Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com

Flores v. Dependable Tire Co., Inc.

The Court of Appeals held the evidence was sufficient to support Workers’ Compensation Board’s finding that claimant did not sustain a change in condition based on injuries sustained in an intervening motor vehicle accident while leaving a doctor’s appointment related to his compensable work-related back injury.

Employer sought judicial review of Workers’ Compensation Board’s finding that automobile accident did not break the chain of causation of claimant’s work-related back injury, and that his condition was directly and causally related to the work injury.

The record establishes that Flores sustained a compensable on-the-job injury on February 12, 2008, when he injured his back while lifting a large tire.  He did not return to work.  His claim was accepted by the employer, Dependable Tire Co., Inc., which paid indemnity benefits to Flores.

On November 18, 2008, as Flores was leaving a doctor’s appointment related to the February compensable injury, the vehicle in which he was riding was struck from the rear, and he was slammed into the dashboard, causing him to lose consciousness.  The vehicle in which Flores was traveling was provided by the employer.  Although Flores testified that he did not choose the transport service provided to him, there was evidence the employer’s insurance company provided the vehicle because his attorney requested it and that the employer was not involved in scheduling Flores’s appointments.  As a result of the collision, Flores complained of pain in this neck and back, as well as in his chest, abdomen, pelvis and knees.  He was diagnosed as having acute chest, abdomen, and pelvic blunt trauma, neck sprain, and acute contusions to both knees.

In April of 2009, Flores returned to the treating physician, but did not report the November automobile accident to him.  Nevertheless, the doctor noted that Flores again reported his pain level as an eight out of ten; that the accident aggravated Flores’s neck and back injuries; but that his diagnosis of lumbar disk herniation and cervical disk herniation was the same before and after the accident.

Affirming the ALJ’s award, the Board concluded the accident did not break the chain of causation of Flores’s injury and that his condition was directly and causally linked to the work injury.  The Board adopted the ALJ’s conclusions without expressly analyzing the issue of whether the accident should be considered work-related.

655105-1

Hearn v. Dollar Rent A Car, Inc., et al.

Court ordered Employer/Insurer to issue settlement check to Claimant but without listing Medicare as a co-payee when release recognized Claimant’s responsibility to pay Medicare lien.

Minnie Hearn filed her complaint against DTG, York, and Dollar based upon a dispute as to whether a $20,000 settlement check should include Medicare as a payee.  The settlement arose from a November 28, 2002 automobile accident in which the driver of a car rented from DTG struck Hearn’s vehicle.  DTG “contractually retained York as an independent Third Party Administrator (“TPA”) to handle claims in Georgia against DTG’s renters.”

During settlement discussions between Hearn’s attorney and a claims adjuster with York, the issue of Medicare’s involvement arose.  According to the claims adjuster, she relied upon the attorney’s representation that Medicare did not have an enforceable lien when she agreed not to include Medicare as a payee on the check.

The attorney’s version was that “from day one” he and the claims adjuster both knew Hearn had been on disability and that Medicare paid some of her bills relating to the accident.  In support, he pointed to the medical bills he provided to the claims adjuster in May of 2004 indicating Medicare had made adjustments, write-offs, and payments.

On October 5, 2004, the claims adjuster offered in writing to settle Hearn’s claim for $20,000.  There was no mention of Medicare being an additional payee on any settlement check in this letter.  Hearn signed the release, which included her agreement to indemnify against “all further liability, loss, damage, claims of subrogation and expense.”  She also agreed to release “known and unknown liens including Medicare.”  After returning the executed release to the adjuster, the settlement check included Medicare as a payee.

Under Medicare statutory and regulatory framework, York faced potential liability for both the amount of any Medicare lien and double the amount if Hearn failed to satisfy any such lien within 60 days of receiving the settlement check.  The adjuster stated the potential liability was the basis for adding Medicare to the settlement check.  Hearn sued to require another check be issued without Medicare being listed as a payee.

After reviewing and considering the Medicare reimbursement statutes and regulations relevant to the specific facts of this case, the Court concluded that public policy does not preclude a court from enforcing an agreement to omit Medicare as a co-payee on a settlement check where, as here, the plaintiff signed a release that acknowledged her responsibility to pay any Medicare claim and agreed to indemnify the released parties.

655131-1