Current Trends

I. Who Picks Up the Medical Treatment Check?

II. Health Insurers Resisting Payment of Medical Claims for Car Accidents

III. Health Insurers Demanding Part of a Patient’s Settlement Money

IV. Do Problems With Liability Necessarily Doom a Case ?

V. The Case of the Phantom Vehicle

VI. Term Limits in Non Competition Agreements Upheld by Georgia Supreme Court

VII. Misinterpretation of the Workers’ Compensation Benefit by Employers

VIII. Grandparent Custody and Grandparent Visitation



I. Who Picks Up the Medical Treatment Check?

Despite what you might be led to believe after watching television ads indicating that a check follows each and every wreck, it simply isn’t so. Many people falsely believe if they have been involved in any wreck or fender bender, then it automatically entitles them to receive remuneration, or in plain English, a check for the wreck.

 

If you are involved in a wreck, the only check you can initially count on with any certainty is your own automobile policy’s medical payment coverage. This is insurance you buy as part of your own auto insurance package. Medical payment coverage, or MPC, is insurance that pays for your immediate medical bills when you are hurt in an accident up to the dollar amount of coverage you bought with your policy. For people who don’t have medical insurance, this type of insurance can be of tremendous help because it will pay for your medical treatment as you incur the bills. Under MPC you do not have to pay the bills and wait for reimbursement at settlement.

 

However, confusion over the difference between MPC insurance and regular car insurance leads some people to believe that the at-fault driver’s insurance policy covers their medical bills as those bills are incurred and are a paid benefit owed to them because they have been injured by the at-fault driver. This is not true. Liability auto insurance may eventually pay those bills, but only after all the medical treatment has occurred and the injured party is finished with his/her medical treatment and ready to settle the case or take it to court in a lawsuit. To receive monies from an auto wreck for personal injury damages (not property damages), you must prove you have been injured, that your injuries required medical treatment, and that your claim has merit.

 

What this means to you, the injured party, is that if you are in a wreck of any type, if you feel you have been injured, then go directly to the emergency room or to a medical treatment provider listed on your medical insurance plan, if you are fortunate enough to have medical insurance coverage. If you have MPC (medical payment coverage), your treating physician or facility should bill that insurance provider first as the primary insurance. If you have medical insurance through your spouse or employer, that policy is normally the second insurance provider to whom the treatment is billed. (If you are on Medicaid or Medicare, read our essay on that topic.) But regardless of how badly you or your passengers are injured, the at-fault driver’s insurance company will not pay the medical bills of the non-ticketed driver, passenger(s), or any other injured parties in the wreck until all of those medical bills have been incurred and the injuries evaluated; and sometimes they will not pay even then, and a law suit must be filed. It is counterproductive to your best interest to settle any case or accept money in final payment for your injury if you are still facing additional treatment, which might be expensive or may prevent your being insurable in the future. Never settle your claim until you are through with all medical treatment, and only after you have asked for an experienced attorney’s evaluation. Even if the insurer tells you that you have reached their driver’s policy limit, and try to get you to settle for a minimal amount, an experienced attorney might be able to stack insurance policies or be aware of other liabilities that the insurance company may owe you but which they were under no obligation to disclose to you. No matter how nice the adjustor is or may seem, his/her job is to pay you the minimum amount possible in order to reduce his company’s bottom line liability.

 

Going back to our original discussion of the “instant check for wreck” myth, if you do not go for medical treatment, you will not receive an insurance check for injuries. Legitimate medical treatment validates a claim. There is no instant payment owed to you just because you were inconvenienced in the wreck, even if your car was damaged but you were not injured. You may be entitled to repair of your car’s damages, depending on whether the insurance company of the at-fault driver decides to accept your claim and not dispute it (as they sometimes do, even when the other driver got the ticket!). Insurance claims that may seem like clear liability to you may become complicated by the insurance company’s reluctance to pay a fair amount or their outright denial of your claim. It can become a time consuming nightmare. We regularly establish claims for people who have been told nothing is due them by the at-fault driver’s insurance company. An insurance carrier may say that you don’t have a claim, but they are not the final authority in these matters. We will evaluate your claim in a free consultation. Call us. We can help.



II. Health Insurers Resisting Payment of Medical Claims for Car Accidents


A common problem we hear frequently at Noel H. Benedict & Associates is that of health insurers in accident and other injury cases refusing payment. We also have become aware of doctors refusing to see the patient and submit the bill to health insurance. Unfortunately, many health insurance companies have taken the improper position that the health insurance policy does not provide coverage for injuries sustained in an automobile accident.

The claim is based on the incorrect notion that the insurance company for the motor vehicle at fault in the accident will pay the medical bills. That is not true in a specific sense. The insurance company for an at-fault party will make one payment to settle or resolve a case; and to arrive at that amount, medical bills and lost wages are part of the consideration but not the entire consideration. More importantly, ideally a case is not settled until a patient has concluded his treatment, yet doctors want to get paid at the time the services are rendered. The health insurance company must pay the claims in accordance with its health insurance policy. However, in an accident case, this unlawful position of the health insurance company is one reason the person involved in an accident needs an attorney.


III. HealthInsurers Demanding Part of a Patient’s Settlement Money

There is a second problem trend involving health insurance in the accident case. After a health insurance company pays the medical bills, they will usually seek reimbursement from their insured (the patient). The health insurance company will usually hire an outside company to seek such reimbursement, and this outside company will present the claim as if the accident victim has an absolute obligation to reimburse their health insurance company dollar for dollar what the health insurance company paid. Whether any or some reimbursement is owed depends on numerous factors. In most cases, despite the health insurance company’s claims, there is no requirement of reimbursement, as the matter has been expressly covered by a Georgia statute. There are some types of insurance, or programs which appear to be insurance, which are not governed by the Georgia statute, such as a self-funded ERISA plan. There, the question about reimbursement is slightly more complex. In Georgia the right of reimbursement for these self-funded ERISA plans is covered by a rule known as the “whole man rule,” which is applicable to the entire 11th District of the U.S. Court of Appeals. An injured claimant benefits from an attorney who can determine which insurer, if any, has the right of subrogation.

 

Noel H. Benedict & Associates can assist the injured person through this claims process. I would urge anyone who has been involved in a serious accident to have an attorney who is knowledgeable in these areas.



IV. Do Problems With Liability Necessarily Doom a Case

Often we are asked: “If the other driver, who I feel caused the accident, did not get a ticket, do I still have a case?” Noel H. Benedict & Associates recently settled a case like this one just before trial, obtaining a fairly sizable settlement for our client. The accident report had suggested that the person our client sued was not at fault, and our client’s own insurance company had paid for the property damage for the other person’s vehicle. For this reason how an accident report is written or who got a traffic ticket is not always a significant factor in how a case is resolved. In the situation just referred to, there was one independent witness at the scene of the accident who saw the entire accident and did not agree with the way the police officer had written up the accident report, or how the events occurred. This is not that unusual of an occurrence. Remember, the police officer usually arrives at an accident scene some significant time after it has occurred and has relied on what several people have told him happened. In those situations the witness’s own recollection of the accident may be more significant than the police officer’s recollection of what those witnesses have said.



V. The Case of the Phantom Vehicle

One question that often comes up is “If the insurance company won’t even pay for my car, can an attorney really make a difference?” The answer is “yes.” Not that long ago, I handled a case where my client was insured by the same company that insured the other driver. The other driver had swerved into my client’s lane of travel, but claimed they did so because a “phantom vehicle” had pulled out directly into their path. The other driver’s passengers asserted that is in fact what occurred. As a result of that, before we began representing our client, the adjuster for the car that hit him was refusing to pay, claiming that the accident was caused by the phantom vehicle. Our client’s uninsured motorist’s adjuster was refusing to pay, claiming that he did not believe that a phantom vehicle was the cause of the accident. Through our representation, the claim was ultimately paid for both the property damage and the injury claim.


VI. Term Limits in Non Competition Agreements Upheld by Georgia Supreme Court


At Noel H. Benedict & Associates, we get many calls from people who have signed what is called an agreement not to compete (or a Noncompetion Agreement) with an employer for whom they no longer work. The legality of these agreements has sometimes been called into question for various clauses contained within them. The Supreme Court has recently held that a Noncompetition Agreement which prohibits an employee from soliciting that employee’s former customers for a two year period after termination of employment is valid. This is true, even if it is not otherwise limited to a specific geographic area, such as where the employee worked.

For some period of time in Georgia, it was generally believed that a Noncompetition Agreement was not valid if it was not limited to a geographic location where the former employee could not compete with his employer. Otherwise, it would have placed an undue restriction on the employee’s ability to earn a living. However, a recent Georgia Supreme Court decision has clarified some competing legal precedent and has specifically held that a Noncompetition Agreement which focuses entirely on customers of the former employee whom that employee had contacted during his tenure with his former employer is a valid provision of a Noncompetition Agreement.

Before you sign an agreement that might be hard to live with later, call Noel H. Benedict & Associates and ask for a free initial consultation. Know your rights under Georgia law when it comes to something as crucial as your ability to make a living. Call us today at 770 336 1280.


VII. Misinterpretation of the Workers’ Compensation Benefit by Employers

Workers’ Compensation is an insurance benefit given to employees who have been hurt while on the job. However, there appears to be an increase of incidences in which employers misinform injured employees about their eligibility for workers’ compensation.

I have received a number of calls from injured workers whose managers or human resources directors have given their injured employees either wrong or misleading information as to whether an employee’s injuries are covered under workers’ compensation.

The following are a few hypothetical examples of calls I am getting from injured workers and what I am seeing happen to them in the workplace:

Case Number One: An employee fell in a parking lot in the building operated by the employer. The employer claimed that the employee had not yet clocked in and therefore was not eligible for workers’ compensation. This, of course, is not true. An employee parking his/her car in the employee parking lot and heading in to report to work is within the scope of employment. Therefore, an injury in the parking lot is covered by Workers’ Compensation.

Case Number Two: An employer denied the claim of an employee who had technically clocked out, but who, while still in uniform, assisted the manager by carrying receipts from the cash register back to the manager’s office, where the employee unfortunately then slipped and fell. This injured employee is clearly covered by workers’ compensation. The employee was not engaging in a social function but was actually performing a service, something that was part of the employee’s job when he was “on the clock.”

Case Number Three: Another employee was denied workers’ compensation benefits initially when the employer alleged the employee was a part time employee rather than full time. The Workers’ Compensation statute covers part time as well as full time employees, and the medical benefits are the same for both groups of employees. The only difference is that a part time employee, obviously, has a smaller wage loss claim than a full time employee, but the part time employee is still entitled to all of the medical benefits.

Whether these mistakes are intentional or true misconceptions on the part of the employers is not clear and varies from case to case. If you are an injured worker who has been told by your employer or resource manager that your injury does not qualify for workers’ compensation benefits, ask for a free initial consultation with Noel H. Benedict & Associates or another qualified attorney. You deserve to be treated to all benefits for which you are eligible, especially at such a difficult time as when you are injured and possibly unable to work. Call us today at 770 336 1280.



VIII. Grandparent Custody and Grandparent Visitation

How can a grandparent in Georgia take custody of a grandchild? Are grandparents entitled to visitation? How do I tell which is the best solution? Is it a right or a privilege? Is there a difference between grandparent custody and grandparent visitation. To understand the issues you need to understand the Georgia statute regarding this complex issue of grandparent custody and grandparent rights.

Grandparent custody and grandparent visitation are two very different matters. Obviously grandparent custody means that grandparent(s) now has custody of the child and the parent will owe the grandparent(s) child support. Grandparent visitation in a court setting would mean a court order that gives the grandparent visitation with the grandchild. In this discussion we will look first at Grandparent Custody and then Grandparent Visitation.

Georgia has a specific statute entitled O.C.G.A. § 19-7-1 (b.1) that governs the right of a grandparent to seek custody of a grandchild from that child’s parent. That statute deals with custody actions involving a child, in which one Party to the custody action is the parent of the child and the other Party is either a grandparent, great-grandparent, uncle, aunt, great aunt, great uncle, sibling, or adoptive parent. In a custody dispute between a parent and a grandparent (or those other limited individuals mentioned above), parental power may be lost by the parent if the court hearing the issue of custody, in its sound discretion and taking into consideration all of the circumstances of the case, determines that an award of custody to a third party (such as a grandparent) is for the best interest of the child or children and will best promote that child or children’s welfare and happiness. The statute provides there will be a rebuttable presumption that it is in the best interest of the child or children for custody to be awarded to the parent or parents of such child or children, but this presumption may be overcome by a showing that an award of custody to such third person is in the best interest of the child or children. The sole issue for determination in any such case shall be what is in the best interest of the child or children.

In actuality, though, this statute can not be taken exactly at face value. The constitutionality of that statute was in question before the Georgia Supreme Court in an important case called Clark v. Wade; 237 Ga. App. 587; 544 S.E. 2d. 99 (2001). The issue before that court was whether the statute was constitutional in how it applied to the taking away of a parent’s parental rights to a child.

The court determined that the statute was constitutional when it was applied with the following two-prong test: First, the third party, that being the grandparent(s), must prove by clear and convincing evidence that the child will suffer physical and emotional harm if custody were awarded to the biological parent. This is important because the “clear and convincing” evidence test is not expressly stated in the statute. Once the court has determined that there is clear and convincing evidence that the child will suffer physical or emotional harm if custody is awarded to the biological parent; then the third party, that is the grandparent(s), must show that an award of custody to the grandparent will best promote the child’s welfare and happiness.

Of course, in cases where a child has been physically abused by a parent, then meeting the first prong of the test for a grandparent to get custody of the child should be relatively easy. The obviously more difficult part is where the long term harm to the child which must be proven by clear and convincing evidence is psychological harm. Obviously, one way to prove psychological harm is with a psychological evaluation by a qualified psychotherapist. In a custody dispute, a judge specifically has the right to require a psychological custody evaluation for the family or an independent medical evaluation. Another way psychological harm might be proven is through the testimony or observation of the Guardian ad Litem appointed by the court to determine what would be in the best interest of the child or children. In fact, it appears that in at least one recent Appellate Court case, the determination that the child’s being in the mother’s custody would adversely affect the child’s mental well-being seemed to have primarily come from the Guardian ad Litem. That case is Lidely v. Bowen; 272 Ga. App. 479; 612 S.E. 2d. 625 (2005).

Each custody dispute case must be evaluated by its own set of facts. Decisions made by courts on grandparent custody differ from each other for different sets of facts. The court in these determinations is required to look at all of the facts, not just opinions. Therefore, these kinds of cases can be quite complex and require a direct conversation between the attorney and grandparent-client with an initial evaluation and really can not be subject to a general evaluation.

Grandparent visitation is an entirely different matter. Grandparent visitation in a court setting would mean a court order that gives the grandparent visitation with the grandchild, such as one weekend per month, some holidays, and vacation time visitation. As an example, the statute on grandparent(s) visitation is different and not subject to constitutional challenge because it does not take custody from a parent. There is, however, a Georgia statute on grandparent visitation. The statute which expressly encourages grandparent visitation is found at O.C.G.A. § 19-9-3(d). The statute reads, “It is express policy of this state to encourage that a child have continuing contact with parents and grandparents who have shown the ability to act in the best interest of the child and to encourage parents to share in the right and responsibility of raising their child after such parents separated or dissolved their marriage or relationship.” Sometimes parents are able to recognize the need for the child to maintain a relationship with his or her grandparents, whether paternal or maternal relatives; but when communication breaks down during the divorce process or afterward, a grandparent may need to ask for visitation through a court of law.

Issues of grandparent visitation or grandparent custody are complex issues which are best handled by a competent attorney. Noel H. Benedict & Associates is ready to help you find a legal remedy for your particular situation.

Above specific legal cases cited from the Official Georgia Code, Annotated.