Report of the Georgia Governor’s Wokers’ Compensation Review Commission

The Commission appointed by Governor Barnes consists of fourteen members, three ex officio members, and seven advisory members. This group includes academics, members of the legislature, claimants attorneys, defense attorneys, representatives from the insurance industry, organized labor, the textile industry, and government agencies. It was charged by the Governor to review and evaluate Georgia’s laws and procedures affecting workers’ compensation. The Commission’s primary goal was to prepare an accurate description of the current workers’ compensation system in Georgia. More specifically, this Report provides detailed information regarding the number of claims, benefits paid to employees, employer costs, and insurance profitability. It also compares workers’ compensation costs and benefits in Georgia with those in other states, particularly our Southeastern neighbors. Our purpose is to determine whether workers’ compensation costs place Georgia employers at a competitive disadvantage in regional and national markets. In preparing this Report, the Commission relied on the most recent available reports and data collected by organizations such as the National Academy of Social Insurance, the National Council on Compensation Insurance, the Workers Compensation Research Institute, the United States Department of Labor, and the Georgia State Board of Workers’ Compensation.Workers' Compemsation, wages, unemployment, disability, indemnity

The Impact of the Patient Protection and Affordable Health Care Act of 2010 On State Workers’ Compensation Systems

The relationship between national health care reform and workers’ compensation is not a new issue. Whenever there is a serious discussion about some form of national involvement in the delivery or financing of general health care, the question arises: how does workers’ compensation fit in to this plan? The question is a logical one for state workers’ compensation and federal health care reform share a number of common concerns. Both strive to provide meaningful access to care; both aim to stem the tide of rising costs; and each is concerned about how to coordinate with the other. But, the devil is in the details. The 1972 Report of the National Commission on State Workmen’s Compensation Laws briefly spoke to this issue. That Report took the position that it would be unwise and unnecessary for any national health insurance program to assume workers’ compensation medical costs. In the view of the Commission, folding workers’ compensation medical costs into a national health insurance program “would be inconsistent with a central tenet [of workers’ compensation]...that the costs of work-related injuries and diseases should be allocated to the responsible source, and will be unnecessary if our recommendations for medical care under workmen’s compensation are adopted. The Clinton Administration tackled national health insurance again in the 1990\u27s. The administration’s initial proposals favored merging the medical component of workers’ compensation into a federal health care system. Proponents of “full integration” or “merger” believed that the unification would reduce administrative costs which would produce savings that would offset costs to employers in supplying health insurance. This, in turn, might help generate political support for expanding the federal role in health care. This proposal failed to garner any significant support outside of the White House. In fact, it prompted considerable opposition. Business owners apparently concluded that shifting medical costs from workers’ compensation to general health insurance would not produce any real savings. The Clinton administration backed off of this “full integration” approach and instead advanced other proposals that had less encompassing treatments of workers’ compensation. One of the proposed bills would have retained the employer’s obligation to provide medical benefits under workers’ compensation laws, but would have pre-empted state “choice of provider” laws and empower employees to select providers from any federally approved health plan. Other proposals simply required workers’ compensation medical providers to comply with various federal laws. Of course, none of these bills were enacted into law. The reforms proposed first by candidate and then President Obama, took slightly different forms at different times. Candidate Obama forcefully advocated for a form of a “national health insurance” which President Obama later toned down into a “public option.” At no time did the Obama proposals call for the full integration of workers’ compensation into a national health care system. Rather, they called for the creation of a federal insurance provider that would be, in essence, an additional available payer, much like Medicare. As we know, the public option did not survive the political battle. The law that was ultimately passed is known as the Patient Protection and Affordable Care Act (PPACA) (H.R. 3590) and the modified, as enacted, Reconciliation Act of 2010 (H.R. 4872). Just how will this federal law affect state workers’ compensation systems? As discussed in more detail below, the federal legislation will have little direct impact on workers’ compensation and as far as indirect effects are concerned, preliminary commentary is admittedly speculative

REMEMBRANCE

I was most fortunate to have known Anne Dupre in a variety ofsettings. I first met Anne when she was a 1L student in my Tortsclass. We remained in touch during her two clerkships and a stintwith a Washington, D.C. law firm. When Anne decided to becomea law professor, I helped recruit her to our faculty. We bothtaught first year courses, often in the same section. Anne becameone of my closest friends and colleagues. As I reflect on ourrelationship that covers many decades one theme sticks out: Annetook things seriously. She walked the walk. Whether it was herstudies, work in the courts and the law firm, classroom teaching,scholarship, friendships, or golf, Anne took it all seriously. I do notmean to suggest that she lacked humor or joy. On the contrary,Anne saw the humor in things more sharply and experienced thejoy of life more keenly because she cared so deeply. She tooknothing for granted.Anne was the student every professor hopes to have. She wasattentive, prepared, and inquisitive. She was the student whocame to you at the end of class to follow up with a question or two-not in the perfunctory way of an annoying gunner, but because shehad thought about the materials carefully (as we instruct ourstudents to do) and remained uncertain or doubtful despite mybest Socratic efforts to clarify. Anne posed difficult questions forwhich I often did not have an answer. Her questions made methink. This was not a game of gotcha, but a sincere effort on herpart to make better sense of the murky world we call law

Of Frivolous Litigation and Runaway Juries: A View from the Bench

The political case for tort reform is based in large measure on the perception that there are too many frivolous law suits and too many excessive jury awards. Where there is considerable empirical evidence casting doubt on both these propositions, they remain the linchpins of the tort reform movement. Scholars, lobbyists, and legislators all have had a voice in the tort reform debates. The viewpoints of trial judges, however, have been largely absent. This is unfortunate because trial judges are the government officials with the closest view of the tort litigation system. They are the ones who see tort litigation on a day-in, day-out basis and are therefore uniquely qualified to comment on the extent of problems in the system. This study begins to fill this void by reporting on the views of Georgia Superior Court and State Court judges on tort litigation in their courts

Who Owes How Much? Developments in Apportionment and Joint and Several Liability Under O.C.G.A. § 51-12-33

Without question, O.C.G.A. 51-12-13 as construed in McReynolds and Couch ushers in a new era in Georgia tort law. It topples the old regime in which multiple tortfeasors were held jointly liable when their combined acts of negligence injured an innocent plaintiff. The new regime is one of apportionment and liability limited to one\u27s personal share of fault. Fault may be apportioned when it previously could not. It may be apportioned to those who are immune, to those who are unknown, and even to those who intentionally injure an innocent plaintiff. The practical consequence of this regime change is to place the risk of the uncollectible share upon the innocent plaintiff. Fewer innocent plaintiffs willb e fully compensated for their injuries, and liability incentives for defendants will be reduced. While important questions remain to be resolved, the big picture has emerged: apportionment, not joint liability, is the new norm

The Status of Tort Reform (S.B. 3) 4 Years Later

Overview of tort reform changes under Georgia S.B. 3 (2005

Foreword: Symposium Re-Examining First Principles: Deterrence and Corrective Justice in Constitutional Torts

This Symposium provides a forum for a careful and thoughtful consideration of whether constitutional tort law can deter wrongdoing and is consistent with principles of corrective justice

Res Ipsa Loquitur and Medical Malpractice in Georgia: A Reassessment

Part II of this Article addresses the threshold issue of when a court may consider a medical accident as one that ordinarily does not occur in the absence of negligence. This part criticizes the blanket rejection of res ipsa loquitur in Georgia malpractice opinions. Judicial hostility toward res ipsa loquitur in these cases is based in large part on a misunderstanding of the so-called presumption of due care. This part then explains how an inference of negligence may be harmonized with traditional fault-based malpractice doctrine. Finally, this part addresses judicial concerns about the sufficiency of evidence. It is argued that circumstantial evidence of negligence is no less inherently trustworthy than direct evidence. Part III discusses the role of res ipsa loquitur in malpractice cases involving multiple defendants. It is demonstrated that the selection between a narrow or expansive use of res ipsa loquitur in this situation depends on value preferences distinct from the circumstantial evidence of origin of the doctrine. The particular value choices do not depend on whether negligence is inferable from the accident. Rather, these choices involved the broader question of what objectives underlie tort law generally. The relevant policy considerations and some of their implications are discussed in an effort to provide the framework for future decisions

Rule 68 Offers of Judgment: The Practices and Opinions of Experienced Civil Rights and Employment Discrimination Attorneys

Hosch Professor Tom Eaton shares the results of a survey, conducted with Mercer University\u27s George Professor Harold Lewis, on the use of Federal Rule 68 Offers of Judgment