New Mexico Court Orders Employers to Pay for Medical Marijuana

The New Mexico Court of Appeals ruled that an insurer must reimburse a workers' compensation claimant for the cost of medical marijuana to treat his low back pain, even though the substance is illegal under federal law.

The court said the employer did not cite any federal law that would be violated by such a requirement and noted that the U.S. Justice Department has announced "a somewhat deferential enforcement policy" toward state marijuana laws.

New Mexico Gov. Bill Richardson signed into law a bill legalizing marijuana for medical use in the state in April 2007. The "Lynn and Erin Compassionate Use Act" permits cannibas production facilities licensed by the state Department of Health for distribution of marijuana to patients suffering from specific disorders, including severe chronic pain.

To read the full decision click HERE

New Ruling Expected on Lawyers' Communications With Doctors

 In July the Supreme Court of Georgia heard arguments in the case of McRae v. Arby's Restaurant Group, and the court's decision is eagerly anticipated by workers' compensation attorneys across the state. 

At issue is whether an injured worker can stop her employer's attorneys from having a private conversation with her doctor. 

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20% Late Penalties on Approved Liability Stipulations

 When an employer/insurer and an injured worker enter into a stipulated settlement agreement, the agreement, or "stip," is sent to the State Board of Workers' Compensation for approval. Once the stip is approved by the Board, the insurance company must issue payment within 20 days; if it does not it will owe an additional 20% late penalty. O.C.G.A. § 34-9-221(f).

Because of a recent decision by the Georgia Court of Appeals, it is now easier for an injured worker to collect the 20% late penalty when he or she enters into a stipulated (liability) settlement rather than a no-liability settlement. Why? Because in Brewer v. Wellstar et. al., the court ruled that the State Board of Workers' Compensation has no discretion, under O.C.G.A. § 34-9-15(b), to decide whether an employer/insurer must pay the 20% late penalty if they fail to pay settlement proceeds in a stipulated settlement within 20 days.

In Brewer, the parties filed a stipulated settlement agreement with the Board, and the Board approved the same. However, the insurance company never received the automated e-mail notice that the stip had been approved, and did not issue payment. After twenty days had passed, the injured worker's attorney requested that the 20% late penalty be imposed on the employer/insurer. The employer/insurer then issued payment, without a 20% late penalty, within one week of being notified that payment was late.

The Appellate Division of the Board found that because the employer/insurer did not receive notice that the stip was approved, payment was not due 20 days after the approval of the stip, and thus the employer/insurer could not be penalized for failing to issue payment within 20 days. The Court of Appeals overruled the Appellate Division's finding, however, and held that the Board's discretion to determine whether late penalties are owed applies only to no-liability settlements and not liability settlements.

Board Rule 103. Appeals to the Appellate Division

(a)  The time for application for review commences on the date shown on the notice of award and is computed as in paragraph (3) of subsection (d) of O.C.G.A. § 1-3-1.

(b)  Appearance before the Appellate Division shall be by brief only unless a request for oral argument is made at the time the application for review is filed by appeal or cross appeal.  Within 10 days from the date of the certificate of service on the application for review, the appellee or cross appellee may request oral argument.  Oral argument shall be limited to five minutes for each party.

(1)  Any party applying for review shall serve a copy of the application for review and enumerations of errors allegedly made by the Administrative Law Judge upon all opposing parties.  Failure to file enumerations of error with the Board may result in the dismissal of the appeal or cross appeal.

(2)  The party requesting review shall have 20 days from the date shown on the certificate of service of the application for review in which to file a brief.  The party requesting the review shall certify that a copy of the brief was served in person or by mail to all opposing parties on the date the brief is submitted to the Board.  Opposing parties shall then have 20 days from the date of appellant's or cross appellant's certificate of service to file reply briefs with the Board.  Briefs not filed in conformity with this rule will not be accepted except by permission of the Board.

(3)  Notices of Oral Argument, and other correspondence, will be sent by electronic mail and only to attorneys of record.  Whenever electronic transmission is not available, a Notice of Oral Argument, or other correspondence, shall be sent by mail.

(4)  Briefs shall generally follow the format required by the appellate courts.  Only the original of the brief is required to be filed with the Board. Briefs shall be limited to 20 pages, unless otherwise approved by the Board.

(5)  Where a case has been scheduled on a calendar for oral argument, no more than one postponement will be granted to reschedule the argument.  If the argument cannot be made within that time, the claim may be reviewed on briefs only.

(6)  Any party scheduled for oral argument shall notify the Appellate Division no later than 4:30 the day before the scheduled appearance if they do not intend to appear.

(7)  Amicus curiae briefs may be filed without permission any time before a decision is issued.  The amicus brief shall disclose the identity and interest of the person or group on whose behalf the brief is filed.

(8)  In a pending appeal before the Appellate Division, whenever the issues resolve, in whole or in part, or a case settles, the parties or attorneys shall immediately notify the Court Clerk of the Appellate Division: (1) first, by telephone call; and (2) if so instructed by the Appellate Division, by subsequent written or electronic confirmation. Any party or attorney who fails to follow this procedure, and who is unable to show good cause for such failure, may be subject to civil penalties, assessed attorney's fees, and/or costs.

(9)  When filing a motion for reconsideration, the parties or attorneys shall:
(1)  immediately notify the Court Clerk of the Appellate Division or the Board by telephone call;

(2)  use the ICMS doc-type labeled motion for reconsideration;

(3)  limit their motion to 20 pages, including briefs and exhibits, unless otherwise permitted by the Court Clerk or the Board; and

(4)  serve a copy on all counsel and unrepresented parties, along with supporting documents, including a separate certificate of service identifying the names and addresses served.

(c)  The Board will apply the law of Georgia regarding the tenure and character of newly discovered evidence required for the granting of a new trial.

(d)  The Board will not accept an application for review of an interlocutory order unless the Administrative Law Judge, in the exercise of his or her discretion, certifies that the order or decision is of such importance to the case that immediate review should be had. In the event the Administrative Law Judge certifies his or her interlocutory order for immediate review, in order for the Appellate Division to have jurisdiction under O.C.G.A. 34-9-103(a), a party must file an application for review with the Appellate Division within twenty days of the date of the original interlocutory order.

(e)  No person appearing before the Appellate Division shall engage in any undignified or discourteous conduct.

(f)  Upon determining that an appeal has been prosecuted without reasonable grounds, the Appellate Division shall have the authority to assess penalties and attorneys' fees against the offending party.

To return to the Workers' Compensation Rules Index, click on the "Rule" Button.

Board Rule 105. Appeals to the Courts

(a)  The prevailing party shall supply the Board with copies of the following documents:

(1)  Order of Superior Court disposing of an appeal;

(2)  Denial by the Court of Appeals or Supreme Court of an application for discretionary review;

(3)  Notice of appeal from Superior Court to Court of Appeals or Supreme Court where discretionary appeal is granted;

(4)  Denial of certiorari by the Supreme Court from a decision of the Court of Appeals;

(5)  Court of Appeals remittitur to Superior Court;

(6)  Judgment on remittitur from Superior Court when the Court of Appeals does anything other than affirm the judgment of the Superior Court.

(b)  The non-prevailing party shall supply the Board with the following documents:

(1)  Application to the Court of Appeals or Supreme Court for discretionary review of a judgment of the Superior Court;

(2)  Application to the Supreme Court for certiorari to review a decision of the Court of Appeals;

(3)  Notice from the Supreme Court of granting of certiorari from a decision of the Court of Appeals.

(c)  The party dismissing an appeal shall file a copy of the dismissal with the Board.

(d)  In the event of a settlement during the pendency of an appeal, it shall be the joint obligation of the parties to supply the Board with copies of all documents necessary to restore jurisdiction to the Board to consider the settlement.

(e)  Copies of the documents listed above shall be submitted to the Board by regular mail within five days of filing in the appropriate court.

(f)  Any party filing with the Board an appeal to Superior Court shall pay the reasonable copying and transmittal costs of the Board.  Upon good cause shown, the Board may waive the copying and transmittal costs.

To return to the Workers' Compensation Rules Index, click on the "Rule" Button.