Trial Attorney Blog

The Georgia Supreme Court issued a sharply divided ruling on Monday which is a great decision for employees who travel. The 4-3 decision turned on an interpretation of the “continuous employment” doctrine. The High Court upheld an award of workers’ compensation benefits to the 11 year old son of a man killed as a result of an automobile accident in Georgia. The employer had put the Florida resident up in an apartment in Fayetteville, Georgia while he was working as a construction superintendent here. The employer also provided him with a company truck that he was driving at the time of the accident. The employer and it’s workers insurer had denied the claim for death benefits on the ground that the employee was not acting in the course of his employment when the accident occurred. At the time of the accident, he was on sick leave and had been delivering family furniture to his storage shed in Alamo, Georgia.
Four of seven Justices on the Supreme Court of Georgia said that because King had returned to the general Fayetteville/Jackson area when he was killed in the motor vehicle accident, his minor son had a valid death claim.
The significance of this ruling is that it expands the “continuous employment” doctrine and makes it more likely that workers traveling away from home on business will be covered under their employers workers’ compensation insurance if they are injured.

Today we had the father of a young man in his early twenties come in to the office. His son was involved in an automobile accident and sustained serious injuries to his spine. It appears that he will be paralyzed for life from the waist down. The young man’s medical bills far exceed the liability insurance coverage, the hospital has filed a lien which will consume all of the available liability coverage and, to make matters worse, the young man has no health insurance.

Last month we got a call from a young man, an employee of a tree surgeon company, who fell from a tree. He was also sustained a serious spinal cord injury and was rendered a paraplegic. His employer had no workers’ compensation insurance and he had no health insurance.

Last year a young women who had been an employee of our firm 10 years ago, was involved in an automobile accident and sustained a permanent brain injury from which she will never recover. She had limited medical insurance to take care of her initial medical needs but nothing to take care of her long-term care. She is now being cared for, at home, by her husband and family.

Insurance companies continue to profit at the expense of their policyholders and Georgia’s serious automobile and truck injury victims. The Atlanta Journal-Constitution reported today that property and casualty insurers’ profits are continuing to sky rocket. Allstate Insurance Company reported a record $5 billion profit for 2006. State Farm Insurance’s profit climbed 65% for the year. St. Paul/Travelers earnings rose six fold in the fourth quarter and American International Groups rose eight fold.
There are several reasons for these huge profits. First, insurers are shorting the people who bought their products, their own policyholders. Second, they are shorting injury victims of automobile and truck accidents by refusing to negotiate settlements in good faith. CNN recently aired an investigative report in which it featured several people who had been involved in automobile collisions. A former insurance insider was interviewed who explained that two of the largest insurers routinely utilize “lowball” and delay tactics in handling smaller personal injury and property damage claims. Essentially, they offer injured people less than the actual amount of their medical damages and lost wages and then take a “so sue me” attitude toward the claims. The injured victim is forced to retain a personal injury lawyer and then incur fees and expenses to try to get full compensation.
The insurance industry has become very adept at using crisis of varying types to justify enormous rate increases. Whether they blame so called “frivolous lawsuits”, “runaway jury verdicts”, the “malpractice crisis” or hurricanes, any excuse will do to raise rates. The bottom line is they are increasing profits by pushing more and more risk and costs onto policyholders and refusing to timely negotiate and pay legitimate injury and property damage claims. State insurance commissioners and other regulators need to wake up. We need insurance reform, not ‘tort reform’.

There may be some relief in sight for some injured Georgia automobile and truck accident victims who are involved in a motor vehicle collision with an uninsured or underinsured vehicle. Last week Senate Bill 276, the Uninsured Motorist Stacking bill, passed the Senate Insurance and Labor committee unanimously. Advocates working for it’s passage are pushing hard for it to come to a floor vote. If passed it will provide uninsured motorist insurance coverage previously unavailable under Georgia’s current law.

Example: Current Law

You have purchased uninsured motorist insurance coverage of your own in the amount of $25,000.00 and you are injured in a motor vehicle collision with a motorist having $25,000.00 in liability coverage. A jury determines you should recover damages against the at fault motorist and returns a verdict for $35,000.00. Under current Georgia law you cannot collect any of the $25,000.00 of your uninsured motorist insurance coverage, that you paid for, even though your damages exceed the liability coverage of the at fault motorist.

Anyone who has driven the two-lane highway between Georgia and Panama City, Florida has seen the many crosses along the roadside, each representing a victim of a fatal automobile accident. Many of these fatal collisions involved college students and drunk drivers. These unofficial memorials or marker have usually been placed by family and friends.
A young victim killed in a drunk driving accident, seventeen year-old Donny Ray Harris Jr., will be the first drunken driving victim in the state of Georgia to be remembered with an official highway marker, erected under a state law the governor Sonny Purdue signed just 13 days before the fatal car crash. Georgia is among a growing number of states that give official status to landmarks of fatal drunk driving accidents. The markers will be put up for five years and will read “In Memory Of,” followed by the accident victim’s name and “DUI Victim.”

In Georgia employees who become disabled, due to injury, and remain out of work for any significant period of time are likely to be sent for a functional capacity evaluation. An FCE is a systematic evaluation process to determine an individual’s tolerance for physical work activities. These evaluations take on many forms. The most common evaluations involve a series of standardized tasks with measured weights and distances, and a trained and presumably an experienced observer to administer the tests. Other methods involve the use of machines to measure peak performance and range of motion. The results of these evaluations are frequently used to direct treatment and rehabilitation efforts, and in legal proceedings, to determine work capacity and eligibility for indemnity benefits.
Physicians, employers, insurers, and claims adjusters often rely upon functional capacity evaluations to determine musculoskeletal capacity to perform physical work, often with legal or occupational consequences. Despite their widespread use in Georgia, a number of scientific, legal and practical concerns persist. FCE’s are based upon a theoretical model of comparing job demands to worker capabilities. The validity of FCE results is best with accurate job simulation and detailed, intensive, assessments of specific work activities. Many times the person performing this evaluation does not know or understand an injured worker’s job. When test criteria are unrelated to an injured employee’s actual job performance, or subjective evaluation criteria are employed, the validity of results is questionable. Many times, the person administering the evaluation makes comments in the final written report about whether or not the worker has put forth maximum effort, even inferring malingering on occasion. The evaluation of sincerity of effort, ability to perform complex or variable jobs, and prediction of injury based on FCE data is problematic and in our opinion subjective and unreliable.
An injured worker who is asked to undergo an FCE should retain counsel to represent them in a workers compensation case. Lawyers should scrutinize both the methodology of the evaluation and the qualifications of the person administering the evaluation. In some cases, the FCE results may be inadmissible under Daubert v. Merrell, 509 U.S. 579 (1993)

We continue here with our previous discussion about how experienced trial counsel prepares and delivers closing arguments before juries in serious injury cases. See prior entries of 3/13 and 3/15/07. We continue as follows:

You must close your summation with confidence and with an ending appropriate to the tone of the case that will have the desired impact. Once you have concluded, sit down with an air of confidence that you have clearly won your case.

In every winning summation there is both the logical and rational aspect of the presentation. Where the facts are placed in perspective by counsel, the jury is furnished with ammunition to advocate your side of the case in the jury room. But there is also the emotional side. Counsel must convince the juries in the justness of his client’s cause and want them to believe that when they return a verdict in favor of the plaintiff that they will be promoting the ends of justice. Through a sincere, honest and forthright approach to the case, counsel can best appeal to the jury’s emotional sense of right and wrong at the conclusion of his or her remarks. Obviously, a tone has to be set throughout the closing argument which is consistent with the facts of the case. When counsel concludes his remarks, however, it is necessary that the jury viscerally feel that the plaintiff is entitled to a verdict and that it would be right to return a verdict in favor of the plaintiff. Thus, the structure of a closing argument, while inherently logical, must allow for an appropriate expression of emotion consistent with the facts in dispute.

Many times we represent clients’ who have been seriously injured in automobile, trucking or on-the-job accidents who have sought and received psychological or psychiatric counseling and treatment. During the course of litigation, insurance company lawyers often try to subpoena mental health records from mental health professionals. It is wise to be vigilant in monitoring these requests from insurance defense lawyers and to object to these requests.
Under Georgia law, “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . .” (Emphasis supplied) O.C.G.A. § 9-11-26(b)(1). Psychiatric records are not absolutely privileged. See Donalson v. State, 192 Ga. App. 37, 38 (2), 383 S.E. 2d 588 (1989). However, communications between a psychiatrist and patient are absolutely privileged and that privilege must be waived as a pre-condition of discovery. O.C.G.A. § 24-9-21(5); Freeman v. State, 196 Ga. App. 343, 396 S.E. 2d 69 (1990). The purpose of the psychiatrist-patient privilege is to encourage the patient to talk freely without fear of disclosure and embarrassment, thus enabling the psychiatrist to render effective treatment of the patient’s emotional or mental disorders. O.C.G.A. § 24-9-21 (5).
Pursuant to O.C.G.A. § 24-9-40, the psychiatrist-patient privilege may not be deemed waived simply because the patient’s “care and treatment or nature and extent of his injuries [have been put] at issue in any civil or criminal proceeding.” See Wilson v. Bonner, 166 Ga. App. 9, 16 (5), 303 S.E. 2d 134 (1983). In other words, the psychiatrist/patient privilege is not waived when an injured person, who claims it, is seeking to recover damages for injuries of a mental or emotional basis. Accordingly, if you are physically injured in an accident and you seek damages for your mental pain and suffering, you do not waive the psychiatrist-patient privilege and the insurance company is not entitled to anything that is privileged.

.We continue in this artice our Previous blog and presentation on the delivery of effective Closing Arguments in jury trials.(See entry of 3/13/07). We continue as follows:

GIVE YOUR REMARKS A STRUCTURE

As discussed above, one should not rely upon the inspiration of the moment to deliver a closing argument. A winning summation is usually the result of meticulous, painstaking preparation done well in advance of the actual delivery of the remarks. In order to insure that such preparation is not wasted, obviously, it is necessary that counsel utilize a structure in preparing his/her outline of the legal and factual issues counsel wishes to discuss with the jury.

We cannot tell people how many times unrepresented, injured workers sabotage their cases by failing to comply with their own obligations under the Georgia Workers’ Compensation Act. At a minimum an employee who sustains an on-the-job injury must do the following:

1. Report any on-the-job injury within 30 days of the date of the injury. Although the law provides that an employee should notify the employer within 30 days, any injury should be reported immediately. If you do not report your injury immediately, you may afford the employer and insurance company a defense that they would not otherwise have.

2. Determine on your own whether the employer has the required panel list of authorized physicians posted.