the first Convocation, in 1989, the Supreme Court of Georgia took two additional significant steps

to confront the concerns and further the aspirations of the profession. First, it created the Chief

Justice’s Commission on Professionalism (the “Commission”) and gave it a primary charge of

ensuring that the practice of law in this state remains a high calling, enlisted in the service not only

of the client, but of the public good as well. This challenging mandate was supplemented by the

Court’s second step, that of amending the mandatory continuing legal education (CLE) rule to

require all active Georgia lawyers to complete one hour of Professionalism CLE each year [Rule 8-

104 (B)(3) of the Rules and Regulations for the Organization and Government of the State Bar of

Georgia and Regulation (4) thereunder].

GENERAL PURPOSE OF CLE PROFESSIONALISM CREDIT

Beginning in 1990, the Georgia Supreme Court required all active Georgia lawyers to

complete one hour of Professionalism CLE each year [Rule 8-104 (B)(3) of the Rules and

Regulations for the Organization and Government of the State Bar of Georgia and Regulation (4)

thereunder]. The one hour of Professionalism CLE is distinct from and in addition to the required

ethics CLE. The general goal of the Professionalism CLE requirement is to create a forum in which

lawyers, judges and legal educators can explore the meaning and aspirations of professionalism in

AMERICAN BAR ASSOCIATION COMMISSION ON PROFESSIONALISM, “ . . . IN THE SPIRIT OF PUBLIC SERVICE:” A3

BLUEPRINT FOR THE REKINDLING OF LAWYER PROFESSIONALISM, (1986) P.7.


contemporary legal practice and reflect upon the fundamental premises of lawyer professionalism

– competence, character, civility, commitment to the rule of law, to justice, and to the public good.

Building a community among the lawyers of this state is a specific goal of this requirement.

DISTINCTION BETWEEN ETHICS AND PROFESSIONALISM

The Supreme Court has distinguished between ethics and professionalism, to the extent of

creating separate one-hour CLE requirements for each. The best explanation of the distinction

between ethics and professionalism that is offered by former Chief Justice Harold Clarke of the

Georgia Supreme Court:

“. . . the idea [is] that ethics is a minimum standard which is required of all

lawyers, while professionalism is a higher standard expected of all lawyers.”

Laws and the Rules of Professional Conduct establish minimal standards of consensus

impropriety; they do not define the criteria for ethical behavior. In the traditional sense, persons are

not “ethical” simply because they act lawfully or even within the bounds of an official code of

ethics. People can be dishonest, unprincipled, untrustworthy, unfair, and uncaring without breaking

the law or the code. Truly ethical people measure their conduct not by rules but by basic moral

principles such as honesty, integrity and fairness.

The term “Ethics” is commonly understood in the CLE context to mean “the law of

lawyering” and the rules by which lawyers must abide in order to remain in good standing before

the bar. Legal Ethics CLE also includes malpractice avoidance. “Professionalism” harkens back

to the traditional meaning of ethics discussed above. The Commission believes that lawyers should

remember in counseling clients and determining their own behavior that the letter of the law is only

a minimal threshold describing what is legally possible, while professionalism is meant to address

the aspirations of the profession and how we as lawyers should behave. Ethics discussions tend to

focus on misconduct -- the negative dimensions of lawyering. Professionalism discussions have

an affirmative dimension -- a focus on conduct that preserves and strengthens the dignity,

honor, and integrity of the legal system.

As former Chief Justice Benham of the Georgia Supreme Court says, “We should expect

more of lawyers than mere compliance with legal and ethical requirements.”

ISSUES AND TOPICS

In March of 1990, the Chief Justice’s Commission adopted A Lawyer’s Creed (See Appendix

D) and an Aspirational Statement on Professionalism (See Appendix E). These two documents

should serve as the beginning points for professionalism discussions, not because they are to be

imposed upon Georgia lawyers or bar associations, but because they serve as words of

encouragement, assistance and guidance. These comprehensive statements should be utilized to

frame discussions and remind lawyers about the basic tenets of our profession.


Specific topics which can be the subjects of Professionalism CLE include:

� Access to Justice

� Administration of Justice

� Advocacy - effective persuasive advocacy techniques for trial, appellate, and other

representation contexts

� Alternative Dispute Resolution - negotiation, settlement, mediation, arbitration, early neutral

evaluation, other dispute resolution processes alternative to litigation

� Billable Hours

� Civility

� Client Communication Skills

� Client Concerns and Expectations

� Client Relations Skills

� Commercial Pressures

� Communication Skills (oral and written)

� Discovery - effective techniques to overcome misuse and abuse

� Diversity and Inclusion Issues - age, ethnic, gender, racial, sexual orientation, socioeconomic

status

� Law Practice Management - issues relating to development and management of a law

practice including client relations and technology to promote the efficient, economical and

competent delivery of legal services.

Practice Management CLE includes, but is not limited to, those

activities which (1) teach lawyers how to organize and manage their

law practices so as to promote the efficient, economical and

competent delivery of legal services; and (2) teach lawyers how to

create and maintain good client relations consistent with existing

ethical and professional guidelines so as to eliminate malpractice

claims and bar grievances while improving service to the client and

the public image of the profession.

� Mentoring

� Proficiency and clarity in oral, written, and electronic communications - with the court,

lawyers, clients, government agencies, and the public

� Public Interest

� Quality of Life Issues - balancing priorities, career/personal transition, maintaining

emotional and mental health, stress management, substance abuse, suicide prevention,

wellness

� Responsibility for improving the administration of justice

� Responsibility to ensure access to the legal system

� Responsibility for performing community, public and pro bono service

� Restoring and sustaining public confidence in the legal system, including courts, lawyers,

the systems of justice


� Roles of Lawyers

The Lawyer as Advocate

The Lawyer as Architect of Future Conduct

The Lawyer as Consensus Builder

The Lawyer as Counselor

The Lawyer as Hearing Officer

The Lawyer as In-House Counsel

The Lawyer as Judge (or prospective judge)

The Lawyer as Negotiator

The Lawyer as Officer of the Court

The Lawyer as Problem Solver

The Lawyer as Prosecutor

The Lawyer as Public Servant

� Satisfaction in the Legal Profession� Sexual Harassment� Small Firms/Solo Practitioners

Karl N. Llewellyn, jurisprudential scholar who taught at Yale, Columbia, and the University

of Chicago Law Schools, often cautioned his students:

The lawyer is a man of many conflicts. More than anyone else in our society, he

must contend with competing claims on his time and loyalty. You must represent

your client to the best of your ability, and yet never lose sight of the fact that you are

an officer of the court with a special responsibility for the integrity of the legal

system. You will often find, brethren and sistern, that those professional duties do

not sit easily with one another. You will discover, too, that they get in the way of

your other obligations – to your conscience, your God, your family, your partners,

your country, and all the other perfectly good claims on your energies and hearts.

You will be pulled and tugged in a dozen directions at once. You must learn to

handle those conflicts.4

The real issue facing lawyers as professionals is developing the capacity for critical and

reflective judgment and the ability to “handle those conflicts,” described by Karl Llewellyn. A

major goal of Professionalism CLE is to encourage introspection and dialogue about these issues.

MARY ANN GLENDON, A NATION UNDER LAWYERS 17 (1994)4


CHIEF JUSTICE’S COMMISSION ONPROFESSIONALISM

Harold D. Melton, Chief Justice Supreme Court of Georgia

Karlise Y. GrierExecutive Director

Suite 620 • 104 Marietta Street, NW • Atlanta, Georgia 30303Phone: (404) 225-5040 • Fax: (404) 225-5041 • E-mail: [email protected]

APPENDICES

A – 2018-2019 COMMISSION MEMBERS

B – MISSION STATEMENT

C – OATH OF ADMISSION

D – A LAWYER’S CREED

E – ASPIRATIONAL STATEMENT ON

PROFESSIONALISM


APPENDIX A

CHIEF JUSTICE’S COMMISSION ON PROFESSIONALISM

2018 - 2019

Members

The Honorable Harold D. Melton (Chair), Atlanta Professor Nathan S. Chapman, Athens Professor Clark D. Cunningham, Atlanta The Honorable J. Antonio DelCampo, Atlanta Mr. Gerald M. Edenfield, Statesboro

The Honorable Susan E. Edlein, Atlanta Ms. Elizabeth L. Fite, Decatur

Ms. Rebecca Grist, Macon

Associate Dean Sheryl Harrison-Mercer, Atlanta The Honorable Kenneth B. Hodges III, Covington The Honorable Steve C. Jones, Atlanta The Honorable Meng H. Lim, TallapoosaProfessor Patrick E. Longan, MaconMs. Maria Mackay, Watkinsville

The Honorable Carla W. McMillian, Atlanta

The Honorable Rizza O' Connor, LyonsMs. Claudia S. Saari, Decatur

Ms. Adwoa Ghartey-Tagoe Seymour, Atlanta Assistant Dean Rita A. Sheffey, Atlanta Ms. Nicki Noel Vaughan, Gainesville

Mr. R. Kyle Williams, Decatur

Dr. Monica L. Willis-Parker, Stone Mountain

Advisors

The Honorable Robert Benham, Atlanta

Ms. Jennifer M. Davis, Atlanta

The Honorable Britt C. Grant, AtlantaThe Honorable Horace J. Johnson, Atlanta

Professor Roy M. Sobelson, Atlanta

LIAISONS

Mr. Robert Arrington, Atlanta

Mr. Jeffrey R. Davis, Atlanta

Ms. Paula J. Frederick, Atlanta

Professor Nicole G. Iannarone, Atlanta

Ms. Michelle E. West, Atlanta

Ms. DeeDee Worley, Atlanta

Staff

Ms. Karlise Y. Grier, Atlanta

Italics denotes public member/non-lawyer


APPENDIX B

MISSION STATEMENT

The mission of the Chief Justice’s Commission onProfessionalism is to support and encourage lawyers to exercisethe highest levels of professional integrity in their relationshipswith their clients, other lawyers, the courts, and the public andto fulfill their obligations to improve the law and the legalsystem and to ensure access to that system.

CALLING TO TASKS

The Commission seeks to foster among lawyers an activeawareness of its mission by calling lawyers to the followingtasks, in the words of former Chief Justice Harold Clarke:

1. To recognize that the reason for the existence of lawyersis to act as problem solvers performing their service onbehalf of the client while adhering at all times to thepublic interest;

2. To utilize their special training and natural talents inpositions of leadership for societal betterment;

3. To adhere to the proposition that a social conscience anddevotion to the public interest stand as essential elementsof lawyer professionalism.

��


APPENDIX C

HISTORICAL INFORMATION ABOUT THE COMMISSION’S ROLES IN THEDEVELOPMENT OF THE CURRENT GEORGIA ATTORNEY OATH

In 1986, Emory University President James T. Laney delivered a lecture on “Moral

Authority in the Professions.” While expressing concern about the decline in moral authority of all

the professions, he focused on the legal profession because of the respect and confidence in which

it has traditionally been held and because it has been viewed as serving the public in unique and

important ways. Dr. Laney expressed the fear that the loss of moral authority has as serious a

consequence for society at large as it does for the legal profession.

For its part, the Georgia Supreme Court took an important step to further the professionalism

moment in Georgia. At the first convocation on professionalism, the Court announced and

administered to those present a new Georgia attorney’s oath emphasizing the virtue of truthfulness,

reviving language dating back to 1729. Reflecting the idea that the word “profession” derives from

a root meaning “to avow publicly,” this new oath of admission to the State Bar of Georgia indicates

that whatever other expectations might be made of lawyers, truth-telling is expected, always and

everywhere, of every true professional. Since the convocation, the new oath has been administered

to thousands of lawyers in circuits all over the state.

Attorney’s Oath

I,_____________, swear that I will truly and honestly, justly, and uprightly demean myself,

according to the laws, as an attorney, counselor, and solicitor, and that I will support and defend

the Constitution of the United States and the Constitution of the State of Georgia. So help me God.

In 2002, at the request of then-State Bar President George E. Mundy, the Committee on

Professionalism was asked to revise the Oath of Admission to make the wording more relevant to

the current practice of law, while retaining the original language calling for lawyers to “truly and

honestly, justly and uprightly” conduct themselves. The revision was approved by the Georgia

Supreme Court in 2002.


APPENDIX C

OATH OF ADMISSION

TO THE STATE BAR OF GEORGIA

“I,___________________, swear that I will truly and honestly,

justly and uprightly conduct myself as a member of this learned

profession and in accordance with the Georgia Rules of

Professional Conduct, as an attorney and counselor and that I will

support and defend the Constitution of the United States and the

Constitution of the State of Georgia. So help me God.”

As revised by the Supreme Court of Georgia, April 20, 2002


APPENDIX D

A LAWYER’S CREED

To my clients, I offer faithfulness, competence, diligence, and goodjudgement. I will strive to represent you as I would want to be represented and to beworthy of your trust.

To the opposing parties and their counsel, I offer fairness, integrity, andcivility. I will seek reconciliation and, if we fail, I will strive to make our dispute adignified one.

To the courts, and other tribunals, and to those who assist them, I offerrespect, candor, and courtesy. I will strive to do honor to the search for justice.

To my colleagues in the practice of law, I offer concern for your welfare. Iwill strive to make our association a professional friendship.

To the profession, I offer assistance. I will strive to keep our business aprofession and our profession a calling in the spirit of public service.

To the public and our systems of justice, I offer service. I will strive toimprove the law and our legal system, to make the law and our legal system availableto all, and to seek the common good through the representation of my clients.

Entered by Order of Supreme Court of Georgia, October 9, 1992, nunc pro tunc July 3, 1990; Part IX of theRules and Regulations of the State Bar of Georgia, as amended September 10, 2003 and April 26, 2013


APPENDIX E

ASPIRATIONAL STATEMENT ON PROFESSIONALISM

The Court believes there are unfortunate trends of commercialization and loss of

professional community in the current practice of law. These trends are manifested in an undue

emphasis on the financial rewards of practice, a lack of courtesy and civility among members of

our profession, a lack of respect for the judiciary and for our systems of justice, and a lack of

regard for others and for the common good. As a community of professionals, we should strive

to make the internal rewards of service, craft, and character, and not the external reward of

financial gain, the primary rewards of the practice of law. In our practices we should remember

that the primary justification for who we are and what we do is the common good we can achieve

through the faithful representation of people who desire to resolve their disputes in a peaceful

manner and to prevent future disputes. We should remember, and we should help our clients

remember, that the way in which our clients resolve their disputes defines part of the character of

our society and we should act accordingly.

As professionals, we need aspirational ideals to help bind us together in a professional

community. Accordingly, the Court issues the following Aspirational Statement setting forth

general and specific aspirational ideals of our profession. This statement is a beginning list of the

ideals of our profession. It is primarily illustrative. Our purpose is not to regulate, and certainly

not to provide a basis for discipline, but rather to assist the Bar’s efforts to maintain a

professionalism that can stand against the negative trends of commercialization and loss of

community. It is the Court’s hope that Georgia’s lawyers, judges, and legal educators will use the

following aspirational ideals to reexamine the justifications of the practice of law in our society and

to consider the implications of those justifications for their conduct. The Court feels that

enhancement of professionalism can be best brought about by the cooperative efforts of the

organized bar, the courts, and the law schools with each group working independently, but also

jointly in that effort.



APPENDIX E

GENERAL ASPIRATIONAL IDEALS

As a lawyer, I will aspire:

(a) To put fidelity to clients and, through clients, to the common good, before selfish

interests.

(b) To model for others, and particularly for my clients, the respect due to those we call

upon to resolve our disputes and the regard due to all participants in our dispute

resolution processes.

(c) To avoid all forms of wrongful discrimination in all of my activities including

discrimination on the basis of race, religion, sex, age, handicap, veteran status, or

national origin. The social goals of equality and fairness will be personal goals for

me.

(d) To preserve and improve the law, the legal system, and other dispute resolution

processes as instruments for the common good.

(e) To make the law, the legal system, and other dispute resolution processes available

to all.

(f) To practice with a personal commitment to the rules governing our profession and

to encourage others to do the same.

(g) To preserve the dignity and the integrity of our profession by my conduct. The

dignity and the integrity of our profession is an inheritance that must be maintained

by each successive generation of lawyers.

(h) To achieve the excellence of our craft, especially those that permit me to be the

moral voice of clients to the public in advocacy while being the moral voice of the

public to clients in counseling. Good lawyering should be a moral achievement for

both the lawyer and the client.

(i) To practice law not as a business, but as a calling in the spirit of public service.



APPENDIX E

SPECIFIC ASPIRATIONAL IDEALS

As to clients, I will aspire:

(a) To expeditious and economical achievement of all client objectives.

(b) To fully informed client decision-making.

As a professional, I should:

(1) Counsel clients about all forms of dispute resolution;

(2) Counsel clients about the value of cooperation as a means towards the

productive resolution of disputes;

(3) Maintain the sympathetic detachment that permits objective and

independent advice to clients;

(4) Communicate promptly and clearly with clients; and,

(5) Reach clear agreements with clients concerning the nature of the

representation.

(c) To fair and equitable fee agreements.


(1) Discuss alternative methods of charging fees with all clients;

(2) Offer fee arrangements that reflect the true value of the services rendered;

(3) Reach agreements with clients as early in the relationship as possible;

(4) Determine the amount of fees by consideration of many factors and not just

time spent by the attorney;

(5) Provide written agreements as to all fee arrangements; and,

(6) Resolve all fee disputes through the arbitration methods provided by the

State Bar of Georgia.

(d) To comply with the obligations of confidentiality and the avoidance of conflicting

loyalties in a manner designed to achieve the fidelity to clients that is the purpose

of these obligations.

As to opposing parties and their counsel, I will aspire:

(a) To cooperate with opposing counsel in a manner consistent with the competent

representation of all parties.


(1) Notify opposing counsel in a timely fashion of any cancelled appearance;



APPENDIX E

(2) Grant reasonable requests for extensions or scheduling changes; and,

(3) Consult with opposing counsel in the scheduling of appearances, meetings,

and depositions.

(b) To treat opposing counsel in a manner consistent with his or her professional

obligations and consistent with the dignity of the search for justice.


(1) Not serve motions or pleadings in such a manner or at such a time as to

preclude opportunity for a competent response;

(2) Be courteous and civil in all communications;

(3) Respond promptly to all requests by opposing counsel;

(4) Avoid rudeness and other acts of disrespect in all meetings including

depositions and negotiations;

(5) Prepare documents that accurately reflect the agreement of all parties; and,

(6) Clearly identify all changes made in documents submitted by opposing

counsel for review.

As to the courts, other tribunals, and to those who assist them, I will aspire:

(a) To represent my clients in a manner consistent with the proper functioning of a fair,

efficient, and humane system of justice.


(1) Avoid non-essential litigation and non-essential pleading in litigation;

(2) Explore the possibilities of settlement of all litigated matters;

(3) Seek non-coerced agreement between the parties on procedural and

discovery matters;

(4) Avoid all delays not dictated by a competent presentation of a client’s

claims;

(5) Prevent misuses of court time by verifying the availability of key

participants for scheduled appearances before the court and by being

punctual; and,

(6) Advise clients about the obligations of civility, courtesy, fairness,

cooperation, and other proper behavior expected of those who use our

systems of justice.

(b) To model for others the respect due to our courts.

As a professional I should:

(1) Act with complete honesty;

(2) Know court rules and procedures;



APPENDIX E

(3) Give appropriate deference to court rulings;

(4) Avoid undue familiarity with members of the judiciary;

(5) Avoid unfounded, unsubstantiated, or unjustified public criticism of

members of the judiciary;

(6) Show respect by attire and demeanor;

(7) Assist the judiciary in determining the applicable law; and,

(8) Seek to understand the judiciary’s obligations of informed and impartial

decision-making.

As to my colleagues in the practice of law, I will aspire:

(a) To recognize and to develop our interdependence;

(b) To respect the needs of others, especially the need to develop as a whole person;

and,

(c) To assist my colleagues become better people in the practice of law and to accept

their assistance offered to me.

As to our profession, I will aspire:

(a) To improve the practice of law.


(1) Assist in continuing legal education efforts;

(2) Assist in organized bar activities; and,

(3) Assist law schools in the education of our future lawyers.

(b) To protect the public from incompetent or other wrongful lawyering.


(1) Assist in bar admissions activities;

(2) Report violations of ethical regulations by fellow lawyers; and,

(3) Assist in the enforcement of the legal and ethical standards imposed upon

all lawyers.

As to the public and our systems of justice, I will aspire:

(a) To counsel clients about the moral and social consequences of their conduct.

(b) To consider the effect of my conduct on the image of our systems of justice

including the social effect of advertising methods.



APPENDIX E

As a professional, I should ensure that any advertisement of my services:

(1) is consistent with the dignity of the justice system and a learned profession;

(2) provides a beneficial service to the public by providing accurate information

about the availability of legal services;

(3) educates the public about the law and legal system;

(4) provides completely honest and straightforward information about my

qualifications, fees, and costs; and,

(5) does not imply that clients’ legal needs can be met only through aggressive

tactics.

(c) To provide the pro bono representation that is necessary to make our system of

justice available to all.

(d) To support organizations that provide pro bono representation to indigent clients.

(e) To improve our laws and legal system by, for example:

(1) Serving as a public official;

(2) Assisting in the education of the public concerning our laws and legal

system;

(3) Commenting publicly upon our laws; and,

(4) Using other appropriate methods of effecting positive change in our laws

and legal system.



4:00 ADJOURN

Appendix

APPENDIX

Ms. Carol V. Clark Member 2019

Mr. Harold T. Daniel, Jr. Member 2019

Ms. Laverne Lewis Gaskins Member 2021

Ms. Allegra J. Lawrence Member 2019

Mr. C. James McCallar, Jr. Member 2021

Mrs. Jennifer Campbell Mock Member 2020

Mr. Brian DeVoe Rogers Member 2019

Mr. Kenneth L. Shigley Member 2020

Mr. A. James Elliott Emory University 2019

Mr. Buddy M. Mears John Marshall 2019

Daisy Hurst Floyd Mercer University 2019

Mr. Cassady Vaughn Brewer Georgia State University 2019

Ms. Carol Ellis Morgan University of Georgia 2019

Hon. John J. Ellington Liaison 2019

Mr. Jeffrey Reese Davis Staff Liaison 2019

ICLE BOARD

Name Position Term Expires

Member 2019

Member 2019

Member 2018

Member 2019

Member 2018

Member 2020

Member 2018

Member 2020

2019

2019

2019

2019

2018

Carol V. Clark

Harold T. Daniel, Jr.

Laverne Lewis Gaskins

Allegra J. Lawrence

C. James McCallar, Jr.

Jennifer Campbell Mock

Patrick T. O'Connor

Kenneth L. Shigley

A. James Elliott

Buddy M. Mears

Dean Daisy Hurst Floyd

Carol Ellis Morgan

Hon. Harold David Melton

Jeffrey Reese Davis

Tangela Sarita King

2018

Appendix1 of 2

Emory University

John Marshall

Mercer University

University of Georgia

Liaison

Staff Liaison

Staff Liaison 2018

Cassady Vaughn Brewer Member 2019

Appendix2 of 2

GEORGIA MANDATORY CLE FACT SHEET

Every “active” attorney in Georgia must attend 12 “approved” CLE hours of instruction annually, with one of the CLE hours being in the area of legal ethics and one of the CLE hours being in the area of professionalism. Furthermore, any attorney who appears as sole or lead counsel in the Superior or State Courts of Georgia in any contested civil case or in the trial of a criminal case in 1990 or in any subsequent calendar year, must complete for such year a minimum of three hours of continuing legal education activity in the area of trial practice. These trial practice hours are included in, and not in addition to, the 12 hour requirement. ICLE is an “accredited” provider of “approved” CLE instruction.

Excess creditable CLE hours (i.e., over 12) earned in one CY may be carried over into the next succeeding CY. Excess ethics and professionalism credits may be carried over for two years. Excess trial practice hours may be carried over for one year.

A portion of your ICLE name tag is your ATTENDANCE CONFIRMATION which indicates the program name, date, amount paid, CLE hours (including ethics, professionalism and trial practice, if any) and should be retained for your personal CLE and tax records. DO NOT SEND THIS CARD TO THE COMMISSION!

ICLE will electronically transmit computerized CLE attendance records directly into the Offi cial State Bar Membership computer records for recording on the attendee’s Bar record. Attendees at ICLE programs need do nothing more as their attendance will be recorded in their Bar record.

Should you need CLE credit in a state other than Georgia, please inquire as to the procedure at the registration desk. ICLE does not guarantee credit in any state other than Georgia.

If you have any questions concerning attendance credit at ICLE seminars, please call: 678-529-6688


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