Georgia Law Blog

I would first like to thank my clients, the legal community, and others for your continued referrals. As I have written before, my Douglasville, Georgia law firm handles workers' compensation claims throughout the State of Georgia. While many of my clients live here in Douglas County, many live in Atlanta, Paulding County, Carroll County, Lithia Springs, Cobb County, Hiram, Dallas, and Carrollton. Thank you for your continued referrals.

The case of Coker v. Great American Insurance Company was decided by the Georgia Court of Appeals on February 19, 2008. The issue in this case was whether an injured worker who received workers' compensation benefits could sue her workers' compensation insurance company in a personal injury lawsuit due to the negligence of the workers' compensation insurance company’s to properly inspect a machine which ultimately severed nine of her ten fingers. The Court of Appeals held that the workers' compensation insurance company was immune from suit under OCGA 34-9-11(a) since it provided workers' compensation benefits to the plaintiff’s employer through one of its wholly owned subsidiaries. In this case, there were two insurance companies involved. First, there was the insurance company that allegedly performed the negligent inspection of the machine. Second, there was the other insurance company that actually insured the employer. In this case, the company that insured the employer was a wholly owned subsidiary of the insurance company that performed the inspection. The inspection allegedly took place as part of an audit.

Insurers in Georgia often conduct audits on the premises of their insureds in order to ensure compliance. It is my experience that workers' compensation insurance companies in Georgia are often involved in risk management with employers. While, certainly, the extent of involvement varies from company to company, I believe most companies have a vested interest in reducing injuries to workers, especially in manufacturing factory and construction industries which tend to have higher rates of injured workers.

This case presents negative implications to injured workers in Georgia for a few reasons. First, the snowball effect of continually limited injured worker’s rights to bring third-party lawsuits based on personal injury has grown over the past several years in Georgia. While, admittedly, this is an unusual case, it nevertheless could stand to limit injured worker’s rights in the future. Second, the Court of Appeals held in this case that the workers' compensation insurer is considered to be an alter ego of the actual employer for purposes of immunity. This may mean, in the future, that workers' compensation insurer's immunity from injured worker’s personal injury lawsuits could be extremely limited or non-existent.

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Posted In: Georgia Workers' Compensation Case Update

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I am endorsing Beau McClain for Douglas County Superior Court Judge. Beau is a friend and colleague. This is a sound decision in support of a good man. Beau is currently the Chief Assistant District Attorney for Douglas County. He is a career prosecutor. After graduating from Emory Law School in the early 1980's, he immediately began working as a prosecutor fighting crime in Georgia. Forgive me for editorializing, but I feel compelled to call it like I see it. We live in an era of politicized judicial appointments. I am certain that Beau McClain passed-up lucrative opportunities in ivory towers over the many years he has served the public in the Douglas County District Attorney's Office. He devoted his career to fighting crime and developing outstanding courtroom skills. He is smart, capable, and his integrity is beyond reproach.

I will tell you that I have had cases against Beau McClain in past years. In fact, we first met opposing each other in a case. Now, I stand proudly in support of Beau. In an era when the public views the media as its decision making compass, we hear a lot noise, spin, and conjecture. Beau's central campaign themes are commitment to justice, community, and family. The following observations are my personal observations, not things I have heard from others or read about somewhere. I can comfortably say Beau McClain lives his life in accordance with these things. He believes in justice. Make no mistake about it - - his history as a prosecutor for nearly 30 years speaks volumes to his commitment to the legal system and keeping all of us safe. Beau is also devoted to the community. Having started an organization called Faith in Action and spending much of his free time helping the poor, he has real world experience as a community activist. He is a devoted family man, having been married for over 27 years to his wife Heather. They have three boys.

Allow me to make a final observation. My mother told me to surround yourself with good people. Beau McClain is a positive influence on me and, I am certain, many others. In November, please consider voting for Beau McClain for Douglas County Superior Court.

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Posted In: Our Law Firm Serving Atlanta & All of Georgia

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On November 26, 2007, the Georgia Court of Appeals issued its decision in the case of L&S Construction v. Lopez. This somewhat short opinion involves the sole issue of whether attorneys' fees should have been awarded to the Claimant, pursuant to O.C.G.A. 34-9-108. The Court of Appeals referred to the dispute as one that was "closely contested on reasonable grounds" by the Employer/Insurer. Therefore, the Court found that attorneys' fees were inappropriate.

There is a more fundamental issue that helped guide the Court of Appeals to its decision. This case illustrates and further cements the any evidence standard of appeal in workers' compensation cases. Simply stated, the factual findings by the State Board of Workers' Compensation will not be disturbed if there is "any evidence" to substantiate the finding of fact.

This case presents negative implications for injured workers. The subject of attorneys' fees is, in my opinion, a hot button issue for attorneys representing injured workers in Georgia. Insurers sometimes controvert or deny valid workers' compensation claims. I will preface my comments by saying that if I feel the need to request a hearing, I often request attorneys' fees; however, I will have usually established strong evidence in my favor, including correspondence requesting the other side to act reasonably. While I believe that attorneys' fees should be sought and awarded in appropriate circumstances, I find that many attorneys on both sides seek attorneys' fees much too often. My theory is that some credibility is lost among members of the bar who request attorneys' fees in every contested case. All too often, attorneys cry wolf so it becomes hard to distinguish a legitimate claim for attorneys' fees from a bogus claim.

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I have been very busy lately. We are into the Holiday Season and there is much work to be done. I wanted to wish everybody a very Merry Christmas and Happy New Year. Car accidents increase this time of year, even in Douglas County, GA where the winters can be mild. We have been fortunate to receive many referrals this year. Please remember us if you, a friend, or loved one is hurt in an auto accident, truck wreck, or an on-the-job injury.

Here are some pictures of my office. You will note that my staff decorated my office with balloons for my birthday, which was yesterday. I also am putting up our new firm photograph.

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Posted In: Our Law Firm Serving Atlanta & All of Georgia

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My Firm Website & Blog

My Firm website is located at www.jackclay.com. I also maintain a website that discusses workers’ compensation and personal injury issues. While it is designed for clients and potential clients, I plan to add a section in the near future to help attorneys. It will include forms and other information. With a little bit of time and willingness to write, any attorney can start a blog. I have written extensively on my Blog. It is called the Georgia Law Blog (www.georgialawblog.com).

What’s on the Horizon

Quite honestly, I could use more advanced technology in my law practice. I am currently investigating the use of RAID drives which are basically several removable hard drives that mirror each other. They can be removed and taken home or put in a safe on a nightly basis. There is software used by law firms every day that will scan and OCR all of your documents. I find the OCR technology to be fascinating. OCR stands for Optical Character Resolution. It gives you the ability to scan a document that was prepared by someone else and cut and paste the information into a usable program such as Microsoft Word or Word Perfect. While Adobe has a built-in OCR feature, it can be time consuming as each document has to be separately scanned. The OCR feature is very useful as I can scan an opposing attorney’s request for discovery and cut and paste my responses fairly quickly. I have also considered going to Windows Small Business Server 2003. However, I do not think I need it quite yet. I have also considered using a computerized dictation system such as Nuance’s Dragon NaturallySpeaking Version 9. I will be testing it in the near future. For me, I used Dragon NaturallySpeaking in the past but the error rate was too high.

I also make it a practice to help other lawyers with any technology needs they might have. If you have any questions, please do not hesitate to call me or e-mail.

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Posted In: Law Firm Technology

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Digital Dictation Works

A few years ago, I changed to a digital dictation system. Personally, my dictation goes in spurts. However, I am a firm believer that an attorney that dictates is much more efficient than an attorney that types or hand writes his or her own documents. It has taken me a long time to get comfortable with the idea of dictating complicated briefs and articles instead of writing them. I will tell you that I dictated this whole article. While I believe I may be a better writer if I type or hand-write my documents, I find I am a quicker and clearer writer when I use dictation. I use a hand-held dictation unit by Olympus. The model number is DS4000. Once again, it was an investment to purchase the hand-held dictation unit and transcription software for my staff. It has paid for itself many times over.

My hand-held dictation system will hold up to 100 different dictation files. Also, I have eliminated the use of tapes in my office. My dictation system has never (knock on wood) deleted a dictation file. More importantly, all I have to do is place my dictation unit into a cradle which is attached to my computer. Then, the project will appear on my employees’ computer screens to be transcribed. Another advantage to using electronic dictation is that it maintains a record of dictation you have done forever. I will often review the dictation I have done with a staff member. I can cue the dictation module to the exact place at which there is a mistake or if something needs to be added to the document.

Some of the other technological items that I use in my practice include USB thumb drives and a Dell projector. Thumb drives are useful in that they can be carried to and from court. Recently, I purchased an HP DV9000 series laptop. The laptop is fast and efficient. It has 2 GB’s of RAM, a fast processor, and 200 GB’s of hard drive space. I tend to keep my laptop computers for many years, so it is important for me to make an initial purchase of a laptop that has good specifications and that is easily upgradeable.

I decided to purchase a projector to view documents, pictures, and other evidence. It is a wonderful tool. I would recommend a projector with at least 2500 lumens. I have used my projector at trial and mediation on numerous occasions. If there is any natural light that cannot be eliminated where you are using your projector, you and others will appreciate having a bright projection to view.

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My Law Firm’s Hardware & Software

I prefer to use a simple networked computer system and digital dictation. Currently, I have a paralegal and legal assistant employed in my firm. Our system works well. We also use McAfee business anti-virus and internet firewall software. I have used several other systems in the past, including AVG. It is all a matter of what will work for you and your computer system. I have found that McAfee has some good features, especially in their business software line-up.

For tracking time and keeping costs, I use a software system called TimeSlips. Because I do not handle very many hourly cases, TimeSlips is mainly a system I use for tracking expenses on cases. At the end of the case, it is very nice to present the client with a professional and detailed costs ledger.

I also have a copy of the full version of Adobe that I use for editing, combining, and separating PDF documents. Although the Adobe program is somewhat expensive (retailing for about $400.00), I found it is very useful and gives me an edge in my paperless system. When I dealt with paper files, I had a habit of using a lot of “sticky” notes and flags for different documents. I found that Adobe allows me to do the same thing, just on my computer screen. Also, if I have to print the documents for court or a deposition, I can choose to either include my notes and flags or to print the documents without my annotations.

I use other software in my law practice as well to a lesser extent. For investigative purposes, I use a service from Lois Law which can be found at www.loislaw.com. I have also used Accurint in the past (www.accurint.com). These databases allow me to search and find individuals, particularly, defendants and witnesses that I need to track down in cases.

I have also evaluated a software system called CaseMap which is made by Lexis-Nexis. CaseMap forces you to view issues and cases in a categorical and organized fashion. Basically, if you have ten issues in a particular case, it enables you to merge facts, which can be drawn from countless sources, to each relevant issue. This is especially helpful on large cases. While I have not used CaseMap extensively, I try to accomplish the same thing using Amicus Attorney.

In Amicus, I have fields for writing notes regarding different topics for various cases. For example, my workers’ compensation custom fields are extensive and provide me a place where I can always look for a quick and useful synopsis of my case. I have a special note section for items that come up in workers’ compensation cases such as Average Weekly Wage, current medical treatment notes, past medical history of my clients, etc. For my personal injury cases (which are mostly auto accidents), I have sections for items such as past and future special damages, liens and subrogation issues, degree of disability resulting from the incident in question, lost wage information, litigation time frames, and discovery deadlines, etc.

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Case Management System: We use Amicus Attorney

After graduating from law school in 1999, I quickly realized that it can be very difficult to manage information on cases. In my opinion, Amicus Attorney is a wonderful case management system. I have had Amicus Attorney for a number of years. Several months ago I upgraded to the newest edition which is Version 7. While Version 7 requires a lot of computer “horsepower” to operate, it is an all inclusive case management system that can be used by attorneys and staff members with ease.

There are many advantages to using a case management system. For example, I can create letters and pleadings within a few short clicks of the mouse using Amicus Attorney and Microsoft Word. Also, I have linked each client’s paperless file to the Amicus Attorney system. If I click on the file in Amicus, it is very simple to pull up all the electronic scanned documents. One of the most important features of Amicus, in my opinion, is the built-in-ability to calendar your files. While I make it a practice to use a dual calendar system (maintaining one calendar in Amicus and a paper calendar), I have found that the Amicus system has been reliable. I also use the events feature in Amicus Attorney to calendar certain events such as preparing for court, giving deadlines to the staff for certain projects, and calendaring Statutes of Limitation. These events can be linked to each other and re-used in a few easy steps.

In the past, I have considered other case management systems. I have a current copy of Time Matters and Needles on hand. I have not transitioned to Time Matters or Needles for several reasons, although I have had extensive discussions and beta tested these programs. For my practice, Amicus Attorney works wonderfully and is easy for new employees to learn. While I believe Time Matters, in many ways, may be a more customizable management system, I found that it may be more difficult for people to grasp. Needles is also a wonderful case management system especially for personal injury lawyers. However, it is primarily designed for attorneys who handle injury cases and is also significantly more expensive.

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On September 13, 2007, the Georgia Court of Appeals issued its decision in the case of YKK (USA), Inc. et al. v. Patterson. This case involved two important issues. First, the Court of Appeals held that the injured worker did not prove, by a preponderance of the evidence, that she suffered an on the job injury in accordance with Georgia workers’ compensation law. Second, the Court of Appeals found that the Superior Court errored by remanding the case to the Administrative Law Judge instead of the State Board of Workers’ Compensation.

This case presents an interesting issue. In Georgia, there are several levels of appeal an injured worker or employer / insurer must go through before attempting to reach the Georgia Court of Appeals. In my opinion, there are too many levels of appeal. For example, in every appeal that reaches the Georgia Court of Appeals, there have already been two levels of appeal. First, one must appeal the decision of the Administrative Law Judge to the State Board of Workers’ Compensation. Second, the decision of the State Board of Workers’ Compensation can be appealed to the Superior Court of the county where the injury occurred. Only then can a party make application for discretionary appeal to the Court of Appeals. Thereafter, the Court of Appeals’ decision can attempt to be appealed to the Georgia Supreme Court. I often wonder if some of the red tape could be cut in order to streamline the appeals process, especially for injured workers.

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Posted In: Georgia Workers' Compensation Case Update

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On September 11, 2007, the Georgia Court of Appeals issued its decision in Paschall Truck Lines v. Kirkland. In this case, the injured worker was hurt in a truck accident when another commercial vehicle struck the vehicle he was driving. He collected filed a Georgia workers' compensation claim and a Kentucky workers' compensation claim. When the Georgia personal injury / truck accident claim settled for $100,000.00, the workers' comp. insurance company sought to recover money based on a purported lien.

This case is governed by O.C.G.A. 34-9-11.1(b) which states that for an insurer to successfully intervene and recuperate money paid to an injured worker in a third party personal injury case, the insurer must show that the injured worker was fully and completely compensated for economic and non-economic damages.

This case was a victory for the injured worker. Workers' compensation insurers in Georgia often try to get paid back from personal injury settlements or verdicts that injured employees bring against third-parties. In some states, the workers' compensation insurance company has strong rights of recovery. This is not the case in Georgia. I have been successful in my handling of similar cases in maximizing the recovery on behalf of my clients. Interestingly, some claimants' attorneys are especially loathe to repay a workers' compensation insurer because they feel the fruit of their efforts (i.e. compensation) should go to their clients and not the insurance company.

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Posted In: Georga Personal Injury Case Update , Georgia Workers' Compensation Case Update

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The Paperless Office

I am proud to say that I have successfully transitioned from a paper to a paperless office. While it would be a stretch to think we could eliminate paper altogether, I have found that the efficiency of a paperless office is tremendous. If you are considering going to a paperless office, I would make the following recommendations.

First, you need a fast, high-quality, and reliable scanning and copying unit. I decided to purchase a Cannon Imagine Runner 5000. This is a large scanning and copying unit that scans approximately 60 pages per minute. Although it only scans in black and white, I also purchased a smaller color flat-bed scanner for pictures and other demonstrative evidence.

Second, many attorneys have a mental block to having a paperless office. In my case, I had to struggle a good bit with transitioning from a paper to a paperless office. I will tell you most of the struggle was in my head. To me, viewing documents on a large computer screen is much quicker and efficient than shuffling through hundreds of pages of paper. It is especially useful to me as many of my serious injury cases contain thousands of pages of documents. Of course, it helps to have large monitors and dual monitors in some cases. I use a dual monitor set-up and I am considering having the staff transition to dual monitors. All of the monitors in my office are 19” or larger LCD flat panel screens. This is essential for operating efficiently in a paperless office.

Third, you have to implement a hardware and software system to accommodate your paperless office. The most important piece to this puzzle is having a set routine for the way documents are handled. When documents come to my office, whether they arrive in the mail, fax, or by hand-delivery, they are immediately scanned into the computer system. All documents are placed into a folder that is accessible on my database called Scanned Documents. From there, the documents are re-named and moved to the appropriate folder. For those of you who are scared of losing documents, this is a fear that you can overcome with some planning and precautions. While there are hundreds of different back-up systems that one could utilize, I use an onsite back-up system and offsite back-up system which I will describe later in this article.

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In my opinion, settling a personal injury case or workers' compensation case around the holidays at the end of the year should be avoided under some circumstances. It seems that in my line of practice, there is a historical rush to settle cases by the end of the year. Law firms like to start out the New Year fresh and clients want money for the holidays. However, I believe that insurance companies know this all to well.

Let me be clear. I have settled many cases during the holidays if the circumstances are right. However, I generally try to discourage clients from settling due to the financial pressures and expectations the holiday season bring. I would be remiss if I didn't point out that sometimes insurance companies are motivated to settle cases at the end of the year as they may want to clear out cases / start out fresh in the New Year or want to set reserves. I believe that some companies have put more money on the table to close-out cases. Of course, this can also happen for any number of other reasons.

Going into the upcoming holiday season, I would like to remind everyone that while settling cases may seem attractive before the end of the year, let's take a careful look at the circumstances and conduct a careful evaluation of the case before jumping in too quickly.

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Posted In: Car Accidents , Workers' Compensation Information

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Small Law Firm Office Technology

How software & hardware improves my Douglas County, Georgia, Personal Injury
& Workers’ Compensation Law Practice.

Why It Makes Sense

Technology makes sense in my law practice for a number of reasons. First and foremost, it makes me a more efficient lawyer. All of my practice is against insurance defense firms which are located in Atlanta, Georgia. These larger insurance defense firms usually have more resources at their disposal. Technology, in my opinion, is the great equalizer.

For example, using my case management software, Amicus Attorney, my case management software, I can create a letter or a pleading to an attorney in a few short clicks of my mouse. Most of the larger insurance defense firms have gone to a paperless system. I implemented a paperless office system a year or two ago. My paperless office system helps me compete with larger insurance defense firms by having information accessible to me instantly.

Second, I believe small law firms should rely heavily on technology as it offers the ability to service clients in a better fashion. When clients call, I can pull up their file with a few clicks of my mouse using my paperless system. In addition, I can contact a client quickly by telephone, email, or fax as their contact information is quickly accessible in my case management system.

I particularly enjoy reviewing documents with clients in my office. The days are gone when an attorney has to create paper copies and sit across from a client at a table reviewing the same document. Now, I use my projector to display documents on a screen which is large and easy to read. In fact, I went through several medical records with a client who suffered a very serious work related injury in my office just yesterday. We were able to discuss relevant information and review aspects of my client’s case in the comfort of my office without having to shuffle through hundreds of pages of paper. In addition, I printed some of the medical records for my client to have for her file at home. Clients enjoy this sort of presentation. It is very efficient and simple to print documents that are scanned into a computer system in my office.

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As I mentioned in a recent article, the concept of statutory employment has a long and somewhat misunderstood history even among lawyers. On July 7, 2007, the Court of Appeals decided Axxson Timber Company v. Wilson. This case involved whether a worker who suffered an on the job injury can maintain a workers’ compensation claim against a statutory employer under O.C.G.A. §34-9-8(d). In order for an injured worker to maintain a case under Georgia Workers’ Compensation Law in this instance, the law requires that the injury occur at a place that the statutory employer had undertaken to execute work and which was otherwise under the control and management of the statutory employer.

The problem with this case is the claimant was injured at a Mill in Florida. Accordingly, the court found that because the injury did not occur on Axxson Timber Company property or property that Axxson Timber Company controlled and the injured employee could not pursue a workers’ compensation case. In quoting the Court of Appeals, “…imposing a workers’ compensation liability on a shipper for an injury that occurred at a location over which it had no control would render the shipper and insurer, which was not the intent of the Georgia Workers’ Compensation Act”.

This case seems to limit the rights of injured workers to bring cases against statutory employers. Although the results in this case were defendant on its particular facts, a precedent has been set that limits the rights of injured workers. This is especially concerning in the context of cases involving truck drivers. If a truck driver is working for a shipper that does not have workers’ compensation insurance and suffers an injury at the point of destination, they may be unable to maintain a workers’ compensation claim against a statutory employer if such statutory did not own or manage the location where the injury took place. This case is even more troubling as White Trucking Company, the direct employer, did not have workers’ compensation insurance. Please remember if you are a truck driver or have a friend or family member that is a truck driver and has been injured in a workers’ compensation accident, please consult and attorney regarding your potential case. In many cases, even though the direct employer may not have workers’ compensation insurance coverage because they are a small company, there are other statutory employers against which you can file a workers’ compensation claim.

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Posted In: Georgia Workers' Compensation Case Update

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