Burdine & Brown

02/14/2024

01/26/2024

Are Mediations a Good Thing?
The latest in job injury and in auto accident cases is to settle through the mechanism of a Mediation. Mediation, if handled properly, can be a good thing for all parties. A few good reasons to mediate is the parties obtain a much quicker resolution, the injured person can move on with their life quicker (hearings and trials can take between 6 months to 2 years in litigated cases) and the bad feelings that are part of the litigated cases genuinely hurt my clients emotionally and can be avoided in a settlement mediation.
But how you talk to your injured client about what mediation entails can make a difference in their attitude going into this process.
If you first tell your client “Mediation is about compromise, what is fair and what is reasonable,” watch out for their adverse reaction. Compromise can have the connotation of surrendering one’s rights, one’s position and clearly the money my client strongly believes they are due.
I have heard from many professional mediators that the lawyer who represents the injured worker or plaintiff merely throws up a number that is completely unrealistic with no basis in reality or the facts of the case. It is terribly important to show the client the value of their case and claim and why that is so. Clients will listen to their lawyer IF the lawyer has been following their case, been working to do everything to increase the value of the case. But the lawyer must also inform his client that there may be another way of looking at his case or at least looking at different expert’s opinions. In many cases, the insurance interests are always able to find their own expert who may have a vastly different view of my client’s injuries, how long it will take to recover and what kind of permanent impairment one will have and how quickly that person will be able to return to the work force. I have an obligation (and it is certainly wise) to review alternative opinions with my clients long before the mediation begins.
Mediators like to say, when they are meeting with me and my clients during the mediation, “don’t you want to control your own life again?” How appealing this sounds. And it is true but re-gaining control should not be a major compromise of one’s case value.
If we have a strong position going into the mediation, we have a better chance at a “reasonable” outcome. Again, my client may not want to be “reasonable” if it means continually lowering his/her demand. Most clients believe the insurance side is quite unreasonable with their initial offer or two. It tends to back them up against the wall, making them reluctant to engage in the back and forth that mediation always requires.
I believe that it is imperative we meet with our clients a week or so before the mediation date and discuss the entire process. The client must know they can walk away without a settlement of their claim. This gives them the power to push harder for their goal. And just as importantly, during that meeting with your client, discuss the bottom line that they will agree to settle at the end of the mediation. Sometimes, I am shocked at how much money the client feels they deserve when, especially in the workers’ compensation cases, there is no way I can get them that kind of money. Educate your client on the actual value, give them reasons for this value and you can have a much better opportunity at successful mediation.
When the mediator tells us that the insurance company lawyer is stopping the mediation because they have reached their maximum authority given to them by the insurance company, that lets your client know that you may have reached an “impasse.” Maybe my client and I should pack up and head home. Or we could reach out to the other side with one more “final offer.” This usually can get us $5,000 to $15,000 more if one can present a good argument for it.
One “minor” detail-as you and the insurance lawyer agree to mediate, make sure you state that the insurance company pays for the entire cost of the mediation. And get that statement in writing. Mediators charge about $1,000 or more for each of the parties to participate.
In summary, mediation can be productive but without advance preparation and a client understanding of what his/her case is really worth at a mediation, you could be wasting a lot of time. Prepare, prepare, prepare. It is your best weapon for a successful mediation.
It seems to me that an experienced mediator tries to build bridges between the warring parties. The issues at the beginning of a settlement negotiation are many and tend to force the parties into an “us versus them” mentally.
A recent article in the Fulton County Daily Report dated December 27, 2023, quotes author and mediator Ted Blum as saying “…breaking down barriers between people who seemingly have polar opposite intents and bring them together for a common win-win goal,” is what a mediator can do.
I tell my clients to be patient at the onset of mediation. The preparation I did, as their advocate, long before the day of mediation, will “wear the other side down” as the facts and time will tell. You cannot expect a good result without maximum preparation. If you cannot persuade the insurance company’s committee to pay the right amount weeks before the mediation date, it will not happen on the day of the mediation.

01/26/2024

Video Surveillance is worse than Instagram or You Tube
I am writing this short missive (a rant with a particular bent to it) about video surveillance initiated by the workers’ compensation insurance companies. Their goal: to force, to push, to intimidate my clients into settling their claims before the right time and especially BEFORE a course of medical treatment has been completed.
Remember first that there are many doctors out there who treat injured workers after a job accident. Most of those doctors are listed on the panel of doctors posted on each employer’s place of business. So, we can assume that most of the doctors have an inherent insurance company bent or favoritism. I have experienced this phenomenon in my law practice for over 40 years in Atlanta area, Suwanee, Georgia.
These same doctors, even after a surgery performed on one of my clients, encourage my client to return to activities. Of course, this is a good thing. Surgery should improve my client’s health and ability to function after a course of physical therapy.
The big problem is that the vast majority of surveillance videos obtained after many hours of unsuccessful tracking my clients only show them loading plastic bottles of water into the back of their car or truck. And why is this activity always filmed in a Walmart parking lot? So when this activity, examined by the surgeon, is performed by the worker recovering from surgery, and recorded by the private investigator, is then shown to the doctor who did the surgery-what is the surgeon supposed to say? Does this isolated activity give the doctor (who is shown the video by the insurance lawyer who has made a private appointment with the doctor to “review” the activities of my client), the “right” to be outraged by the video? Does the doctor, at the encouragement of the insurance lawyer, feel compelled to release my client to full duty work after viewing a short video of minimal, doctor sanctioned, activity? Regretfully, this happens all too often.
This reminds me of entrapment in a criminal law setting. The police offer a bag of pot to an unsuccessfully but willing buyer and after the purchase, the buyer is arrested for purchasing the pot from the police officer. The courts all over America have thrown out these arrests. Obviously, there are subtle differences. There is no crime except my client is trying his best to recover from a physical and economic injury (recovering only 2/3 of his salary in disability benefits while recovering from the injury). Now he is being pushed prematurely into returning to a job he may not be able to perform because of a lousy video surveillance.
I will admit that after a surgical event has allowed sufficient time for my client to heal, a surveillance video can genuinely “push” a worker to get back to work but these instances are rare. It is the coordinated effort on the part of the insurance adjuster, private investigator, insurance lawyer and panel doctor that is designed to cut the legs right out from under my client who is still recovering from a job injury.
You ask what is lawful surveillance? The answer generally is that if the camera is in a public place (on a street, in a parking lot) it is legal to utilize surveillance. But a private investigator cannot use surveillance to record a person inside their private home. That is why you see most videos are taken in Walmart parking lots, fast food locations or in gas stations.
In workers’ compensation cases in Georgia, I tell my clients they are participating in a war. The insurance folks along with the employer attempt, whenever possible, to terminate, cut short and generally cut off my client’s benefits wherever and however possible. There is no such thing as mercy, only raw emotion that borders on hatred of the inured person. It is so shameful. Did my client deliberately get hurt. Did my client deliberately decide to reduce his/her salary by 1/3 after a job injury? Yet, if you speak to a claims person, all workers are trying to rip off the workers’ compensation system. Do unto others as you would have them to unto you. We should be reminded of this motto more often as we do our part in this heavily employer and insurer weighted system of laws.

01/10/2024

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01/10/2024

It really bothers me to see the injured workers’ maximum weekly disability benefit rate be held hostage to the insurance company and big business’ strategic goals.
Specifically, in 2022, the maximum weekly benefits rate was $675 per week. In 2023, the maximum rate was slightly increased to $725 per week. In July 2023, the rate was increased to a maximum of $800 per week.
To figure what the disability payment is for the injured worker in their workers’ compensation claim, one must determine the average weekly wage over the 13 weeks prior to the date of the job injury and multiply that number by 66.7%. Therefore, if one’s job injury occurs after July 2023, and the average wage is $1200 per week, the worker would receive an $800 per week benefit.
In percentage terms, even the increase to $800 per week in benefit amount, Georgia remains the lowest state in terms of the percentage of the state average weekly wage. Furthermore, Georgia ranks 43 out of 50 in terms of the maximum dollar amount required to be paid by the insurance companies for the disabled worker.
Why is Georgia so regressive? Am I being too critical of the workers’ compensation system? I do not think so. Once injured, the worker will lose 1/3 of their weekly salary if they cannot work temporarily.
How do you take care of your family with an immediate 1/3 drop in earnings? How do you pay for childcare, rent and a car loan?
Other states, 42 of them to be exact, have recognized this sad problem for the injured worker and have raised the disability rate to an amount that recognizes the plight of the disabled.
Too quickly the insurance companies and employers see an injured worker as a liability and reluctantly pay benefits. Their immediate and long-term goal is to terminate these benefits.
But, getting back to why the disability rate is abnormally low, the insurance company lobby at the legislature year after year attempts to use the weekly disability rate as a bargaining chip to decrease other precious rights of the worker. “If you want a higher disability rate, you must give up another right,” so the argument goes.
The argument of the injured worker and their few advocates is to index the weekly disability benefits to the state average wage increase as determined by the Department of Labor each year. This would take all the argument and bargaining out of this issue and rightfully return it to the realm of fairness.
One must realize that the goal of the insurance lobby and that of big business is to “keep the lid” on the workers’ benefits. In fact, Georgia is recognized as one of the most insurance friendly states, with premiums lower than most states in the US. Let’s hope enough folks in the State Legislature will help to stem the tide and recognize the worker deserves an increase in his/her disability rate without bargaining or surrendering other valuable and decent rights they possess.

01/10/2024

There is a crazy idea beginning to circulate among the major stakeholders in the Georgia Workers’ Compensation system at the end of 2023: turn the panel of physician into a cyber panel giving the insurance folks total control of the panel, changing it at their whim which will ensure that all companies have the panel legally “posted” on the website of the employer.
Why would the insurers want to do this? Simply because now there will never be a situation where the panel can be declared illegal, improper or incomplete. If so declared, then the workers can find medical help off panel, anywhere he or she would like to get that treatment for their on the job injury. A good and aggressive lawyer (and I hope I qualify as one) examines this issue in every case.
Here is some background. The panel of doctors is a list of six doctors that, according to the current law, MUST be posted in a conspicuous place on the employer’s premises that is always readily accessible to the worker so the worker may choose where to get free treatment for their job injury.
Assuming the worker is informed of the existence of the panel when he/she first begins to work at the employer (and this a rarely the case) then the worker is required to pick from one of the six doctors on the list to obtain free treatment for their job injury.
There are many times that an employer FAILS to post this panel at work. I love it! Without a properly posted panel of physicians, I can demand that my client see any doctor qualified to treat my client’s injuries in their workers’ compensation case because the employer violated the law.
Insurance companies are notorious for loading the doctor panel with horrible insurance doctors who do not give a “rip” about the worker’s condition. Ironically, the horrible panel doctors who delay and deny treatment to my clients is a major source of new workers’ compensation clients for my law practice. Clients call me wondering why they must stick with their panel doctor. The frustration, anxiety and feeling of resentment at the lack of quality of care provided by these doctors is absolutely amazing (if not shameful). So maybe I should not be so concerned about the doctor panels. No, that is not my response.
Did you know that only five states in the US continue to have a posted panel of doctors requiring their injured workers to attend and treat with these marginally qualified doctors? Of course, Georgia holds tightly to this aspect of the workers’ compensation laws of this state.
When I began my practice of law in 1979 in Atlanta, Georgia, the law required the employer to post a panel that had only three doctors on it. Over time, the panel requirement changed to four doctors and now the panel consists of six doctors, clinics, or hospitals.
I truly wish that if Georgia is going to keep this relic of the old days of labor law, the panel of doctors should have fifty doctors on it. The more on the panel, the more likely I will find a decent doctor on it but certainly not with only six doctors and clinics.

10/12/2023

Who Can Read your Social Media Posts?
Let’s start with chat communicating with your lawyer. That is privileged and will always be so. If you are communicating with my paralegal staff, that too, is privileged communication.
But you decide to send those communication to your spouse, your friends in church or your best friend and neighbor by text, email, or other social media platforms. Boom! The privilege is gone, wiped out. And now it is discoverable by the insurance lawyer and his office in your workers’ compensation or automobile accident claim I am handling for you.
So, please listen to me and stop texting, emailing friends, etc. about your injury, your case status, etc.
Remember, you cannot delete what you already posted in cyber space. What has already been published is open to any insurance company’s “prying eyes”. But if you stop this activity, then they can get nothing else from your online posting.
The Federal Rules of Civil Procedure REQUIRE the preservation of any items that may be evidence in a case and the courts can impose severe penalties for items you have deleted or destroyed.
I had an insurance lawyer, during a settlement mediation, show me a post of a young lady client bragging she was dancing at a night club a few days before the mediation. Do you think the value of her claim “crashed”? Oh yes, it did and rightfully so. If she could dance with abandon, then she could certainly perform work for her former employer.
I get it. Social media is where you can boast about all you do or would like to do. It drives your “friends” up the wall with jealousy. But if you have an open injury claim that I am handling for you, I will tell you right up front that the more you brag or exaggerate the truth on Social Media, most likely you will have to answer about what was the truth, your genuine condition as stated by you and to your doctor as to what you stated on social media.
I have a few DO NOT DO THIS for you to take to heart:
• Don’t post anything.
• Don’t delete anything already posted.
• Make sure your settings are as private as they can be.
• Do not accept friends’ requests if you do not know them personally.
• Do not hide this social media information from me, your lawyer.
• Remember, every time you post it is PERMANENT.
• Photos can hurt you.
• Do not join any groups because an insurance company could use the group to get access to your site.
Lawyers like to ask their paralegals to do the task of probing your internet site for easily accessible information about you. And they love doing this. Finding things are like gossip, ill-found but very valuable. It can destroy your case.
In the old days, this was not a problem. If you wanted to vent your feelings or just talk to your neighbor, you would pick up the phone and call. Today, if you really need to communicate in a very personal way, call someone, don’t use social media. This is such an easy way for insurance folks to pick up “free” data. And what will they do with it: try showing it to your treating doctor. I will bet your treating orthopedic surgeon would change his/her mind about your medical condition in a New York minute after seeing pictures of you gardening, raking, cleaning the gutters to your home, dancing at a party, riding a bike, etc., etc.
No one will believe you after your social media has been hacked. And no judge will rule in your favor after seeing or reading of your many posts and your physical activities.

09/26/2023

The SWEAT PLEDGE
I don’t know for sure about you, but before you met me to represent you in your job injury claim caused by something out of your control, you were working a job that was either on your way to a better job, a job you were stuck in because of your dumb boss, or a job that was there because you could not find another one.
I get it. Maybe you need a higher education or more skills/experience to get a better, more attractive job. But have you even thought you were fortunate just to be working, no matter how dirty the job was?
One of my favorite TV characters is Mike Rowe. You know him as the man who does the dirty jobs and shows us those people who perform them, willingly and without complaining.
That is the point. Mike Rowe wants us to realize that a young person does not require a four-year college education to earn $100,000 or more per year. Vocational training is almost without college debt and is quick placement in good paying jobs to start with as an apprentice and then to move up the ladder in two or three years to earn a good salary, have job satisfaction, start a family early and maybe, just maybe, enjoy your work.
Mike has been very successful with his Dirty Jobs series that started on TV in 2008. There are a number of DVD’s of all the dirty jobs he provided for TV. Lately he has started a scholarship program to grant young folks a money reward for choosing dirty jobs instead of four-year college. This is a very successful program.
Most recently, he has developed what he calls the SWEAT pledge. This is an acronym that means: Skill and Work Ethic Aren’t Taboo.
The first letter of the pledge is gratitude. Mike wants us to develop an attitude of gratitude. We should decide to be grateful. When you count your blessings, he says, you cannot feel sorry for yourself. He states: “I believe that I have won the greatest lottery of all time. I am alive. I walk the Earth. I live in America. Above all things, I am grateful.”
Mike is convinced that Americans do NOT appreciate hard labor. We want instant results. We have a skills gap because we do not know how to do many things; we have no skills because we haven’t been taught many skills, just ideas (and those have not been very helpful looking at the far-left wing thoughts/attitudes that are spewed out by our young folks coming out of college).
An attitude of gratitude: it is a Biblical principle that Mike has polished and re-polished it in a very persuasive way, linking it to employment in a skill-based work environment.
Check Mike out on TBN Network. He is great. I will explain the rest of the SWEAT pledge in another blog.

09/20/2023

The struggle between treating doctors-regarding employee work status in job injury cases
Lately this issue has surfaced in a City of Atlanta workers’ compensation case. A police officer was injured in an on-the-job accident.
Kyle Johnson is the police officer. He was treated by a City Approved panel doctor. This doctor ultimately released Officer Johnson to work but only in a light duty capacity.
Johnson wanted a specialist’s opinion and the City authorized him to obtain this opinion from the Panel of Doctors kept by the City. This type of procedure happens in many cases. Usually, the first doctor is more of a general, clinical doctor, not suited to addressing the details of a specific injury, for example.
Unfortunately for Office Johnson, the specialist examined him and told him he could return to full duty work.
This pronouncement gave the City the opportunity to suspend the officer’s weekly workers’ compensation benefits. Apparently, the first doctor, probably the clinic doctor, disagreed with the specialist’s opinion and kept the officer on light duty work. This pronouncement would allow for the officer’s continuing receipt of weekly benefits because there are very few light duty jobs for police officers to do.
In my practice in Suwanee, Georgia, I find that the clinic doctor, the first line of treatment in a job injury case, is the one to usually say the injured person can return to work without restrictions. It is the specialist who orders more invasive testing and discovers further medical evidence of injury and thus disability.
The Court of Appeals three Judge panel held that the City’s interpretation of the stature in question “construes the regulatory text unnaturally” and “cuts against the statutory scheme’s philosophy.” These three judges stated that there is only one authorized treating physician (ATP) in a workers’ compensation case, and it was NOT the specialist.
These issues are quite important, not only because they define an employee’s medical status, but it involves the obligation of the employer to continue to make weekly payments to the employee of disability benefits.
So, this case came down to a decision as the who is the ATP. When the employee asks to be examined by another doctor, presumably a specialist, then does the authority of the ATP switch to the specialist? It should.
Again, in my practice of workers’ compensation in Suwanee, I try very hard to have the insurance company sign a document called WC-200A. This is an agreement as to who the ATP is. Still, even this document, having been agreed upon by all parties, could create confusion and ambiguity over who the final authority is.
The Court of Appeals decision has been appealed to the Supreme Court of Georgia by the City of Atlanta. It will be six months until a decision will be reached by the Supreme Court of Georgia.

09/05/2023

I recently read an article in the FCDR dated Wednesday, August 2, 2023. The title of the article was “To Grow Your Business, have a master of business development strategies.”
The author of this article, a rather young lawyer, gave eight categories where a lawyer in a small firm could increase his business.
I am pleased to say that I have implemented all eight of these strategies and more. My success is due, in part, to these strategies. The key is how do we define success.
Let’s look at his eight strategies:
1) WIN-this one is easy. The author says that nothing gets you more loyal clients than if you are successful in handling their cases. I will say that when clients refer other clients, the first thing they say is “he won my case, he helped me greatly.”
2) Take your client’s matters personally- we like to say in our office “that we treat our clients like family.” This is shorthand to say we will help and take on work for our clients personally.
I think that when your lawyer just looks at your case as a “ho hum” win or lose, it does not matter, then you need to find another lawyer, a lawyer that wants to win your case!
3) Be Authentic-The only way you can be authentic is to meet with and talk to your clients. What is in their heart. While I am not a counselor, I can surely see what worries and preoccupies the client. This is most prevalent with injured clients that suffer with psychological overlays. Be quick to talk to that client about referring them to a “sympathetic ear-psychologist” for treatment. It is tough to start that conversation, but the client will appreciate it.
4) Execution-putting wisdom to work is key. The other day, Carmen and I had an opportunity to attend a small gathering of lawyers I had never previously met. We attended with the goal of meting other lawyers and letting others know the kind of work we do (and I hope I do it well). We met two lawyers with a ton of experience. Had we stayed at home we would have lost out on possible referrals from these lawyers. The author quotes Woody Allen, comedian, who also once said: “80% of success is just showing up.” How true. To be successful you need exposure and ex*****on.
5) Build a Brand-The author believes that we must be known for being special, unique, personal. To say, “I have been a lawyer for 44 years,” will not get you anywhere. To say, “I have been handling workers’ compensation cases for 44 years only representing the injured worker in Atlanta”, now that helps to build my brand.
6) Stay in front of your clients and prospective clients-Do not neglect your clients. Both Carmen and I enjoy handling our clients’ cases. I have discovered that an “an eyeball to eyeball” meeting uncovers so much more than an email or a text or phone call. This takes being available. You cannot always be travelling and vacationing (as many lawyer’s do)if you want to grow your practice.
7) Identify and Define your Target Market-This segment sounded to me like it was the “build a brand” with just a few different words. It was not very helpful.
8) Never Stop Growing- I know a number of lawyers who have been in practice for 20-30 years. Most have seemed to reach the point of exhaustion. They are not pushing, competing, trying to build new business. This is a fatal flaw. That lawyer winds up with an increasingly smaller practice. The motivation of building a practice is gone and that attitude shows! Their attitude turns into a “let’s earn money” instead of caring for their clients. I do believe that when a lawyer or business owner finds that they really don’t care anymore about their clients, it is time to hang up the shingle and quit. I am honestly telling you I am far from that point. I relish the competition, the desire to win, to make a difference for each one of my clients.
9) Lawyering is very competitive with the big firms advertising on TV, billboards and everywhere in between. I will never be that lawyer or even close to it. But there is no one better than me in what I do. And that you can count on.

But now, I must tell you where I receive any wisdom I might exhibit: From the Holy Spirit. Here are a few paragraphs with great meaning taken from the Best Book Ever Written, so much more than the with ways to grow your business.

1. Guard your thought life -1 Corinthians 6:18
2. Learning the secret of contentment-Acts 20:33
3. Commit my way and work for God-Proverbs 16:3
4. Follow the path of the righteous-Psalms 24:3-4
5. Guard my speech-Proverbs 4:24
6. Love the virtue of humility-Proverbs 11:2
7. Practice the courage of obedience-Joshua 1:7
8. Pursue a lasting legacy- Galatians 6:10

I would prefer these eight to the author’s eight. But if you will note, some of his eight could be folded into the eight Scriptural references. Do read the Scriptural references and let me know what you think.

08/23/2023

What if you get hit by an automobile while you are in a company parking lot.
The general rule under the laws of workers’ compensation is that if the employer was the owner of the parking lot and you are on the way in or out of the parking lot either before work or immediately after work if you have been injured the injury would be considered “in the course of and scope of your employment.”
Odem was hit in his employer’s parking lot by a car driven by another employee. Odem sues Franklin, the driver of the car. Franklin argued that Odem could not sue him because the workers’ compensation law does not allow a worker to sue another worker for damages that arose out of the employment situation. But you say that Franklin was in the parking lot and not inside the employer’s building where the actual work was to be performed.
It just happened that Franklin was late for his shift, and it was discovered that this employer had a clear policy that tardiness was against company policy. You would think that if you are hit by a co-worker (probably speeding negligently) in the employer’s parking lot while driving in his own vehicle not a company vehicle, there would be no legal connection between Franklin’s bad driving and his labor for the company because he had not yet performed labor that day.
I believe the Court of Appeals got it wrong. The Court’s attempt to extend the place of business to the parking lot of the employer is a good attempt to reach coverage for parking lot injuries. But to prevent Odem from bringing suit for damages against a driver who negligently drives his car into another person goes way too far.
The Court of Appeals gets it right when and if Franklin negligently drives a forklift into Odem the moment Odem steps inside the company premises. That is not what happened here. Odem should be allowed to recover from Franklin’s auto insurance policy and not be banned solely because Franklin was in the parking lot of the employer before work began.