Personal Injury & Wrongful Death

Whenever uninformed members of the public hear the words “workers compensation” “on-the-job injury” and “fraud” they almost always associate those words with an injured worker; however, most Georgia injury lawyers know that employers and insurers are sometimes guilty of fraud when it comes to workers compensation claims.
In all of our years of representing Georgia’s injured workers, one case of employer fraud stands out above all others. Several years ago we represented a young lady who worked for a large architectural aluminum building products corporation who provided systems for the commercial construction industry. Our client, who had been employed in their plant for many years, injured her back and requested authorization to see a doctor. After weeks of being ignored, the client finally called her boss and advised him that she was going to go see her own doctor. Thereafter, the plant safety manager called her at home and told her not to make such an appointment and advised her that he was going to set up an appointment with their “company doctor”. A couple of weeks after that conversation, the young lady retained our firm to represent her and we filed a Notice of Claim and a Request for a Hearing with the State Board of Workers’ Compensation. The depositions of her supervisor and the plant’s safety director were scheduled. Incredibly, both of the employer’s representatives denied, under oath, having notice of the employee’s on-the-job injury and claimed that the first notice they had came upon receipt of the Notice of Claim and a Request for a Hearing they received from our firm. What neither of the employers managers knew was that the employee had recorded the conversation with the safety manager. With the unrefutable evidence of the employer’s fraud and misrepresentations clearly documented, the employer/insurer settled the case with the injured worker under very, very favorable terms.
In the State Board of Workers’ Compensation, there is a Fraud and Compliance Unit which is charged with the responsibility of assisting the Chairperson of the State Board in administratively investigating allegations of fraud and non-compliance and in developing and implementing programs to prevent fraud and abuse. Georgia law provides, in part, that any person who knowingly and intentionally makes any false or misleading statement or representation for the purpose of facilitating the obtaining or denying of any benefit or payment under the Workers’ Compensation Act may be assessed a civil penalty of not less than $1,000.00 nor more than $10,000.00 per violation.

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In the typical case in civil litigation, the winning and losing sides are responsible for their own attorney’s fees. There is an exception to this rule under Georgia law. If a party acts in bad faith in the underlying transaction (committing acts of fraud and/or attempting to damage the Plaintiff, as an example) or is guilty of stubborn litigiousness (pursuing claims or defenses based on frivolous legal and factual defenses) then in that event, attorney’s fees can be awarded. The Code Section in this regard is O.C.G.A. § 13-6-11.
Another unique provision of Georgia law is that a court may consider a contingent fee agreement and the amount of fees it would generate as evidence of “usual and customary fees” in determining both the reasonableness and the amount of award of attorney’s fees. In other words, if a victim in a personal injury suit should be further victimized by the bad faith and stubborn litigiousness of the person who caused their injuries, they may be entitled to attorney’s fees as part of their damages and can use a contingent fee contract with their own attorney as evidence in support of their claim.
If an innocent victim in a personal injury case is subjected to bad faith in the underlying transaction through acts of misconduct, sabotage, spoliation of evidence or false testimony and/or should be subjected to frivolous defenses and is caused unnecessary trouble and expense in the litigation process, then not only should they seek compensation for the personal injuries sustained as well as medical expenses, lost wages and other compensatory damages, they should also seek to recover attorney’s fees. In this regard, their own attorney can testify that the contingent fee agreement is a reasonable and customary arrangement in such cases and that the award of contingent fees would be the reasonable and customary and necessary amount of fees to pursue justice for the client. There is a good Georgia case which holds that the contingent fee agreement in and of itself is “a valid indicator of the value of attorney services.” See Home Depot USA v. Tvrdeich, 268 Ga. App. 579, 584, 602 S.E. 2d 297 (2004).

Not a day goes by that the Georgia injury lawyers at Finch McCranie, LLP don’t read about tragic deaths from automobile accidents, tractor trailer accidents and motorcycle accidents. On Wednesday of this week a popular Georgia High School coach, 46 year old Anthony Glen Barge, was riding motorcycles with his brother-in-law near the Lake Wedowee, Alabama. They were reportedly on the way to visit relatives in the area. According to The Anniston Star, Barge was riding his 2001 Kawasaki motorcycle when he turned too wide on a curve and struck a Toyota SUV. Unfortunately, Barge was killed on impact.
Barge leaves behind his wife his wife, Cindy and seven children. Two of his sons attend Carrollton High School where he was had been employed as an assistant football and baseball coach for almost ten years.

Another dangerous product recall by Federal Regulators last Thursday may signal the end of drop-side cribs that most of us have known and used for decades. According to an article by the Chicago Tribune, the Feds recalled another two million drop-side cribs. The moveable sides that raise and lower, making it easier to access babies have repeatedly malfunctioned leading to numerous tragedies around the country. The problem with these cribs is that when the sides separate from the crib, babies’ bodies can slip into the resulting gap. Their heads can get trapped and they have been known to hang to death or suffocate. According to the U.S. Consumer Product Safety Commission, at least 32 children died when their drop-side cribs malfunctioned and another 14 babies’ deaths may be linked to these cribs.
According to the article, more than 250 consumers have reported that the side rails failed on these cribs which were manufactured between 2000 and 2009.

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“When a vehicle is supplied by an employer for the mutual benefit of himself and his employee to facilitate the progress of the employee’s work, employment begins when the workman enters the vehicle and ends when he leaves it on the termination of his labor.” This statement is an exception to the general rule that coming to or going from work is usually not considered to be work within the scope of employment. However, if an employer furnishes a company owned vehicle to an employee for his use to come to work and be on call for the master’s business 24/7 either via a radio, dispatch system, cell phone or other type of communication device, then in that event, a jury question is present as to whether an employee coming to or going from work is acting within the scope of his employment.
If an employer allows an employee to take a company vehicle home every evening so that it will be available for the employee to perform his duties on an expedited basis the very next morning or if the employee’s truck is furnished with a two-way radio, as an example, where the employee is subject to the direction and control of his supervisors whenever they wish to communicate with him, and/or if the employer furnishes fuel and provides the truck for the mutual benefit of both the employer and employee, under any of these circumstances, there may be an exception to the general rule that an employee typically is not working for his employer until he arrives at the office.
Most of the cases that deal with an employee coming and going to work do not deal with employees driving company vehicles. Under Georgia law, if an employee is involved in an accident while driving an employer’s vehicle, a presumption arises that the employee was on the business of the master. The burden is upon the master to show that the employee was not. If the truck was furnished 24/7 so that the employee would be available for call and/or available to the employer and/or if the vehicle is used as a rolling billboard or advertisement for the employer’s business, then clearly under such circumstances, the vehicle is being used both for the benefit of the employer and the employee.

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Lithium battery cells are very small and sometimes look like a silver quarter. Unfortunately, these batteries are omnipresent and found in virtually every American household, whether it be in remote controls, watches, garage door openers or children’s books. Unfortunately, the tiny batteries that operate all of these devices can be extremely deadly to young children who may swallow them. While there are federal laws that require toys that use these batteries to have battery compartments that are locked with screws, unfortunately, the batteries can be found in a variety of devices used by adults where children can access them. If a child swallows a lithium battery cell and begins having symptoms of stomach disorders, etc., the diagnosis can be extremely difficult to make and before the diagnosis is made, fatalities can ensue from irreversible damage to the gastrointestinal tract.
Obviously, prevention is the best cure here. Parents should be on notice to protect their children from these small battery cells. Any device that has such a battery must have screws on it otherwise it is potentially dangerous to a child that get a hold of it. While more federal rules and regulations may be necessary for these products, particularly since they are so omnipresent and until such time as more rules are enacted, parents need to become aware of these hidden dangers in their homes.
Because these devices clearly can endanger children, product manufacturers must also take it upon themselves to make sure that their products are safe. By making the batteries difficult to remove without a screwdriver, manufacturers can render these very useful products all the more safe and protect young children who otherwise might manually manipulate a device as is normal for any child. If a battery can be removed due to manual manipulation alone, respectfully, the products may be unsafe due to the foreseeable dangers that can be caused to young children by them.

Georgia injury lawyers have seen the devastation created by motorists who drink and drive. Many of the most serious automobile accidents and trucking accidents are caused by drunk motorists. A large number of the offenders are repeat or habitual offenders. Several years ago, our firm represented the mother of a young man in a Federal Tort Claims Act wrongful death case. The young man, who was walking home from work on the shoulder of the road, was struck and killed by an FBI agent driving a bureau car who left the scene of the accident. Our investigation would later show that the agent had just left a bar after a night of drinking. The police officer who showed up at his home later that evening recognized the agent because she had previously charged him with DUI on the same road earlier that year. A Twelve Step Recovery book was found on the seat in his car.
A new Georgia law is ratcheting up the penalties for such repeat offenders by making the crime a felony. In order for the charge to be a felony, a certain number of offenses within a certain time period will qualify a driver for the enhanced charge. In the case of DUI, four arrests and three convictions in one year will earn you a felony.

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A Springfield Georgia automobile accident resulted in the wrongful death of a 17 year old Springfield teenager, Whitney Newman, in the early morning hours last Sunday morning. According to the Savannah Morning News, the teen was a backseat passenger in a Chevrolet Tracker which lost control and flipped over several times, ejecting some of its five passengers. Although authorities did not initially know why the driver lost control of the vehicle, the Georgia State Patrol Specialized Collision Reconstruction Team was investigating. At least two other occupants of the vehicle sustained life-threatening injuries as a result of the accident and they were transported to Memorial University Hospital in Savannah.

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One of the realities of the Federal Tort Claims Act is that the fees for counsel are limited. If the case is settled pre-suit, the fees are limited to twenty percent (20%). If the case goes to trial before the District Court by way of a bench trial, the fees are increased to twenty-five percent (25%) of the award. As is true of most personal injury claims, attorney’s fees are payable from the amount of the recovery, not in addition to it. The United States is also liable for court costs just as a private party would be, however, attorney’s fees are not considered to be court costs.
As might be imagined, it is difficult to sue the United States in a complex medical malpractice case in a hypothetical claim involving the Veterans’ Administration because in such a case counsel will be limited to a recovery of twenty-five (25%) of attorney’s fees. This is the standard fee that attorneys receive in workers’ compensation cases and is not a significant inducement for counsel to take a complex medical malpractice case involving the government. Nonetheless, Congress has limited the attorney’s fees that one may obtain in these cases and thus the most that an attorney can recover is twenty percent (20%) if the case is settled pre-suit and twenty-five percent (25%) if presented to the District Court via a bench trial.

Georgia medical malpractice cases have become increasingly difficult to bring as the legislature enacts more and more restrictive laws. A fact which many do not know is that patients injured by highly negligent actions in Georgia emergency departments have no right of recovery. This is due legislation which established a gross negligence standard which governing the actions of emergency room personnel.

This standard has been interpreted by the Georgia courts as requiring almost intentional conduct.

The extreme unfairness of this law is illustrated by a recent incident occurring at a VA hospital in Missouri. The VA hospital is under fire because it may have exposed more than 1,800 veterans to life-threatening diseases such as hepatitis and HIV.