Georgia Law Blog

This week alone, I am working on two responses to insurance company lawyers' Motions for Summary Judgment. I have been asked to explain what this means. Well, it could be named something simpler such as, "Request To The Judge To Decide This Whole Mess Without A Trial." It's really that simple in theory.

Of course, there is the legal world where even the most elementary of disputes can become complicated in a hurry. Most of the time, somebody being sued files a Motion for Summary Judgment to end the lawsuit, narrow the issues, or get rid of some of the plaintiff's legal theories. However, I have filed them as a plaintiff's attorney to try to win my whole case or at least parts of the case.

The standard for granting a Motion for Summary Judgment is found, under Georgia law, at O.C.G.A. 9-11-56(c). It states, "... the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law."

I tell people that a good way to look at this issue is like this. If the facts are not in dispute and agreed for the most part, the judge can decide things. After all, juries are meant to be deciders of face, not legal experts. The problem is that in most cases there is an issue of fact. Some examples of questions of fact in car & truck accident cases include the following:

- Who caused the car accident?
- If there were numerous parties, who bears fault by percentage?
- Were your injuries caused by the auto accident?
- How much should be awarded for medical bills? Are they all a result of the wreck?
- How much pain and suffering am I entitled to receive?
- How much should be awarded for lost wages?
- How much was my car worth when it was totaled?

If you have questions about the legal process and have been injured in an auto accident, on the job, or suffered another type of personal injury, you can contact our office anytime for a free confidential consultation about your rights. Our telephone number is (770) 577-2227.

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Posted In: Litigation, Hearings, & Trials

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Yesterday, I had to file a new car accident injury case at the Paulding County Courthouse. I was fortunate enough to visit the new courthouse the very first day that it opened. I took an extra 15 minutes to check out the new courthouse. It is quite a sight. I visited the court rooms as well as the administrative building which is adjacent to the courthouse. The new courthouse is located on Highway 278 west of Chattahoochee Technical College. I suspect that I will be spending a lot of time at the Paulding County Courthouse in the upcoming years as I handle many personal injury claims in Paulding County, Georgia. It is also interesting to note that Paulding County has been one of the fastest-growing counties in the United States. The population now is just over 130,000 people. Below, see some pictures I took during my visit.

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Posted In: Douglasville & Douglas County Local Info.

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I just returned from court in a case in which we are seeking punitive damages. I get asked to explain the concept of punitive damages quite a bit. I will spare you the legal technicalities and provide a very general overview. Remember, please consult with a lawyer if you have further questions specific to your case.

First, punitive damages do not apply to Georgia's workers' compensation cases. Since that issue is off the table, let's focus on cases in which folks have been hurt and are filing civil lawsuits. Punitive damages can be recoverable in a personal injury case in certain circumstances. Simply stated, punitive damages are meant to punish a wrongdoer for very bad conduct or an intentional act. Punitive damages are not meant to reward you when you are injured - - they are meant to punish the person who harmed you. I tell people up front that they are often sought yet seldom gotten. In other words, you must have some pretty bad conduct with the law on your side.

Specifically, the law in Georgia says that you must prove, by clear and convincing evidence, that the defendant's conduct showed willful misconduct, malice, fraud, wantonness, oppression, or an entire want of care which would raise the presumption of conscious indifference to consequences, O.C.G.A. 51-12-5.1 This can mean many things to people. The trial structure is also changed if you seek punitive damages. One of the better books on the subject of Georgia Damages is called Georgia Law of Damages.

The question of whether you or a loved one have a case for punitive damages can only be answered after a thorough review of the facts and the law. If you are wondering if you can possibly get them after you were injured in an auto collision or other accident, you can call my office for a free confidential consultation. Punitive damages in personal injury cases can arise if there were factors involved such as alcohol, a drunk driver or driver on drugs, intentional conduct, a hit-and-run, etc. You can learn more about me and my office by clicking HERE.

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Posted In: Car Accidents

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Question: Why won't the workers comp insurance company or my job pay for my doctor and medical treatment when I got hurt at work? What you can you do?

I was asked this very question this week. The answer is simple. In Georgia, if an employer/insurer controverts or denies your workers' compensation claim, they have no obligation to pay for any medical treatment if and until you either (a) come to an agreement whereby your case is deemed compensable and/or a doctor is agreed-upon to treat you; (b) your employer and insurance company voluntarily "pick-up" your claim and offer you medical treatment; or (c) I take your case to court before an Administrative Law Judge of the State Board of Workers' Compensation and win.

One legal method that I employ that I do not see used very often is to request that the judge appoint a certain doctor for a one time evaluation at the expense of the employer and insurance company. This is done under O.C.G.A. 34-9-101. I am surprised at how many lawyers representing injured workers do not know about this Section or utilize it.

Of course, I also tell my clients that their company and the insurer will certainly be happy to send them to medical evaluations in the form of Independent Medical Evaluations. (Please understand, however, that these doctors are not generally treating you and making you better. They are simply evaluating you and providing a report to give to the judge when you go to court).

I help injured workers across the State of Georgia, but mainly in the Atlanta and the West Georgia area (Douglas County, Paulding County, Carroll County, and Cobb County). My office is in Douglasville. I will personally come to you if you cannot come to me if I think I can take your case after an initial free consultation on the telephone. Please call my office anytime at (770) 577-2227 or submit your question on this Blog. To read more about my law office and my qualifications, click here.

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Posted In: Workers' Compensation Medical Benefits

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Chapel Hill News & Views is a local magazine that features articles and business information about our community. Many people, including me, read it cover-to-cover as it has good insight, interesting articles, and valuable local event information. I believe the distribution has grown substantially over the past several years. Please see us in the magazine this month on Page 73.

If you or a loved one has been injured because of an auto accident or work accident in Douglas County, GA, or Atlanta and would like to talk with a lawyer who provide information and an honest assessment, please call us anytime.

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

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I have noticed that many of my clients have been laid-off from their jobs recently. Some of these clients have open workers compensation claims and return to their jobs doing light-duty work. I've been asked how the law affect the situations. under Georgia workers compensation law, a claimant can seek additional weekly benefit checks if they have returned to work light-duty, have been legitimately laid off, and search for work.

Under O.C.G.A. § 34-9-104, an injured worker can seek additional income benefits based upon a change in physical condition or a change in wage-earning capacity. When somebody is laid-off, the argument that they have undergone a change in their wage-earning capacity.

if you have been laid-off, and the workers compensation insurance company will not pay your weekly benefits, you should contact an attorney to evaluate your claim. Although it may take quite a long time for a court date or for a judge to decide this issue on a motion, income benefits can be pursued in many cases.

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Posted In: Workers' Compensation Income Benefits

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On January 20, 2009, the Georgia Court of Appeals decided the case of Williams v. ConAgra Poultry of Athens. This case involved the employee seeking catastrophic injury payments pursuant to O.C.G.A. § 34-9-261. This case involved the interplay of the two-year change in condition statute of limitations pertaining to additional income benefits and the catastrophic designation. The Court held that O.C.G.A. §34-9-104 (b) bar the claim for income benefits, even though the claim could be accepted as catastrophic from a medical and rehabilitation standpoint.

This case emphasizes the important point that attorneys seeking catastrophic designation should not, under current law, rely upon seeking catastrophic designation without requesting additional income benefits above and beyond what had been previously paid. In this case, it appears that more than two years elapsed between the time that weekly income benefits were last paid and the time a Notice of Claim was filed requesting catastrophic designation. It is also interesting to note in this case that the State Board of Workers Compensation apparently encouraged the injured worker to file a third application for catastrophic designation after her first two attempts failed. This case illustrates an important point that a catastrophic designation is a degree of separation from weekly income benefits and entitlements to such benefits. The counter argument in this case is that a catastrophic designation, by its nature, offers an injured worker weekly disability benefits for a long period of time into the future, sometimes for life.

If you or a loved one has questions about whether or not your workers compensation claim can be deemed catastrophic under Georgia law, please contact our office at 770-577-2227 for a free and confidential legal consultation. Mr. Clay has handled many catastrophic workers compensation claims throughout Georgia. We welcome your questions and concerns.

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Posted In: Georgia Workers' Compensation Case Update

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I heard an interesting comment today from one of the Georgia's top attorneys. Our discussion was about attorneys who treat the practice of law like a business instead of a profession. He made the remark that some lawyers get a new file and their first thought is what the amount of money that can be made in the least amount of time. WRONG! I am reminded daily that, like wine, cases can take a long time to properly develop. In fact, Orson Welles said famously, "We will sell no wine before its time." A print of this quotation hangs on a wall in my office to remind me and, occasionally, my clients of the virtue of patience.

When selecting an attorney, please keep in mind that any attorney can advertise on television, have a fancy yellow pages ad, have a professionally designed website, or provide you with information in the form of pamphlets or booklets. Don't judge a book by its cover. Look beyond the surface to see what you are really getting. If I were looking for an attorney, I would evaluate the following factors carefully:

(1) Testimonials from former clients and references - One of the marks of good attorneys are satisfied clients. Ask for references. You wold not hire somebody without references. Why put one of the most important decisions you will make in the hands of somebody who cannot or will not provide references? While it is true that the identity of clients is strictly confidential, our office makes it a practice to keep a list of client references. These are past clients from whom we have received specific permission to disclose their contact information for prospective clients to call.

(2) Legal and trial skills or the "when push comes to shove factor" - Make no mistake about it, insurance companies and their attorneys care about the caliber of lawyer on the other side. When cases do not settle, they will inevitably size-up your attorney from their past experience and reputation of the attorney involved. There are numerous traits that good lawyers across the board seem to possess. Unfortunately, it may be difficult or impossible for a client to tell whether an attorney is really good. The best attorneys I know:
- Have mastered the substantive area of law in question
- Possess the wisdom and common sense to properly evaluate circumstances, strengths, and weaknesses
- Are diligent and push their cases forward -- in other words, they act instead of being acted-upon
- Understand what works and what does not work with judges and juries
- Understand the Rules of Evidence and Civil Procedure which permeate all injury cases whether it is a car accident case, defective product matter, or workers' compensation claim
- Communicate effectively
- Have experience taking cases to trial with a track history of success

(3) Specialization - The days of the general practitioner are become more and more numbered. Potential clients who are seriously injured should pick an attorney who specialized in one or two areas of law. Lawyers simply cannot be all things to all people and excel. I recommend asking the prospective attorney to tell you what percentage of their practice is devoted to your specific type of case.

(4) Organizations and community - Any attorney can join legal organizations. Pick a leader in the legal profession and the community. Ask the prospective attorney what leadership roles they have held in the past or currently hold. In my opinion, this is an indication of dedication to a profession, not merely the business of law. Or, put another way, it is the difference between passion versus a paycheck. Some attorneys are more interested in staying in their offices to make as much money as possible instead of offering a meaningful contribution to the legal profession by being leaders in organizations. We receive many referrals from other lawyers. I advise prospective attorneys to not only ask for past client references, but also ask for references of other lawyers in the community who have referred injury cases to the attorney you are considering hiring.

(5) Caseload and confidence - The attorney you hire should maintain a reasonable caseload and spend enough time with you during the first appointment to get to know you and your case. Many attorneys will send non-lawyers to your home to gather information and sign paperwork. Never hire a lawyer without meeting with the attorney personally at his or her office. You should feel comfortable and confident in their ability. Part of being a good lawyer is a limited caseload so the proper time and attention can be devoted to your case. You should connect with your attorney. Remember, if your case goes does not settle and goes to trial, you absolutely want the jury to connect with your attorney.

ABOUT US

In 2009, Jack Clay was selected as a Rising Star in Georgia's SuperLawyers Magazine. Mr. Clay is an experienced trial lawyer practicing in workers' compensation and personal injury law. He has tried over 50 workers' compensation hearings and 30 jury trials. He is a board member of the Georgia Legal Foundation and a graduate of Leadership Douglas. He is the author of the Georgia Law Blog (www.georgialawblog.com) which covers legal issues throughout Georgia. He is a member of the Georgia Trial Lawyers Association and the Workers' Compensation & Torts/Insurance Law Sections of the State Bar of Georgia. While his office is in Douglasville, he handles cases throughout West Georgia and Metro Atlanta. His office offers free legal consultations to those who have been injured.

To read more about Mr. Clay and our law firm, click here.

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

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On February 11, 2009 the Georgia Court of Appeals decided the case of Harris v. Peach County Board of Commissioners. This case involved the basic theory about whether or not an injured worker's on-the-job injury arose out of the course of the employment and in the scope of the employment. The employee suffered a knee dislocation. The administrative law judge and the Georgia State Board of Workers' Compensation upheld that the employee’s case was compensable. However, the Superior Court overturned the case. The whole case depended on whether or not the employee was performing one of her job duties at the time of the accident as she was bending over to pick up her diuretic pill from the floor when she hurt her knee. The Court discussed the fact that it was part of her job duties as a custodian to remove debris from the floor. In addition, she is expected to remove things from the floor, even her own pills. Therefore, the Georgia Court of Appeals overturned the decision of the Superior Court and awarded the injured worker workers’ compensation benefits.

The Court of Appeals in this case held that the Georgia State Board of Workers' Compensation was able to find that the claimant's knee dislocation arose out of her employment. This is probably a good case for injured workers as it expands, to a small degree, circumstances under which they may collect compensation benefits. The big problem in this case was that the claimant dropped one of her own pills prescribed her by a physician and was injured while picking it up off the floor. Apparently, the result may have been different if the employee had not been a janitor (i.e. she would've not been required to pick up the pill). I believe this case falls into such a small category of cases that may not have wide impact on Georgia's workers compensation law.

If you or a loved one has been hurt at work, contact my Douglas County, Georgia law office for a free, no-obligation legal consultation.

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Posted In: Georgia Workers' Compensation Case Update

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Pardon me while I step-up on my soapbox for a moment...

I must commend the Administrative Law Judges of Georgia's State Board of Workers' Compensation cases for their willingness to resolve disputes, sometimes at the drop of a hat. I have called-upon several ALJ's in the past to give rulings on matters during depositions. I try my best to be prudent when doing so as to not tarnish my reputation or become a tattle tale. Today was another fine example of this very thing. During a deposition, the attorney for the insurance company and I had a disagreement over questions that were being asked of my client. I simply refused to allow my client to answer certain questions. We were able to call a workers' compensation judge in Atlanta on the telephone and get a ruling about the appropriateness of the questions being asked quickly. Whether I am right or wrong in the judge's eyes, getting a decision quickly to evaluate my position and act accordingly is a good thing. I have found that many of the workers' compensation judges with whom we deal on a day-to-day basis are very approachable and willing to resolve issues quickly to keep their cases moving along. There is something to be said for a judge that will pick-up the phone and take a phone call from lawyers to resolve a dispute. I know a few Superior Court judges who will pick-up the phone to receive calls of this nature or make calls in order to get clarification or move cases along. I would like to see this type of quick problem solving used across the board. It is a good practice.

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Posted In: Workers' Compensation Information

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Georgia Highlands College, a two-year college currently located in Rome, Georgia, is scheduled to open a campus in Douglasville. Although the location has not been announced, it is estimated that 1500 students will attend the school which may open up as soon as August of 2009. This is exciting news for those of us who live and work in Douglasville, especially with the current economic troubles faced by residents in our area. It is also a blessing because many out of work people are going back to school to further their education in order to have the necessary skills to be ready when the job market picks up again. It is also interesting to note that a study commissioned years ago by the University System of Georgia identified Douglas County, GA as an underserved area for secondary education. Currently, the population of Douglas County, GA is approximately 130,000.

Jack Clay handles work comp cases and serious injury cases in Douglasville, GA. Our law firm offers free, no-obligation consultations for those who have been hurt on the job or in a car accident or truck wreck.

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Posted In: Douglasville & Douglas County Local Info.

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On February 13, 2009 the Georgia Court of Appeals decided the case of Creeden v. Fuentes. In this case, a construction worker was injured while working on a house. The injured worker fell down an elevator shaft. The Court of Appeals held that the exclusive remedy provision of Georgia's Workers' Compensation Act at O.C.G.A. §34-9-11 bars the plaintiffs claim. In addition, the Court held that O.C.G.A. § 34-9-8 applies in this case as well, which regulates claims against contractors in personal injury. This Section reads as follows:

(a) ...a principal, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of his subcontractors engaged upon the subject matter of the contract to the same extent as the intermediate employer...(d) this Code section shall apply only in cases where the injury occurred on, in, or about the premises on which the principal contractor has undertaken to execute work on which are otherwise under his control or management.

This case held that even though the contractor was working on the house at the behest of the future homeowner, the fact remains, the contractor still owned the property. Despite the fact that the contractor was working on behalf of the homeowner, the contractor still came under the protection of the exclusive remedy doctrine codified at O.C.G.A. § 34-9-11.

This case presents negative implications for injured workers in Georgia, who attempt to bring personal injury lawsuits based upon serious injuries. Many workers are hurt and construction accidents across the state. Sometimes, it is difficult to figure out who the correct employer is in a contractor/subcontractor setting. More importantly, the law protects certain individuals and companies from personal injury lawsuits when workers are injured on the job. Many times, there are simply no third parties to sue, while other times there are several parties that fall outside of the scope of the exclusive remedy doctrine. Another interesting issue in this case is the interplay between two statutes, specifically O.C.G.A. § 34-9-11 & 34-9-8.

If you or a loved one has been injured on a construction accident site or in another setting in which there are contractors and subcontractors, please feel free to contact our office to discuss your rights. Please understand that this area of law is complicated and ever-changing. Jack Clay, Esq. has handled workers compensation and jobsite accidents throughout the state of Georgia. He is a trial lawyer, located in Douglasville, Georgia. In 2009, he was featured in Super Lawyers Magazine as a Rising Star.

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Posted In: Georgia Workers' Compensation Case Update

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Douglasville injury attorney Jack Clay has been listed in Georgia's SuperLawyers Magazine. Mr. Clay was named a Rising Star in the annual publication that is sent to attorneys across the state. Only the top 2.5% of lawyers under 40 years of age are named SuperLawyers Rising Stars after a rigorous nomination and selection process. Mr. Clay exclusively handles serious injury and wrongful death cases, including motor vehicle accident cases, workers’ compensation claims, and other catastrophic personal injury matters.

Mr. Clay handles injury cases throughout West Georgia and the Atlanta area. If you or a friend need a legal consultation, please do not hesitate to contact our office anytime.

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

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On February 19, 2009 the Georgia Court of Appeals decided the case of Laurens County Board of Education v. Dewberry. This case involves the issue of whether an employee’s inability to work resulted from his original injury or a change in the condition. The injured worker, a custodian, suffered a knee injury on August 1, 2000. His medical bills were paid by the workers’ compensation insurance company but no weekly income benefits were ever paid. After the custodian returned to work, he sought no medical treatment for his knee pain. At this point, an orthopedic surgeon recommended knee replacement surgery, a very serious procedure. On November 18, 2005, which was over five years after the original date of accident, the worker was unable to work any longer due to knee pain and filed a workers’ compensation claim.

This case involved a dispute between two insurance companies. The first insurance company argued that the employee experienced a fictional new accident on or about November 18, 2005. The second insurance company argued that the employee, instead, experienced a change in condition for the worse under O.C.G.A. 34-9-104. The Court of Appeals held that whether an employee undergoes a change in condition for the worse or a fictional new accident is a question of fact for the administrative law judge. In this case, the administrative law judge evaluated all the facts in question and determined that the employee suffered a fictional new accident on November 18, 2005.

Often, the company will change workers’ compensation insurance companies while claims are pending. Injured workers still working on the job may become reinjured or, as in this case, suffer a fictional new accident. It is under these circumstances that insurance companies often fight. In the legal world, we refer to these fights as “two insurer battles.” Though it may not be apparent, this case was simply about two insurance companies fighting about which would be responsible for the injury. However, there is a deeper level of analysis as well. The insurer, in my opinion, was attempting to expand the scope of the law surrounding the change of condition statute O.C.G.A. 34-9-104. In this regard, the Court of Appeals held that there are no cases that exist in which the voluntary payment of medical benefits constitutes an award so as to allow a claimant to file for a change in condition at a later point. This issue is important as, if payment of medical benefits is construed as an “Award or otherwise” in O.C.G.A. 34-9-104(a), claimants must file a claim for weekly income benefits within two years. In this case, it is conceivable that the custodian could have been timed-barred from receiving additional weekly benefits, as it not clear that a Notice of Claim was filed within two years of the date that the last medical treatment. Fortunately for injured workers, this standard was not adopted by the Court of Appeals.

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Posted In: Georgia Workers' Compensation Case Update

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According to a recent article in the Douglas County Sentinel, the Villa Rica post of the GA State Patrol has remained the busiest in the state when considering the number of car accidents each day. In fact, the total number of vehicle crashes that most Georgia State Patrol posts investigate in a month equals the same number of wrecks the Villa Rica post will investigate in a single day! Of the 40,461 total accidents in the state of Georgia in 2008, Post 4 in Villa Rica was sent the scene of 4,263. While many posts tend to investigate larger crash sites and traffic-related fatalities, Villa Rica’s Post 4 has a contract with its local law enforcement to investigate major and minor wrecks.

Due to their excessive experience investigating these types of serious accidents, the troopers at Post 4 have noticed some interesting trends in auto wrecks. The Sentinel article touched upon the following common causes of accidents that the troopers of Post 4 have noticed in their numerous investigations:
- Many auto and truck accidents are caused by drivers who operate their vehicles while using cell phones, GPS systems, and radios.
- Drivers appear to be more impatient than ever before and tend to be in a bigger hurry while on the road.
- Two-thirds of car accidents or truck wrecks involve drivers who are under the influence or speeding.

Also of interest is the realization that most critical car accidents that involve serious injuries or death occur on rural “back roads” in the Villa Rica area, specifically Highway 27 and Highway 16 in the Carrollton, Georgia area. In fact, our office has handled numerous car and truck accident cases where drivers were injured on Highway 27 and Highway 16.

If you or a loved one has been injured in an auto accident or truck wreck, contact our Douglasville law office for a free, no-obligation consultation. We are conveniently located directly across the street from the Douglas County Courthouse.

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Posted In: Car Accidents

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I have been asked about how the economy affects workers' compensation claimants in a bad economy. There are several observations that I have made, some obvious and some not so apparent.

In Douglasville, GA, where my law firm is located, there has been a virtual shut-down of construction in both residential and commercial settings. Obviously, construction workers suffer some of the most severe injuries when work accidents happen.

First, if there are fewer workers across the board, there will be fewer workers' compensation claims. This assumption could be a bit skewed a bit if, for example, disproportionately more white collar workers are out of work compared to blue collar workers. Historically, most worrkers' compensation claims are made by injured workers who work in physical labor jobs including places such as factories, construction, and manufacturing. There are also many claims by what I refer to as front line service workers such as restaurant workers and maintenance professionals. If we assume, for example, a factory closes down in a given place while office workers are not losing their jobs, it is likely that the number of workers' comp. claims will drop to a larger degree.

I also believe that the lucky people with jobs, especially good jobs, are less likely to file a workers' compensation claim for fear of losing their job. I tell clients up-front that almost all insurers and employers will insist that they resign as part of the settlement of their workers' compensation case.

I will continue a series of articles on this subject in the coming weeks.

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Posted In: Workers' Compensation Information

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