Georgia Workers Compensation blog

Jodi Ginsberg's Georgia Workers' Compensation Blog

Jodi Ginsberg

My Employer Says That the Company Does Not Have Worker's Comp Coverage – What Should I Do?

by

My mom got injured on the job severly and they say she cannot get workmans comp because the place didnt have it. She fell in a cooler and because they can’t prove it was wet she can’t do anything. Can you help her?
–Carissa

Jodi Ginsberg responds: First you should call the State Board of workers’ compensation at 404-656-3692. Tell the receptionist that you need to verify an employer’s coverage. Give them the name of employer and date of accident.

They will then tell you if there is workers comp insurance coverage. Do not believe the employer if they tell you there is no coverage. You need to confirm it with the Board. If there is coverage please call me at 770-351-0801 to discuss as we can then determine if there is a case to pursue.

[tags] employer not covered by workers comp insurance, Georgia State Board of Workers Compensation [/tags]

Am I Covered if I am Injured After Work While Walking to the Parking Lot?

by

As a rule, if you are injured traveling to or from work, you are not covered by Georgia workers’ compensation. However, there is an exception to this rule. These exceptions include:

  • instances when your employer provides transportation
  • when you do doing some function that is permitted or required by your employer
  • when you are walking to or from the parking lot provided by the employer
  • when you are an “on-call” employee and your employer furnishes transportation
  • when your employer provides you with a vehicle, you are covered when you enter the vehicle and stops when finish your job task

As you might imagine, there is a lot of litigation when an employee is injured off the worksite. There are literally hundreds of published cases and our experience has been that every case has to be analyzed on its own merits. Therefore, if you are injured off site, you may have an uphill battle, but do not assume that there is no way that you are covered.

Fact specific situations are ones where experienced legal counsel can be of great help to you.

[tags] workers comp coverage when traveling to or from work, ingress, egress, georgia workers’ compensation [/tags]

Want to Sue Your Employer for Damages for an On-the-Job Injury – Georgia Law Says “No”

by

Many of my workers’ compensation clients express to me their surprise and dismay that their employer’s attitude seems to have changed overnight. Not infrequently, a loyal, hardworking, 20+ year employee will discover that her employer shows little loyalty or compassion if the worker files a workers’ compensation claim.

In cases where the employer now seems unfriendly and the on-the-job injury arises from poor safety procedures or other “negligent” conduct on the part of the employer, I am often asked if it is possible for the injured worker to sue the employer for money damages in negligence or for an intentional act.

Unfortunately, the answer to this question is almost always “no.” Georgia law – O.C.G.A. Section 34-9-11 – provides that workers’ compensation is an “exclusive remedy” for employees. The employer is protected from tort liability (i.e., negligence or intentional acts that give rise to damages) in exchange for providing a wide range of workers’ compensation benefits to the injured employee regardless of the reason for an accident.

In other words, even if you, as the employee, were at fault in causing your own injury, you still would be eligible for workers’ compensation benefits. In exchange for this “strict liability” protection, you lose the right to sue your employer. This trade-off is not optional – it is set out in the Georgia law.

Note that you retain the right to sue a third party for damages – for example if you are driving a truck for work and you get into an accident caused by another driver, you would have a workers’ compensation claim against your employer and a negligence action against the other driver.

There are some very limited exceptions to the “exclusive remedy” in workers’ compensation. In the Samuel vs. Baitcher case, a restaurant employee, Mr. Samuel, was injured and found eligible for workers’ compensation benefits. Unfortunately, the corporation that owned the restaurant had no workers’ compensation insurance and shortly after the accident went out of business. The corporation was owned and managed by Mr. & Mrs. Baitcher.

The Georgia Supreme Court held allowed Mr. Samuel to sue the Baitchers individually to recover an amount equal to what he should have received in workers’ compension. This is a rare result and appears to be somewhat fact specific. However, if your employer goes out of business and did not have insurance, this case may give you some chance at recovery, although actually recovering your money might be easier said than done.

In the vast majority of cases, therefore, your only remedy for an on-the-job injury will be within the workers’ compensation system and your recovery will be limited to what is provided for in the statute – lost time from work benefits (temporary total disability – called “TTD” or “TPD” benefits), permanent injury benefits (permanent partial disability or “PPD”) and medical treatment paid for by the employer. You cannot recover pain and suffering damages in workers’ compensation.

What You Say on Your Job Application Can Affect a Workers' Compensation Claim Years Later

by

One of the hurdles we face in our practice is a strategy used by defense lawyers called the “Rycroft defense.” The Rycroft defense takes its name from the case of Georgia Electric Company vs. Rycroft and involved a situation where John Rycroft injured his back on the on the job in 1984. He underwent two lumbar surgeries, a diskectomy and a bilateral fusion at L4/5 and L5/S1. Mr. Rycroft injured his back a second time in 1986 but did not pursue a workers’ compensation claim.
John Rycroft began working for Georgia Electric Company in July, 1986. According to the Georgia Supreme Court decision, Rycroft failed to reveal his prior employment and he checked a box stating that he had never had back problems. He answered a question about prior hospitalizations by stating that he had broken a finger – no mention was made of the prior back surgeries. He denied any back problem during an interview. When he first reported for work, his supervisor asked him about his prior employment and any prior injuries and Rycroft did not reveal his prior injuries.

On August 19, 1986, Rycroft fell at work and fractured his lower spine at the spot where he had previously underwent surgery for a fusion. During the course of processing the workers’ compensation claim, Rycroft admitted that he had lied on his job application and verbally, but stated that he felt he could do the work and that he was afraid that he would not have been hired if he had been truthful.

The owner of Georgia Electric testified that Rycroft would not have been hired if Georgia Electric had known about his prior back problems.

The State Board of Workers’ Compensation granted his claim for benefits. Georgia Electric appealed, but was turned down by both the full Board and the Superior Court.
The Georgia Supreme Court, however, reversed and held that Rycroft was not eligible for benefits. The factors identified by the Supreme Court are as follows:

  • was there a false statement in an employment application?
  • did the employee knowingly and willingly make the false statement about his physical condition?
  • did the employer rely on the false statement and was such reliance a substantial factor in the hiring?
  • is there a causal connection between the false representation and the current injury?

You can be sure that if you are injured on the job, your employer will carefully review your job application and your pre-employment physical report, if one was taken.

Note that nothing in the law requires you to volunteer information that was not asked. Similarly, the Americans With Disabilities Act limits what employers can ask. However, if you leave out as much relevant information as Rycroft, you are going to have problems with a workers’ compensation claim.

[tags] Rycroft defense, Georgia Electric Co. v. Rycroft, Georgia workers’ compensation, defense to Georgia workers’ comp claim [/tags]

National Public Interest Organization Criticizes Georgia Workers’ Comp System

by

A report from the Center for Justice & Democracy, a private consumer rights advocacy group, suggests that Georgia offers less that adequate protection for injured workers with its workers’ compensation laws. Among the findings:

  • lost wage benefits for injured workers are among the lowest in the nation. In Georgia, an injured workers is paid 66% of his average weekly wage with a maximum payment of $450 per week. Most states pay 75% to 100% of the average weekly wage with no cap at all.
  • except in certain catastrophic cases, injured workers in Georgia may only collect lost wage benefits for 400 week (7 1/2 years). Most State have no benefit term cap. From the perspective of a workers’ compensation lawyer, this limitation on the total amount of lost wage benefits is reduces the insurer’s exposure and therefore reduces an injured workers’ negotiation power for settlement purposes.
  • lobbyists for business and insurance interests are actively lobbying to get rid of the “catastrophic” designation and therefore apply a 400 week cap on wage benefits in all cases. A worker who ends up in a wheelchair unable to move, therefore, would only be entitled to less than 8 years of wage benefits with no chance of recovering a monetary settlement sufficient to care for his lifetime needs
  • the Georgia legislature has been eroding the “no fault” nature of Georgia’s workers’ compensation laws. Insurers can deny benefits by claiming that an employee did not follow procedures or if an employment application was not filled out completely. Insurers can deny benefits if a worker is hurt on a break or by claiming that he is not performing work within the scope of his employment. These eligibility issues are similar to the issues that arise in negligence civil litigation such as car accidents or malpractice, except that in a workers compensation setting the injured worker cannot recover pain and suffering damages. Typical workers’ compensation settlements, therefore, are significantly lower than a negligence settlement would have been for the same type of injury.