Goodman McGuffey partner, Sara Blackwell, will be a guest speaker on the Pro Cheerleading Podcast: The Truth Behind the Pom to discuss the topic of Union for NFL Cheerleaders this Wednesday, January 13th. For more information, visit the Pro Cheerleading Podcast: The Truth Behind the Poms’ website HERE.
Sara Blackwell’s areas of practice include all aspects of property, coverage, personal injury and employment law. Feel free to fill out the Contact Us form found HERE if you have any questions.
Today, the U.S. Equal Employment Opportunity Commission’s (EEOC) forwarded its Notices of Proposed Rulemakings (NPRM) on wellness programs under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) to the Federal Register. The NPRMs have been cleared by the Office of Management and Budget and sent to the Federal Register for publication.
Previously approved by the Commission, the proposed rules address what level of incentives employers may lawfully offer to encourage employee participation in wellness programs that require disclosure of medical information, without violating the ADA or GINA.
The NPRMs respond to a decision by the U.S. District Court for the District of Columbia that vacated a portion of EEOC’s previous ADA and GINA regulations. Although the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as amended by the Patient Protection and Affordable Care Act, allows employers to offer incentives up to 30 percent of the total cost of health insurance to encourage participation in certain types of wellness programs, the ADA requires that employee participation in a wellness program that includes medical questions and exams be “voluntary.” Because the ADA and GINA do not define “voluntary,” the NPRMs propose that, in order to comply with the ADA and GINA, employers may offer no more than a de minimis incentive to encourage participation in wellness programs, with the exception of certain wellness programs that would be permitted to offer the maximum allowed incentive under the 2013 HIPAA regulations.
You can find more information on the U.S. Equal Employment Opportunity Commission Website, https://www.eeoc.gov/regulations/wellness-rulemaking
GM attorney Samantha Mullis will be speaking at the Atlanta Bar Association Litigation Section Zoom Breakfast Meeting this coming Friday, January 8th from 8:00 -9:00 AM on the topic of “Perspectives on High Exposure Litigation and Trials”.
You can find more information and register for the webinar by visiting the Atlanta Bar Association website HERE. You will be sent a link upon registration a day or two before the event.
Chief Justice Harold D. Melton has recently signed an order that will suspend jury trials statewide in the face of the disturbing spread of the coronavirus. This order amends the order that was signed on Dec. 9, which extended for the ninth time the Statewide Judicial Emergency first declared on March 14, 2020.
The order can be read in its entirety HERE.
The EEOC hot off the presses has just released new COVID-19 vaccination guidance, as well as other updated and frequent pandemic related questions. You can read more on their website HERE.
The employment team a Goodman McGuffey is here to help answer all of your COVID-19 employment related questions. Feel free to fill out the contact us form that is located under the CONTACT tab at the top of our website, or reach out to any of our GM Employment team.
We would like to congratulate Katherine I. Barton for passing the Georgia Bar Exam and joining the firm’s liability defense practice group of Goodman McGuffey as an Associate Attorney!
Welcome to Goodman McGuffey LLP!
Congratulations to Brena Bergman and Rachel Harman for passing the Florida Bar Exam and joining Goodman McGuffey as Associate Attorneys!
Brena is working out of the Orlando, FL office and is a part of the firm’s workers’ compensation team. Rachel is working out of the Sarasota, FL office and focuses her practice on insurance coverage and premises liability.
Welcome to Goodman McGuffey LLP!
James Hankins and Samantha Mullis recently won summary judgment in a case involving a customer that allegedly tripped and fell down a set of concrete stairs in front of the their client’s store. In Michael Kearse v. Family Dollar, Mr. Kearse filed suit against Family Dollar and one of its employees, asserting claims of failure to maintain safe premises and failure to warn. Early in the case, James and Samantha obtained summary judgment for the employee, arguing he was an improper party to the case. After completing discovery, James and Samantha filed for summary judgment, arguing no hazard existed on the premises and Mr. Kearse’s knowledge of the alleged hazard at least equaled that of Family Dollar. In response, Mr. Kearse argued a hazard existed on the premises and that Family Dollar had superior knowledge of problems with the stairs. Additionally, Mr. Kearse argued Family Dollar spoliated the video from the surveillance camera system, and thus, he argued summary judgment was improper. The trial court ultimately agreed with James and Samantha and it found the stairs constituted an open and obvious static defect that Mr. Kearse had equal knowledge of based on him walking up the stairs shortly before the incident.
You can read more on this case by clicking HERE.
Team Goodman McGuffey participated in the 2020 Run for Justice 5k this past Saturday that benefited the Atlanta Legal Aid Society. This year looked a little different due to COVID-19 and was done virtually, but we still had a successful team!
Members of this year’s team included Teri Zarrillo, Fred Green, Tina Lute, Jonathan Anderson, Britton Farlow, and son of Robert Luskin, Jackson Luskin. Jackson Luskin came in first place in his age category (ages 10-14), with an incredible time of 19:59.
Great job team and looking forward to next year’s 5k!
The Georgia Court of Appeals recently determined that a claimant may re-litigate a proposed treatment course after a change to a new authorized treating physician (“ATP”). While this decision seems to allow a claimant to continue requesting hearings seeking the same procedure, there are limits.
In Trejo-Valdez[1], the claimant suffered a compensable back injury. Following two surgeries, the ATP recommended a spinal cord stimulator (“SCS”). The claimant then had at least 4 independent medical evaluations with 4 different doctors, two of whom determined a SCS was not medically necessary and two of whom said the claimant “could benefit” from a SCS. With this conflicting evidence, the administrative law judge issued an Order denying authorization for the SCS but designating Dr. Pollydore as the new ATP “in view of the conflicting medical reports.”
As the new ATP, Dr. Pollydore recommended a SCS trial to determine whether a permanent SCS may be appropriate. The employer controverted the SCS trial as not medically necessary. When the issue went to a hearing, the employer also argued that the claimant’s request for a SCS trial should be denied based on res judicata (pronounced “race” judicata) because the judge already determined that the SCS was not medically necessary after the first hearing.
Res judicata is an affirmative defense which essentially bars the same parties from re-litigating the same issues. However, in Trejo-Valdez, the Court of Appeals reasoned that a claimant’s course of treatment is “fluid” and may evolve over time such that the “issues” may be different. Because of the claimant’s changing health and the new ATP, the Court of Appeals determined that the issues were not “identical,” so res judicata would not bar him from litigating authorization for the SCS trial again.
The first and second hearings before the State Board in Trejo-Valdez did present slightly different issues because the second hearing was over a SCS trial to determine whether a permanent SCS would be appropriate. However, arguably, if the claimant had the SCS trial and his new ATP recommended a permanent SCS, the parties would be back in the same position arguing about res judicata.
In Trejo-Valdez, before reaching the Court of Appeals, the Superior Court seemed to recognize the tension between the claimant’s changing medical needs and the employer’s res judicata defense, so it placed the burden on the claimant to prove that he suffered a change of condition for the worse. However, the Court of Appeals reversed reasoning that the burden of proof remained on the employer when arguing medical necessity.
The Court of Appeals reasoned that the Workers’ Compensation Act is “a humanitarian measure which should be liberally construed to effectuate its purpose.” On one hand, the Court of Appeals’ decision makes intuitive sense. Certainly, a claimant’s condition and treatment are likely to change over time, so the Court or the State Board of Workers’ Compensation may be apprehensive about foreclosing a treatment option if a claimant litigates it prematurely. On the other hand, res judicata generally deters parties from litigating issues prematurely. Allowing claimants to re-litigate issues wastes resources for employers, insurers, the State Board, and claimant’s attorneys.
The Trejo-Valdez decision may embolden claimants and their attorneys to litigate early and often. However, the fact pattern in Trejo-Valdez should limit their success (or at least give them pause) because of the detailed and changing questions of fact. The Court of Appeals did not do away with res judicata, so claimants still may be pushing their luck by requesting a hearing too soon.
The ambiguity in whether res judicata will apply may be a sufficient deterrent to discourage unnecessary and premature litigation. Time will tell.
If a request for hearing gives you a feeling of déjà vu, contact Jonathan Anderson at(404) 926-4104 or janderson@gm-llp.com, to discuss whether res judicata may offer an affirmative defense.
[1] Trejo-Valdez v. Associated Agents, A20A1499, 2020 WL 6335980 (Ga. Ct. App. Oct. 29, 2020)
