EG- Gazette- Spring 2024

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Best Practices for Minimizing Attorney Fee Exposure

By: Christian Roig, Associate – Miami, FL

Georgia Posted Panel of Physicians: Best Friend or Worst Enemy?

By: Gabe Mobley, Associate – Atlanta, GA

Major Contributing Cause: An Investigation  

By: Kayli Marston, Associate– West Palm Beach, FL

Maintaining a Well-Oiled Defense: Preventing Backfires in Denials and Delay After Recent Tennessee Legislative Updates

By: David Ward, Associate – Nashville, TN

Chief Editor: Tracie Childers, Associate – Orlando, FL

Best Practices for Minimizing Attorney Fee Exposure

By: Christian Roig – Miami, FL

When handling a litigated claim, it is important to remember that Claimant’s Counsel always has two goals: obtaining benefits for their clients and racking up fees to be paid by the Employer/Carrier. Some plaintiff attorneys will also prioritize the latter over the former. While owing some fees becomes inevitable after the Claimant decides to retain an attorney, there are ways to move claims towards closure while keeping attorney fee exposure as low as possible. The general rule of thumb is the longer a petition remains open without resolution, the greater the potential fee that may be owed to Claimant’s Counsel. The following are some practices and strategies to resolve petitions quickly and minimize fees during the life of your claims.

Stay on Top of Treatment

            The best way to keep fee exposure down is avoiding the necessity of a Petition in the first place and timely responding to filed Petitions. By authorizing and scheduling physical therapy sessions, MRIs, and appointments with specialists quickly after receiving a referral, you limit opportunities for opposing counsel to earn a fee by obtaining these benefits. If the Claimant files a Petition for medical benefits, the opposing counsel’s attorney fee will not attach if the requested benefit is agreed to within 30 days of the filing of the Petition. “Regardless of the date benefits were initially requested, attorney’s fees shall not attach under this subsection until 30 days after the date the carrier or employer, if self-insured, receives the petition.” Fla. Stat. Ann. § 440.34(3)(d) (West). The Employer/Carrier does not need to provide the requested benefit within 30 days, they only need to concede that the Claimant is entitled to the requested benefits. See Jones v. Shadow Trailers, Inc., 134 So. 3d 1136 (Fla. Dist. Ct. App. 2014).

Stipulate to Reasonable Costs

            Going hand and hand with the previous practice, stipulating to reasonable costs in your Responses to Petitions will help you avoid owing unnecessary fees. It is not uncommon to hear stories of Employer/Carriers paying significant fees to a claimant’s attorney because they were successful in obtaining forty dollars of costs that the E/C did not agree to in their petition response. The 1st DCA ruled on the issue in Jennings v. Habana Health Care Ctr., where the DCA held that the Claimant was entitled to prevailing party costs even though the entitlement to attorney’s fees did not attach because of a timely response to the Claimant’s Petition. Jennings v. Habana Health Care Ctr., 183 So. 3d 1131 (Fla. Dist. Ct. App. 2015). The standard for awarding prevailing party costs differs from that of determining whether the claimant is entitled to an E/C paid attorney fee. The Claimant is entitled to recover the costs of filing a Petition if the Claimant prevails by obtaining a benefit that was not provided prior to the filing of the Petition and if a good faith effort requesting the benefit was made prior to filing. Prevailing party costs are a benefit that can entitle the Claimant to an E/C paid attorney fee. The best way to avoid this situation is to always remember to stipulate to reasonable costs in your petition responses.

Set the Claimant’s Deposition Early

While it is often said that no one likes having their deposition taken, the Claimant’s attorney is usually the most annoyed person during the Claimant’s deposition. Several plaintiff’s attorneys have a reputation for doing whatever is takes to avoid having their client’s deposition taken. These attorneys will almost always seek to resolve pending issues and dismiss their petitions in the week leading up to a deposition. Make sure to ask defense counsel if opposing counsel for your claim is someone with this reputation and if scheduling the Claimant’s deposition for as soon as possible will help nudge issues towards resolution.

The Golden Rule: Look Out for the One-Time Change

If the ultimate goal of defending litigated claims is to push the claim towards settlement and file closure, one tool in the Claimant’s Attorney’s toolbox acts as a constant threat against the accomplishment of that goal. The One-Time Change Request. Missing a One-Time Change results in the loss of control of the Claimant’s treatment which often leads to more petitions and increased treatment and litigation costs including attorney fees. With only five days to name a doctor, it is critical to catch a request as soon as possible to give you enough time to find the right doctor. The attorneys at Eraclides Gelman are well versed in the tricks that Claimants’ attorneys like to use to sneak through One-Time Change requests including faxing such requests the night before long weekends and major holidays and hiding requests within requests for other benefits. It is important that your attorney is someone you can trust to catch requests and keep control on the side of the Employer/Carrier.

Georgia Posted Panel of Physicians: Best Friend or Worst Enemy?

By: Gabe Mobley – Atlanta, GA

In Georgia, your workers’ compensation claim can go one of two ways based solely on whether there was a valid Panel of Physicians posted on the date of the injury. As long as your Employer maintained a valid Panel in compliance with Board rules, there is nothing to worry about. However, not having a valid Panel posted can open up a world of hurt (or financial burden) for your claim. I know it may seem like we are beating the importance of the Posed Panel into the ground, but we constantly see claims quickly increase in value exclusively based on Panel issues. Make no mistake, the Panel of Physicians is the most important part of your claim for Employers and Insurers to mitigate costs.

Statutory Requirements

Covered under O.C.G.A. § 34-9-201(b)(1), there are four main requirements for your Posted Panel. By definition, a “valid traditional panel of physicians” must include:

  1. At least 6physicians (or professional associations/corporations of physicians);
  2. At least 1 orthopedic surgeon;
  3. No more than 2 physicians from industrial clinics (no more than2 industrial clinics total); and
  4. 1 minority physician (whenever feasible – can be any specialty and can be an orthopedist).

Additionally, the Panel must have at least 4 different groups or practices (If you have multiple doctors listed from one practice, that counts as one total). Another caveat is that a hospital cannot be listed as an authorized physician and can only be utilized in emergency situations. To help ensure that there are no issues with your Panel, we always recommend offering more than 6 providers, preferably 8-9. If any of these rules are violated, the Claimant gets to control medical treatment and is entitled to treat with whichever physician they (more often their attorney) choose.

What happens if your Panel provider declines to treat the Claimant? Pursuant to Board Rule 201, should a physician on the panel of physicians refuse to provide treatment to an employee who previously has received treatment from another panel physician, the Employer/Insurer, as soon as practicable, shall increase the panel for that employee by one physician for each such refusal.

However, possessing a valid Panel is not enough under the Georgia Workers’ Compensation system, as there are additional requirements to maintain the validity of the Panel process and satisfy Board rules. To ensure compliance, O.C.G.A. § 34-9-201(c) requires that Employers must:

  1. Post the Panel of Physicians in a prominent place on the company’s premises;
  2. Take all reasonable measures to ensure that Employees understand the function of the Panel;
  3. Take reasonable measures to ensure the Employees understand their rights to select a physician from the Panel in the event of an injury, and;
  4. Assure that Employees are given appropriate assistance in contacting Panel physicians.

In addition to satisfying these requirements by explaining the Posted Panel to Employees when they are hired and in the event of any alleged injury, it can also be beneficial to host intermittent trainings regarding the Panel process and detailing their right to choose a physician from same. Posting the Panel in multiple locations on the premises can help ensure compliance as well.

Although the Panel of Physicians can be your best friend when utilized properly, O.C.G.A. § 34-9-201(f) covers how the Posted Panel of Physicians can become your worst enemy if it is invalid, not posted in compliance with statutory requirements, or simply non-existent. The statute states, “If the employer fails to provide any of the procedures for selection of physicians as set forth in subsection (c) of this Code section, an employee may select any physician to render service at the expense of the employer.” This most often results in the Claimants and their attorneys’ choosing physicians who will keep the Claimant out of work for extended amounts of time and recommend unnecessary treatments, diagnostics, and even surgeries in some cases. Not only is this designed to drive up the value of the claim, but it directly contradicts the purpose of the workers’ compensation system which is to return the injured worker to suitable work.

May 2023 Case Law Update: Sometimes Your Valid Panel Still Isn’t Enough

The court in Lilienthal v. JLK, Inc. recently opined on a portion of these requirements in a situation where the Posted Panel was posted in the “Resource Room” (art supply closet in the school’s main corridor, which was required under school policy to remain locked when not in use) at the job site. The only key to the resource room was located in a metal box inside the closed drawer of one of the school administrators. (See Lilienthal v. JLK, Inc., 367 Ga. App. 721, 723 (Ga. Ct. App. 2023).

Although the Claimant in Lilienthal was not only sent a photocopy of the Panel following her injury and signed off on a form acknowledging where the Panel was at when she was hired, she argued that the Panel was invalid since it was not posted in a prominent place on the business premises. The ALJ ultimately denied the Claimant’s request to treat off-Panel, stating that although the Resource Room may not have been the best option, it was sufficient to satisfy O.C.G.A. § 34-9-201.  Id.

The Claimant subsequently appealed to both the SBWC’s Appellate Division and Superior Court who adopted the ruling of the ALJ. However, the Claimant filed another discretionary appeal with the Court of Appeals where the ruling was reversed and remanded to the Board. The reversal here was based on a finding that “the ALJ erred by conflating the concept of accessibility with prominence. The fact that a panel is located in a technically ‘accessible’ location does not mean that it is posted in a ‘prominent,’ conspicuous, or easily seen location.”

Tips to Create Long-Lasting Friendship with Your Panel

To ensure compliance with O.C.G.A. § 34-9-201(b)(1), Employers and Insurers should intermittently check in with each other to maintain the validity of the Panel of Physicians. Reviewing the Panel regularly (at least once a year) to make sure that all physicians listed are currently valid and are practicing at their listed locations is extremely beneficial in making the process run smoothly. Since they deal with these doctors consistently, Insurers often know about all physicians listed on the Employer’s panel, so it is important to follow up and keep an open dialogue with each other to make sure everyone is on the same page and in the best situation to succeed.

As soon as an injury is alleged, the first thing you should do is take the injured worker to your Panel of Physicians and get them to make a selection. Although this may be impractical if the situation is emergent, allow the Employee to make their selection when they return to work following the injury.

When possible, it is important to commemorate the Employee’s selection of Authorized Treating Physician (ATP) from the Panel in writing when possible – by the worker circling their designation and signing/initialing the Panel. This assists in ensuring there is no discrepancy with the Claimant being offered the Panel on the back end and explicitly designating their choice of ATP for ongoing medical treatment. If the Employee refuses medical treatment at the time of the injury, it is important to obtain documentation of this as well.

Otherwise, don’t be like the employer in Lilienthal and make sure your Panel is posted in a location which satisfies all the requirements under O.C.G.A. § 34-9-201(c). Ensuring that your Panel is posted in a prominent place, thoroughly explaining the function of the Panel and the employee’s rights, and assisting them with arranging medical treatment can save you a lot of turmoil in the long run.

Unfortunately, it does not look like the Georgia workers’ compensation battle Employers and Insurers face with Panel disputes is going anywhere anytime soon, so we might as well get out in front of it and make the Panel our best friend. If you ever have a question about your Panels or need any assistance with compliance, please feel free to email me at

Major Contributing Cause: An Investigation

By: Kayli Marston– West Palm Beach, FL

To be compensable, an accident and injury must occur in the course and scope of a claimant’s employment. It should also arise out of employment. When we are discussing major contributing cause of an injury, we are addressing whether the incident or injury arose out of the employment. The proper inquiry being: Was the industrial accident more than 50 percent responsible for the injury compared to any other potential cause? Claim investigation plays a crucial role in answering this question.

According to Florida Statute, the Employer/Carrier is not responsible for treatment where the major contributing cause is not the industrial accident:

“If an injury arising out of and in the course of employment combines with a preexisting disease or condition to cause or prolong disability or need for treatment, the employer must pay compensation or benefits required by this chapter only to the extent that the injury arising out of and in the course of employment is and remains more than 50 percent responsible for the injury as compared to all other causes combined and thereafter remains the major contributing cause of the disability or need for treatment. Major contributing cause must be demonstrated by medical evidence only.”  § 440.09(1)(b), Fla. Stat. (2023).

Major contributing cause may come up in an instance where there are prior injuries to the same body part or a chronic condition affecting the injured body part. In order to ascertain information regarding the claimant’s pre-existing accidents/injuries/treatments to the affected body parts, several things need to take place.

First, sending out medical subpoenas plays a vital role in discovery of relevant prior medical treatment. Performing a medical canvas can also assist in determining where the claimant has sought treatment in the past. Defense counsel can also subpoena the major pharmacies (i.e. Walmart, CVS, Publix, Walgreens) which may help to get a better understanding of what types of conditions the claimant may have been treated for and what providers have been prescribing the medications.

Second, it is imperative to get the claimant deposition scheduled as soon as possible, if the claim is litigated. At the deposition, defense counsel will inquire about the claimant’s prior injuries, treatment or evaluations to the specific body parts injured. Questions pertaining to prior surgeries, hospitalizations and emergency room visits will also be asked.

Often, claimants are not forthcoming with regard to their prior medical history; especially treatment related to the alleged body part. In fact, they may even deny ever having the alleged body part evaluated by a medical provider. However, this is information that may be discovered by obtaining and reviewing medical records related to treatment that predates the accident.

Once the claimant has been deposed and after medical records have been obtained, a comprehensive review of the records will be necessary. This will assist with determining if the claimant’s alleged injury is actually pre-existing or if there is something else which caused the injury.

In the event you find the claimant does have a prior injury or chronic condition affecting the injured body part, it may be beneficial to provide a medical composite of the prior treatment to the authorized physician for purposes of obtaining an opinion as to major contributing cause based on this new evidence. A favorable opinion may read something like “the major contributing cause of the right should rotator cuff tear is not the industrial accident as it predates the injury date.”

If the authorized treating doctor is not swayed by the prior treatment records, another option is to obtain an independent medical examination (“IME”) and have major contributing cause addressed within the IME report because it can only be demonstrated by medical evidence. The only admissible medical evidence can come from an authorized provider, IME, or EMA.

When it comes to asserting a major contributing cause defense at final hearing, it will be important to prepare to counter the claimant’s argument that you have treated the affected body part in excess of 120 days. As such, filing a Notice of Denial (DWC-12) denying the exact pre-existing diagnosis as soon as you have notice that one exists is recommended. For example, if you’ve been treating an acute right shoulder strain, but you find out there’s a chronic right rotator cuff tear, file a denial of the rotator cuff tear right away in order to defend against claimant’s argument.

Another issue that may come up is authorizing treatment for a specific injury that is later found to be pre-existing.  For example, the authorized body part is the right shoulder, and the alleged injury is a rotator cuff tear. However, after authorizing treatment for the rotator cuff tear, records are received showing the tear predates the accident. If this occurs, it will be necessary to obtain a medical opinion from the authorized provider(s) as to whether the industrial accident caused an exacerbation (temporary worsening) or an aggravation (permanent worsening) of the pre-existing tear. By providing the medical provider with prior diagnostics, this may help establish the claimant’s pre-accident baseline condition. If the workplace accident only exacerbated the pre-existing condition, it may prove beneficial to send further correspondence indicating you are authorizing treatment to the exacerbation of the pre-existing condition, or in this example, the right shoulder rotator cuff tear.

It is very important to determine, at the outset of the case, what injury you are accepting. If possible, limit the authorized provider’s authorization to an acute injury rather than an entire body part. This will help, in the future of the claim, to effectively deny the pre-existing injuries. If just a right shoulder injury is accepted as compensable, the Judge of Compensation Claims could find that E/C treated and accepted the pre-existing conditions as well which would be detrimental to your major contributing cause defense.

This can be a tricky area of workers’ compensation and may seem daunting at first, but if you’re unsure of the major contributing cause of the particular injury that should be accepted or denied, defense counsel should be able to provide guidance on this issue.

Maintaining a Well-Oiled Defense

Preventing Backfires in Denials and Delay After Recent Tennessee Legislative Updates

By: David Ward – Nashville, TN

Even before my first week of law school, during orientation, a guest professor hammered home the importance of facts in a legal matter. It was a great introduction, accompanied by his rendition of Meghan Trainor’s “All About the Bass,” replacing “bass” with “facts.” “It’s all about the FACTS, the FACTS, the FACTS!” What was true then remains true today, especially in the context of delaying or denying benefits under Tennessee’s current workers’ compensation law and in light of recent legislative updates that throw an added consideration our way.

Under Tennessee Code Annotated § 50-6-226(d)(1), an Employer/Carrier can be liable for opposing counsel’s attorney’s fees when it wrongfully fails to timely initiate any of the benefits to which the claimant is entitled, including medical, temporary or permanent disability, or death benefits if the Workers’ Compensation Judge makes a finding that the benefits were owed at an expedited hearing or compensation hearing. The statute defines “wrongfully” as “erroneous, incorrect, or otherwise inconsistent with the law or facts.” Case law clarifies that the “wrongful” determination is made as of the date of the denial (See Ruggieri v. Amazon, August 10, 2023).

However, recent Tennessee Legislative Changes during the 2023 session have essentially replaced “wrongful” in the above consideration, with “unreasonable” – an undefined and highly subjective standard. Under this new change, the Trial Judge has the discretion to award attorney fees for what the Judge considers to be an unreasonable denial of a claim, or an unreasonable delay in benefits if the trial court makes a finding that benefits were owed at an Expedited Compensation Hearing.  Again, “unreasonable” is not defined in the statute, but this opens the door for far more leeway for the Court to make its determination and puts a higher emphasis in timely investigating a claim, obtaining evidence, and challenging causation if need be. These provisions sunset on June 30, 2025, though we would expect the legislature to continue to extend these provisions as it has done consistently throughout the years.

In addition to the elevated risk of attorney’s fee exposure, the Tennessee legislature has empowered the Judges in Tennessee to have discretion to award a 25% penalty to an employee when the Employer or Carrier “unreasonably” fails to provide benefits under a compensable claim. This penalty would be paid to the employee directly, on top of the “unreasonably” denied or delayed benefits. With the Court as the final arbiter if litigated, and with the Appeal Board’s history of deferring to the initial, trial court level, a speedy denial or a prolonged delay in authorizing treatment can be costly.

Whenever considering a denial or a strategic delay in authorizing benefits to obtain further evidence, the most important consideration for the Court will be the facts known at the time of the denial or the justification for the delay. As your attorneys, we are very successful in presenting the facts, evidence, and arguments needed to support the Court’s finding that a denial or delay was either proper or necessary given the facts at the time. In practice, the Judges with the Tennessee Courts of Workers Compensation will be highly skeptical of any denial or delay that is not supported by evidence to negate causation for the injury or need for treatment. Denial is always the Employer and Carrier’s right, and delaying benefits is often called for when an employee’s story is not adding up. We always stand ready to argue in support of denying benefits that are not owed and routinely conduct very expedited investigations and causation challenges when warranted.

Consider: Do you have signed witness statements to support denial of the alleged accident occurring? Be prepared to have that witness testify if the denial is challenged. Do you have prior medical records showing a preexisting condition? Be prepared to continue to offer benefits until the authorized treating physician provides a favorable causation opinion. Do you have surveillance that shows the restrictions assigned are not warranted, or a posting about a hunting trip on Facebook when the claimant is supposed to be out-of-work completely? Great, we are potentially on our way towards a disputed settlement! However, in the meantime, be prepared to continue benefits until the authorized provider sees the evidence and agrees that denial is proper. In short, our Judges want to base their determination on evidence and opinions outside of the parties and their representatives. Without this, the Court may seize on its window of opportunity to lean towards a sympathetic claimant if litigated.

My recommendation for avoiding the risks of additional and unnecessary exposure boils down to one word, and if you need the tune again, “the facts, the facts the facts.” If you believe that an employee is abusing the system and pushing for benefits that you feelshould not be owed, let me know and I can provide an expedient roadmap for bolstering that feeling with concrete evidence and medical opinions to support denial if challenged. Remember, the Court would consider the evidence at hand when the denial was made, so quickly shoring up the defense is key. If you have already gathered prior medical records, surveillance, investigations, or witness statements that support denial, ask yourself, “If this is challenged, is my evidence fully backed up by a medical opinion? Are my witnesses willing and able to testify? Is my evidence and supporting opinion objective enough to withstand the employee’s and the Court’s scrutiny?”

If you ever wonder whether a denial would be supported if litigated, or if a strategic delay is needed to further investigate a claim, please feel free to email me at – I am always happy to discuss evidence in hand, or to provide a roadmap to quickly further your investigation to expedite a favorable medical opinion to support denial. I continue to monitor Tennessee case law closely and will be able to provide more guidance on the recent legislative changes as we fully expect the undefined, “unreasonable” standard to be hotly litigated over the next years.