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Medical Marijuana in Workers' Compensation

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Medical Marijuana in Workers' Compensation Swift Currie’s Got Talent September 30, 2016 Cobb Energy Performing Arts Centre Based on more than 50 years of representing clients in Georgia, Alabama and throughout the country, Swift, Currie, McGhee & Hiers, LLP, has evolved into a law firm capable of handling all areas of civil law and litigation. With over 100 attorneys, Swift Currie possesses the resources and abilities to tackle the most complex legal prob- lems, while at the same time providing our clients with individualized, prompt and cost-effective service. Our law firm has a wealth of experience across numerous practice areas, and our depth of legal talent allows us to tailor such strengths to individual cases. Our firm’s philosophy is to provide our clients with creative, aggressive and professional representation of their interests. We also strive to conduct ourselves in a manner consistent with the legacy of our four founding partners. No matter the issue in dispute, Swift Currie has attorneys ready to assist you. We believe we have a well-deserved reputation for high-quality legal services and dedicated attorneys. Finding creative solutions to complex problems – that is our commitment to our clients. Swift, Currie, McGhee & Hiers, LLP, does not intend the following to constitute legal advice or opinion applicable to any particular factual or legal issue. If you have a specific legal question, please contact the authors listed in this presentation. www.swiftcurrie.com Swift Currie’s Got Talent Seminar Agenda Friday, September 30, 2016 m9:30 a – 9:40 am Welcome and Introduction R. Briggs Peery m9:40 a – 10:00 am We’ve Got Work: Navigating the WC-240 Process S. Elizabeth Wilson 10:00m a – 10:20 am Medical Case Management and Board Rule 200.2: Now a Stronger Arrow in the Quiver K. Mark Webb 10:20m a – 10:40 am You May Have Talent but You Also Need to Know the Law — 2016 Case Law and Legislative Updates Marc E. Sirotkin and Mark E. Irby 10:40m a – 10:55 am Break 10:55m a – 11:15 am “You’re Fired” — How a Termination Can Affect a Workers’ Compensation Claim Preston D. Holloway 11:15m a – 11:35 am A Budding Star: Medical Marijuana in Workers’ Compensation Richard A. Phillips 11:35m a – 12:00 pm Does Out of Sight Mean Out of Mind? The Effects a Claimant’s Move Can Have on a Compensable Claim M. Ann McElroy 12:00m p – 1:00 pm Complimentary Lunch 1:00 pm – 2:15 pm Legal Triage 2:15m p – 2:30 pm Break 2:30m p – 2:55 pm Claimant’s Got Talent — The Recorded Statement and the Art of Storytelling W. Bradley Holcombe 2:55m p – 3:20 pm Now You See Me, Now You Don’t: Workers’ Compensation Issues with Remote Employees Amanda M. Conley 3:20m p – 3:30 pm Seminar Wrap Up/Door Prizes Swift Currie’s Got Talent 4 Swift Currie’s Got Talent Table of Contents We’ve Got Work: Navigating the WC-240 Process . 3 By S. Elizabeth Wilson Medical Case Management and Board Rule 200.2: Now a Stronger Arrow in the Quiver . 9 By K. Mark Webb and Jonathan G. Wilson You May Have Talent but You Also Need to Know the Law — 2016 Case Law and Legislative Updates . 15 By Marc E. Sirotkin and Mark E. Irby “You’re Fired” — How a Termination Can Affect a Workers’ Compensation Claim . 25 By Preston D. Holloway A Budding Star: Medical Marijuana in Workers’ Compensation . 31 By Richard A. Phillips Does Out of Sight Mean Out of Mind? The Effects a Claimant’s Move Can Have on a Compensable Claim . 39 By M. Ann McElroy Claimant’s Got Talent — The Recorded Statement and the Art of Storytelling . 47 By W. Bradley Holcombe Now You See Me, Now You Don’t: Workers’ Compensation Issues with Remote Employees . 53 By Amanda M. Conley Attorney Biographies . 57 Attorney Contact Information . 77 Swift Currie’s Got Talent 6 Swift Currie’s Got Talent We’ve Got Work: Navigating the WC-240 Process By S. Elizabeth Wilson 1 Swift Currie’s Got Talent S. Elizabeth Wilson Partner S. Elizabeth (Beth) Wilson practices primarily in the area of workers’ compensation defense. Prior to joining the firm, Ms. Wilson practiced workers’ compensation defense with another Atlanta firm and served as staff counsel for an insurance company. Ms. Wilson has written numerous papers and presented at various seminars on a wide array of topics, ranging from common defenses to Medicare Set Asides. Ms. Wilson frequently presents to employer and insurers throughout the Southeast on workers’ compensation defense strategies. Ms. Wilson received her B.A. in History from the University of Kentucky and her J.D. from Cumberland School of Law. Ms. Wilson is a member of the State Bar of Georgia and the Workers’ Compensation Section of the State Bar and is active with Kids’ Chance. Kids’ Chance is a nonprofit corporation which provides scholarships for children of permanently or catastrophically injured or deceased workers. She is a current member on the committee that organizes an annual fundraiser for Kids’ Chance. Ms. Wilson was named a Georgia Super Lawyer Rising Star by Atlanta Magazine 2010-2013. 2 Swift Currie’s Got Talent We’ve Got Work: Navigating the WC-240 Process To successfully return an injured worker to suitable employment, there are many avenues the employer/insurer can pursue. To help explain the process and ensure strict compliance with the legislative intent of O.C.G.A § 34-9-240, this paper will provide a comprehensive overview of the return to work process and the pitfalls to avoid to mitigate exposure. Successfully using O.C.G.A. § 34-9-240 and Board Rule 240 can make the difference between a continuing obligation to pay a claimant who is capable of working and severing future income benefits. FIRST STEP — LIGHT DUTY RELEASE When an employee is receiving temporary total disability (TTD) benefits and the authorized treating physician indicates the employee is capable of returning to work within certain restrictions, it is possible to offer the employee a suitable job and, potentially, suspend payment of benefits. O.C.G.A. § 34-9-240(a) states: 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. Thus, the employer can offer a suitable job which the employee must, in good faith, attempt to perform. Recently, the legislature clarified what was considered to be a “good faith attempt.” Effective July 1, 2013, O.C.G.A. § 34-9-240(b)(1) was amended to reflect that an employee must attempt the proffered job for at least eight cumulative hours or one scheduled workday, whichever is greater. This will be discussed in greater detail below. Availability of Light Duty Work If the employee’s authorized treating physician indicates, following a physical examination within the last 60 days, the employee is capable of performing light duty work, the next step is to start documenting the return to work process. This begins by establishing work is available for the employee that is suitable to the his/her restrictions. It is imperative the employer/insurer, along with counsel if involved, work closely to identify a job available for the employee. There are three possible ways to make work available. First, there may be a position already available which is less physically demanding than the employee’s work-related restrictions. For example, a “greeter” position in a large retail store may be available for a stockroom clerk whose torn rotator cuff temporarily precludes the ability to lift heavy objects. Second, there may be a position which can be easily modified to suit the employee’s work-related restrictions. An employee suffering from a neck condition, for example, may be offered a position logging delivery trucks on the third shift. Third, the employer may create a position on an “ad-hoc” basis specially suited to the employee’s work-related restrictions. Under Georgia law, there is no legal impediment to creating a position specially tailored to the employee’s restrictions.1 In other words, the position need not already exist for the offer to be legitimate. For example, an employee who suffers from a herniated disc and cannot stand or sit for more than 30 minutes may be offered a position sorting colored paper clips. The creativity that can be used is only limited by the employer’s ability and willingness to suffer through the decreased productivity. The position must remain available. In Universal Ceramics Inc. v. Watson, the Court of Appeals held “the [employee’s] refusal does not forever ban receipt of future compensation should the availability of suitable light work cease.”2 Similarly, the em- ployer in Coats & Clark, Inc. v. Thompson3 admitted that the job position offered was no longer available because the employee had refused same. As a result, the employee was entitled to recommencement of benefits beginning the date the employer closed out the position. 1 There may be legal implications of the American’s with Disabilities Act or Georgia Labor law. 2 177 Ga. App. 345, 339 S.E.2d 304 (1985). 3 166 Ga. App. 669, 305 S.E.2d 415 (1983). 3 Swift Currie’s Got Talent In Trent Tube v. Hurston,4 the employee initially refused to attempt the light duty position offered and his TTD benefits were terminated.
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