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Attorney Compensation Middle Tennessee Worker - PDF

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					  Volume 1, Issue 1

  December 2008                                                       The Mississippi Bar Workers Compensation Section




                       Our Work and Our Clients
                           Letter From the Section Chair
  Special points of
      interest:                  This is the first ever e-        Jim Anderson, one of
                           newsletter of the Workers’        our section members, is
• The Employer/Carrier     Compensation Section, and         the chair of the MS Work-
                           I am most appreciative of         ers’ Compensation Educa-
  Attorney’s Perspective   Amanda Green Alexander’s          tional Association and is
                           hard work putting it to-          hard at work on the annual
• The Claimant’s           gether. Please remember           conference scheduled for
  Attorney Perspective     to thank Amanda the next          April 22-24, 2009, at the
                           time you see her.                 Beau Rivage in Biloxi,
• Views from the Bench           Your new executive          MS. Jim has requested
                           committee held an organ-          that the section be respon-
• Kids’ Chance             izational meeting on Sep-         sible for one of the educa-
                           tember 5, 2008, to discuss        tional programs at the con-
• Calendar of Events       plans and goals for the new       ference, and the executive             Betty Arinder
                           year.     Our two primary         committee has agreed. We
                           goals are to strengthen the       are working with Jim to
                           relationship between the          plan an informative pro-       tournament as she has
                           Section and the Mississippi       gram for the attendees of      details. Lydia Quarles and
                           Workers’ Compensation             the conference. We also        Judge Lott have agreed to
                           Commission and to provide         voted to establish and pre-    once again organize the
                           more service to our mem-          sent at the conference the     annual Power Behind the
                           bers.                             Kenneth G. Perry Profes-       Throne seminar for work-
                                                             sionalism Award. A com-        ers’ compensation parale-
                                 The executive commit-       mittee consisting of mem-      gals. The seminars that
                           tee voted to move our sec-        bers of the section from the   they and others have pro-
                           tion meetings to the Com-         north, south and central       vided in the past have been
                           mission.      Chairman Wil-       sections of the state as       popular with the parale-
                           liams has graciously al-          well as your chair and a       gals, and I am sure they will
                           lowed us access to the Full       representative from Shell      not disappoint with the
                           Commission hearing room           Buford will set criteria for   2009 program.         Please
                           for our meetings. We will         the award, accept nomina-      encourage your paralegals
                           hold quarterly meetings to        tions from the members         to attend.
                           which all section members         and select the recipient of
                           are invited. The meeting                                              In closing, I would like
                                                             the award. You will receive    to encourage each of you
                           dates are December 1,             notification of the criteria
                           2008; March 2, 2009; and                                         to let me or other members
                                                             via email and be asked for     of the executive committee
                           June 1, 2009, at 4:00 p.m.        nominations after the first
                           Each meeting is scheduled                                        know of any suggestions
                                                             of the year.                   you may have to make our
                           for Monday, because the
                           members of the executive               Another of our section    section more useful to its
                           committee hope that more          members, Lindsay Varna-        members. We are all here
                           of the judges and commis-         doe, has agreed to chair a     to serve the section.
                           sioners will be able to at-       committee that will be re-
                           tend the meetings. We             sponsible for organizing a
                                                             tennis tournament to raise     Sincerely yours,
                           also hope for more section
                           member availability. After        money for the Kids’ Chance     Betty Burton Arinder
                           each meeting, we will ad-         Scholarship            Pro-
                           journ to Nick’s for social        gram. Lindsey will provide
                           time.                             more information to the
                                                             members regarding the
PAGE 2                                                                                         OUR WORK AND OUR CL IENTS




                             The Employer/Carrier Attorney’s Perspective
                             By: Lindsay Varnadoe
                                    Greetings Section         ion as to how the case
                             Members! When I was              should ultimately be re-
                             asked to write this article, I   solved. I have discovered
                             wasn’t exactly certain how       that the most reasonable
                             to best approach the topic.      result for every claim can
                             Would this need to be a          usually be found some-
                             proper legal article with        where in the middle of the
                             cites and footnotes? Or          Claimant’s second or third
                             could I just write what was      counter offer and my initial
                             on my mind and see how it        offer of settlement.        Of
                             was received? I’ve opted         course, it may take us sev-
                             for the "write what’s on my      eral months (or years) to
                             mind" and will hope for the      reach that stage, but                  Lindsay Varnado
                             best.                            we get there eventually.
                                    I have been practicing          As attorneys, I think it
                             in the workers’ compensa-        is vital for us to remember
                             tion arena for almost 4          that when we receive these
                             years now. During that           files from our clients, we       About the Author
                             time, I have learned one         aren’t just receiving claim      Lindsay E. Varnadoe, is
                             very important lesson for        notes, some medical re-          currently the managing
                             defense attorneys to re-         cords and a Petition in          attorney for the Jackson,
                             member: you aren’t just          need of an Answer. We’re         MS office of Allen, Kopet &
                             dealing with papers and          receiving an injured per-        Associates, Inc., a south-
                             deadlines,            you’re     son, their family (if they       east regional law firm
 “..when we receive these                                                                      based out of Chattanooga,
                             also dealing with people.        have one), their attorney,
  files from our clients,    Too often, I think that we       their physicians and the list    Tennessee. She primarily
                             treat our files as well, just    goes on. Because the work-       works in the areas of work-
  ….We’re receiving an                                                                         ers’ compensation defense
                             files. Pleadings, correspon-     ers’ compensation section
   injured person, their     dence, medical records,          is small and close knit, it is   and general insurance
family (if they have one),   affidavits, interview sum-       very important to deal with      defense. She is a member
                             maries-the things that           all of these individuals with    of the Mississippi Bar Asso-
    their attorney, their    make up file number 123-         respect and honesty as           ciation, the Madison
  physicians and the list    45678. But this isn’t just a     your paths will likely cross     County Bar Association,
                             file; it’s also a person-most    numerous times in the            DRI, and is the current Vice
        goes on…”            times numerous people.           future. And honestly, re-        Chair for the Workers’
                             When a defense attorney is       membering those two              Compensation Section of
                             assigned to a file, he or she    things makes it so much          the Mississippi Bar.
                             is not only given the task of    easier to do your job and
                             designing a defense strat-       gain the best result for your
                             egy; they are also receiv-       client (well, at least in the-
                             ing a claims adjuster, their     ory it should).
                             supervisor, a Claimant’s               I hope that we all re-
                             attorney (along with the         member that our work is
                             Claimant), an administra-        important and the deci-
                             tive judge, and all the sup-     sions we make affect peo-
                             port staff those positions       ple’s lives. I’ll end with a
                             entail. Keeping everything       saying I heard from my
                             cordial and communication        mentor, Jim Anderson, at
                             lines open between all of        least a thousand times
                             these parties is sometimes       while we worked together,
                             akin to walking a tight rope     "Let’s go do good."
                             with no safety net. People,
                             you better have good bal-
                             ance because each party
                             usually has their own opin-
 VOLUME 1, ISSUE 1                                                                                               PAGE 3




The Claimant’s Attorney Perspective
By Carlos E. Moore
      As a claimant’s attor-    injured until proven a ma-
ney for the past few years, I   lingerer. Lately, it seems to
have taken great pleasure       me that most claimants
in helping the truly injured    are presumed to be malin-
and downtrodden get some        gerers until proven actually
relief under the Mississippi    injured on the job.
Workers’ Compensation                As a claimant’s attor-
Law, codified at 71-3-1, MS     ney, I can not place all the
Code of 1972 Annotated.         blame for the current
While helping the other-        worker’s compensation
wise powerless in our great     climate on other profes-
state of Mississippi brings     sionals in the workers’
me great joy, I am often        compensation arena.         A          Carlos E. Moore
offended by the growing         few bad apples have his-
skepticism of others in the     torically spoiled the entire
worker’s compensation           bunch. I recognize that
arena, i.e. HR profession-      there have been a few
als, claims adjusters, third    malingerers that have tried     About the Author
party administrators, medi-     to beat the system but          Attorney Carlos E. Moore, a
cal professionals and yes,      from my experience that         Moss Point native, is a solo
defense counsel on occa-        has been the exception          practitioner and principal
sion. There is just so much     and not the norm. In Mis-       of Moore Law Office,
animus towards claimants        sissippi, we like to hitch up   PLLC which has offices
these days. I just don’t        our britches as Governor        in both Grenada and Jack-
believe that most would         Barbour loves to say and        son, Mississippi. Carlos       “I recognize that there
intentionally injure them-      earn an honest day’s pay        was recently named as the
selves to get 2/3rds of         for an honest day’s work        “2008 Young Lawyer of the           have been a few
their average weekly wage       for the most part. That is      Year” by the MS Bar Young       malingerers that have
which is capped at the          our nature and we must          Lawyers Division. He is very
state’s average and then                                        active in several bar asso-    tried to beat the system
                                not forget that when one
have to jump several hur-       has the misfortune of being     ciations, including the        but from my experience
dles just to get quality        injured on the job, he does     American Bar Association,
healthcare. We, Mississip-                                      National Bar Association,
                                                                                                   that has been the
                                not become a part of the
pians, have better things to    bad element of the state.       The Mississippi Bar, Mag-       exception and not the
do with our time.               That individual deserves        nolia Bar Association, Mis-             norm.”
      If you are reading this   respect and all of our sup-     sissippi Association of Jus-
article, I trust that you are   port to get back up to          tice, and the Grenada
involved in some aspect         speed and back to work.         County Bar Association. He
with the workers’ compen-       When that is not possible,      serves as Chairman of the
sation system in our great      injured workers deserve to      Young Lawyers Division of
state. Please join me in        be compensated for their        the National Bar Associa-
making a more concerted         disability and loss of wage     tion, Chairman of the Diver-
effort to give our state’s      earning capacity as the         sity in the Law Committee
injured workers the same        Workers’ Compensation           for the MS Bar Young Law-
respect that we give crimi-     Law as enacted by our           yers Division and Chair of
nal defendants.        Defen-   state legislature mandates.     the Minorities in the Pro-
dants in our criminal jus-                                      fession Committee for the
tice system are presumed                                        American Bar Association
innocent until proven guilty                                    Young Lawyers Divi-
in a court of law. How I                                        sion. He has been a mem-
long for the day when the                                       ber of the NBA Board of
good people I represent                                         Governors since 2006.
and other similarly situated
laborers across our state
are presumed to be really
PAGE 4                                                                                        OUR WORK AND OUR CL IENTS




Views from the Bench
Part I: What’s Old Is New Again:
Motions and Compensability Hearings
By Judge Deneise Lott
Motion Practice Pointers                   a motion hearing on the record. The
      Motions are an increasingly          AJ will likely confer with both parties
popular vehicle to move cases for-         by phone before the motion hearing
ward by solving problems that              to confirm the need for a record, to
threaten to fester or spiral out of con-   clarify the scope of the hearing, and
trol or delay the ultimate resolution of   to ascertain the witnesses/proposed               Judge Deneise Turner Lott
a case. For example, a motion to           exhibits the parties plan to call/
compel medical treatment or to re-         introduce.
quest a change in physician may re-              Finally, please do not forget to
solve a conflict over health care that     call the Judge’s legal assistant as
could easily derail or stall the pro-      soon as possible upon the cancella-        through correspondence, the PHS
gress of a case.                           tion of any motion hearing.                (pre-hearing statement) or a prehear-
      Parties may also file motions to                                                ing conference in person or by phone.
compel payment of indemnity bene-          Compensability Hearings                         It is also important to conduct
fits or even to request a status con-                                                 compensability hearings as soon as
ference with the Judge. Be creative              The Commission commonly con-
                                           ducts bifurcated hearings to decide        possible because the claim is often
in this arena. A late, great claimant’s                                               stalled with claimant receiving little or
attorney once filed a “Motion For Dry      jurisdictional issues, such as whether
                                           a claim is barred by the statute of        no medical care pending resolution of
Chicken Job” because his client had                                                   the compensability issue. Claimant’s
developed a rash in response to her        limitations, whether an employer is
                                           subject to the Act, or whether the         inability to receive health care after
water-logged job at a chicken plant.                                                  an injury can delay if not jeopardize
                                           Commission has extraterritorial juris-
      Also, please remember that AJs       diction of a claim, before it conducts     his/her prospects for restoration to
use every event on their docket as a       hearings to determine the extent of        health and vocational opportunity,
disposition opportunity, so expect to      disability. Compensability hearings –      one of the two purposes of the Act
discuss discovery deadlines and pros-      hearings held at either party’s re-        per Section 71-3-1. This situation
pects for mediation and settlement         quest to determine the compensabil-        can also unnecessarily and unfairly
during the motion hearing, even if the     ity of a claim when that issue is con-     expose the employer/carrier to in-
motion is for a dry chicken job.           tested by employer/carrier – are not       creased liability for payment of medi-
      A motion should be filed with a      new, but they are experiencing an          cal and indemnity benefits.
notice of hearing. Motions may be          upward trend because parties need               Compensability hearings may
noticed for hearing on motion day but      to resolve threshold issues sooner         also allow the parties to avoid the
are generally held by telephone, as        rather than later.                         time and expense of litigating all the
these can be heard almost any Mon-               Compensability may be con-           issues in a case, particularly perma-
day or Friday without having to wait       tested because, among other rea-           nent disability. However, it may be
until the Judge’s next regularly sched-    sons, the employer denies that an          better to wait and try all issues if
uled motion day. Check with the AJ’s       injury arose out of and in the course      claimant has reached maximum
legal assistant to determine whether       of employment or because the medi-         medical recovery and the parties are
the AJ or the moving party will initiate   cal evidence does not establish the        just a final medical report or work
the telephonic hearing.                    existence of a work-connected impair-      search away from litigating the case
      Caveat: motion hearings gener-       ment. Although compensability hear-        to completion. Under these circum-
ally are not stenographically recorded     ings may address compensability            stances, a full hearing on the merits
because they involve only oral argu-       alone, they more commonly address          is generally more efficient than one
ments or the consideration of docu-        all issues to date, for example, claim-    that is limited to the issue of compen-
ments as opposed to live testimony.        ant’s entitlement to medical benefits      sability, but the parties and Commis-
Please telephone the AJ or AJ’s legal      and temporary total disability benefits    sion must evaluate the readiness of
assistant well before the motion hear-     to date. It is important for the parties   every claim for trial on a case-by-case
ing to request an evidentiary hearing      to confirm the scope of the hearing        basis.
and a court reporter if you would like     with the AJ well before the hearing –      Continued on Page 5
VOLUME 1, ISSUE 1                                                                                                   PAGE 5




Views from the Bench, Continued from Page 4
      Caveat: when submit-     Question Number 13 which        search list, and vocational      is the first woman to hold
ting a PHS on the issue of     asks for claimant’s ratings     reports.                         that position. She is cur-
compensability alone,          and restrictions, state that                                     rently a member of the
clearly indicate on the face   this information is currently                                    Mississippi Bar, the Admin-
of the PHS that the hearing    unavailable as claimant         About the author:                istrative Law and Workers’
will address compensability    has not yet reached maxi-       Judge Deneise Turner Lott        Compensation Section, the
only. Otherwise, the PHS       mum medical improvement         has served as an Adminis-        Women in the Profession
risks being rejected and       and a hearing on compen-        trative Judge with the Mis-      Committee, the Mississippi
returned to its sender. For    sability only is requested.     sissippi Workers’ Compen-        Women Lawyers’ Associa-
instance, title the PHS as a   Ditto for requests for at-      sation Commission since          tion, and the National Asso-
“PHS for Compensability        tachments of claimant’s         November 1988. She is            ciation of Women Judges.
Hearing.” In response to       final medical report, work      currently senior judge and




Our Mission: Understanding Kids’ Chance
What is Kids’ Chance?          year of school as long as       1 deadline. Scholarships
Kids’ Chance of Mississippi    they make satisfactory          will be awarded in late
is a scholarship fund estab-   academic progress. In ad-       June of each year and an-
                               dition, applicants must         nounced soon thereafter.                  “Kid’s Chance of
lished by the Mississippi
Bar Foundation under the       demonstrate substantial         The amount of each Kids’                   Mississippi is a
Administrative Law and         financial need.                 Chance of Mississippi
                                                                                                         scholarship fund
Workers’ Compensation                                          Scholarship awarded is
Section of the Mississippi                                     decided by the Scholarship           established..... to provide
                               Scholarship Selection           Committee; the amount of
Bar to provide scholarships                                                                         scholarships for children
for children who have had      The Kids’ Chance of Missis-     the scholarship(s) awarded
                               sippi Scholarship Commit-       is undetermined at this               who have had a parent
a parent killed or perma-
nently and totally disabled    tee reviews all applications    time. The application and              killed or permanently
on the job. Kids’ Chance of    and recommends recipi-          required documents should
                               ents to the foundation’s        be sent to: Administrative            and totally disabled on
Mississippi provides schol-
arships for students to        board of trustees. The com-     Law and Workers’ Compen-                      the job.”
attend vocational/technical    mittee is made up of repre-     sation Section, Mississippi
school or college. The fund    sentatives from the legal       Bar Foundation, Post Office
brings together all those      community, the medical          Box 2168, Jackson, Missis-
involved in workers’ com-      profession, insurance com-      sippi 39225-2168.
pensation issues: the legal,   panies and insured em-
medical and business com-      ployers. Through the caring
                               contributions of various        Donations
munities.
                               members of the commu-           As there is a large number
                               nity, Kids’ Chance of Mis-      of potentially eligible appli-
Who is eligible to receive     sissippi is able to give        cants, funds to establish
a Kids’ Chance of Missis-      young people a chance to        and continue the scholar-
sippi Scholarship?             further their education.        ships are always needed.
Mississippi residents be-                                      Any donation to the fund is
tween the ages of 17 and                                       tax deductible under Sec-
                               Applications                    tion 170 (c)(2) of the Inter-
23 who have had a parent
killed or permanently and      The time period for submit-     nal Revenue Code. If you
totally disabled in an acci-   ting completed applica-         wish to donate, please
dent that is compensable       tions and all supporting        send your check made
under the Mississippi          documents with respect to       payable to the Mississippi
Workers’ Compensation          scholarships for each year      Bar Foundation to: H.
Act may apply for the schol-   runs until May 1 of each        Byron Carter, III, Carter &
arship. The scholarship is     year. Applications and sup-     Usry, P.A., Post Office Box
good for one year, but re-     porting information will not    720636, Jackson, Missis-
cipients may apply each        be accepted after the May       sippi 39272-0636.
The Mississippi Bar Workers Compensation Section

P.O. Box 2168
Jackson, Mississippi 39225-2168
                                                                            Calendar of Events
                                                                    Worker’s Compensation Section Meeting Dates
                                                              All meetings will be held at the MS Worker’s Compensation
                                                                           Commission in Jackson, MS in the
Rene’ Garner                                                          Full Commission hearing room at 4:00 p.m.
Section and Division Coordinator                                                    December 1, 2008
Phone: 601-355-9226
Fax: 601-355-8635                                                                     March 2, 2009
Email: rgarner@msbar.org                                                               June 1, 2009
                                                                  Networking Social at Nick’s Restaurant immediately
                                                                                 following each meeting.
                                                                    All section members are encouraged to attend.


                                                                          The Power Behind the Throne Seminar
                                                                                     April 16, 2009
       We’re on the Web!
    www.msbar.org/7_worke
                                                                        MS Workers' Compensation Commission
     rs_compensation.php                                                   Annual Educational Conference
                                                                                  April 22-24, 2009




Workers Compensation Section Officers

Chair
                                                   About the Editor -
                                                   Amanda Green Alexander
Betty Arinder
barinder@wilkins-law.com

Vice-Chair                                         Amanda Green Alexander, a native of
Lindsay Varnadoe                                   Kokomo, Mississippi, is a shareholder
lvarnadoe@allen-kopet.com                          of Alexander & Watson, P.A. in Jack-
                                                   son, Mississippi. She represents both
Secretary                                          self-insured employers and insurance
Gary K. Jones                                      companies in the areas of worker’s
gjones@danielcoker.com                             compensation, labor and employ-
                                                   ment law. She is a member of the
Treasurer                                          Mississippi Bar Association, the Dis-
Pepper Cossar                                      trict of Columbia Bar Association, the
pcossar@markowwalker.com                           Hinds County Bar Association, Young
                                                   Lawyers Division of the Mississippi
Past Chair                                         Bar, the Magnolia Bar Association,
Marjorie O'Donnell                                 Executive Board Member of the
modonnell@claytonodonnell.com                      Worker’s Compensation Section and               Amanda Green Alexander
                                                   Women in the Profession of the Mis-
Executive Committee                                sissippi Bar. She is a certified “Kids
Willie Terrell Abston                              Chance” mediator of the Mississippi
willie.abston@butlersnow.com                       Worker’s Compensation Commission
                                                   and serves as President of the Mis-      Special Thanks:
Amanda Green Alexander                             sissippi Women Lawyers’ Association.     Special Thanks to our contributing
aga@alexanderandwatson.com                                                                  writers and to Rene’ Garner at The
                                                   If you are interested in submitting an   Mississippi Bar for assisting with
Orlando “Rod” Richmond, Sr.                        article or would like to announce        editing and distribution of our 1st
orlando.richmond@butlersnow.com                    upcoming worker’s compensation           issue of Our Work and Our Clients.
                                                   events, please forward this informa-
George E. Read                                     tion to Amanda Green Alexander,
gread@danielcoker.com                              Alexander & Watson, P.A. at
                                                   aga@alexanderandwatson.com

				
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