Articles Posted in Workers’ Compensation

mounds of paperwork
If you take a cursory look at the Georgia State Board of Workers’ Compensation website, you might believe that filing a claim for workers’ compensation is a relatively pain-free process that involves only the completion of a simple form.

While it is true that an employee must complete and file a WC-14 form with the Board (with copies to the employer and its workers’ compensation insurance carrier), this is only the beginning of what can be a very long and often highly contentious process.

Unfortunately, obtaining the workers’ compensation benefits one is due can be a difficult endeavor, so much so that the nonprofit organization Workers Compensation Research Institute (WCRI) conducted an investigation into the problems many, including Georgians, have getting the help they need after a work injury. The recent study found that nearly one out of five Georgians injured at work who experienced more than seven days lost time reported “‘big problems’ getting services they or their primary provider wanted.” Among those, more than half of the responses gave the reason as “employer or insurer did not want the care provided” as the reason. The research also concluded that Georgia had one of the lowest return to work rates in the country.

You have been hurt at work, and your employer refuses to start your disability payments or to help you get the medical care that you need. You have no money to hire an Atlanta workers’ shutterstock_188002490-300x200compensation lawyer. What should you do?

You should call an attorney and schedule an appointment as soon as possible. You do not have to pay a lawyer upfront to get your workers’ compensation case started. In fact, under Georgia law, no attorney’s fees can be paid in an on-the-job injury case until the State Board of Workers’ Compensation approves the fee.

Usually, the fee is paid as a percentage of the benefits ultimately awarded to the employee, but in cases in which the employee is forced to hire counsel because the employer has refused to comply with the law without reasonable grounds to do so, attorney’s fees may be “added on” to the award, such that the employer – rather than the employee – pays the fees. A recent case illustrates the point.

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In a Georgia workers’ compensation claim, the plaintiff has the burden of proving that his or her injury is compensable. This requires that the employee show, by a preponderance of the evidence, each and every one of the essential elements of the case: that he or she suffered an accidental injury, that the injury arose out of and in the course of employment with the defendant employer, and that the disability for which the employee seeks compensation resulted from the injury. In addition, the employee must prove that he or she gave timely notice of the work-related injury.

A recent case illustrates what can happen when an employee has a pre-existing, non-work-related medical condition. Her case was further compromised by a lack of timely notice.

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bucket truckWhen a product defect or failure causes a personal injury or wrongful death, the accident victim (or his or her family, in the event of a fatality) may be able to recover money damages via a product liability lawsuit. In Georgia, the general rule is that a product liability claim must be filed within two years of the date of the accident or within 10 years of the date that the product was first sold. (Of course, it is always best to talk to an experienced personal injury attorney about your particular situation, since different or additional deadlines may apply.)

Product liability lawsuits typically involve multiple theories of liability, including defective design, manufacturing defects, or failures to warn. In some cases, strict product liability may be a viable legal theory.

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Under Georgia law, most employers are required to purchase workers’ compensation insurance if they have at least three employees. Generally, this is true regardless of whether those three workers are considered full-time, part-time, or seasonal.

There are only a few exceptions to this general requirement. Farm laborers, domestic servants, and federal government employees are among those who are not required to be covered by workers’ compensation insurance. Unfortunately, not everyone follows the law.

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Under Georgia’s workers’ compensation laws, an employee who is out of work for at least seven days due to an on-the-job injury is entitled to weekly income benefits. These benefits are paid at the rate of 2/3 of the employee’s average weekly wage (subject to a state minimum and maximum).

The first check is to be mailed within three weeks of the date the employee was first out of work. If the employee is out of work for more than 21 consecutive days, he or she is to be paid for the “waiting week” as well.

In a recent case, an administrative law judge was asked to determine not the date upon which an employee’s weekly benefits began but whether those benefits should be ended based on a change in the employee’s condition.

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calendar appWhen a worker is injured on the job and becomes temporarily unable to perform his or her usual work duties, he or she may be entitled to either temporary total disability benefits (if the worker is totally unable to work) or temporary partial disability benefits (if the worker returns to work but earns less than before the injury).

Of course, temporary benefits do not continue forever – hence, the name “temporary.” Generally, these benefits end when an employee returns to their usual work duties or when their medical condition returns to its pre-work-injury state. This is commonly referred to as a return to “baseline”. This concept comes in to play primarily when the injured worker had an injury or pre-existing condition to the same body part prior to his or her work accident. The most popular way for employers to attempt to prove that an injured worker’s injury has returned to baseline in an attempt to suspend benefits is to present medical evidence in the form of statements from the injured worker’s treating physician(s).

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If you have been hurt in a work-related accident, you should be very careful about what you share on social media, as well as the activities in which you engage when in public – and by “in public,” we mean any occasion in which you could be visible to a surveillance company hired by your employer to observe your activities and physical condition.

No, we haven’t been reading too many George Orwell novels. The reality is, if your work injury has caused you to miss work for even a few weeks, someone may be watching you. If your daily activities and social media postings conflict with your claimed limitations from a work injury, you can bet the administrative law judge will hear about it when your case proceeds to a hearing.

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calculator keysUnlike negligence cases arising from car, truck, or motorcycle accidents, the compensation available in a workers’ compensation case is highly structured and is even subject to certain minimum and maximum benefits. (Because of factors like inflation and cost of living increases, the amount of minimum and maximum weekly compensation benefits varies over time.)

The amount due a particular worker also depends on his or her rate of pay at the time of the accident, the amount of permanent impairment suffered by the worker, and whether or not the worker was able to go back to his or her regular job after the injury.

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Most people have never heard of the “exclusive remedy” provision of Georgia’s workers’ compensation law. Given the frequency with which the word “exclusive” is used in conjunction with a sales pitch in popular culture (such as an “exclusive offer” or an “exclusive resort”), the term might be quite confusing in the context of a work-related injury
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Prior to modern-day workers’ compensation laws, if a worker was hurt on the job, he or she had the right to sue the employer in tort. To be successful, the worker had to show that the employer was negligent – that is, the employer failed to act in a reasonably prudent manner, thereby causing the worker’s injury. Proof of negligence is no longer necessary under today’s Georgia workers’ compensation laws, which is a good thing because there are many ways that employees can be seriously injured at work without the employer necessarily being negligent in causing an accident.

But isn’t there a catch, you may wonder? Yes – the “catch” is the exclusive remedy provision.

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