Georgia Workers Compensation blog

Jodi Ginsberg's Georgia Workers' Compensation Blog

Understanding the Law

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

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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”

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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.

National Public Interest Organization Criticizes Georgia Workers’ Comp System

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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.

Posted Panel of Physicians Must be In View and Explained by Employer

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One of the most important parts of your workers’ comp case relates to who will be your “authorized treating physician.” The opinion of your treating doctor is very important to the development of your case – if your doctor downplays your injuries and releases you back to work, you may lose your benefits, you may lose your job, and you may lose important leverage in your case.

The Georgia workers’ compensation statute gives the employer/insurer the first opportunity to direct your medical care. Code Section 34-9-201 provides that at a minimum that covered employers – any employer with more than 3 employees – must make available to employees a posted panel of physicians containing at least four independent medical providers. The Code Section also provides for something called a “conformed panel” containing ten physicians or a managed care organization approved by the Georgia State Board of Workers’ Compensation.

In addition to maintaining a properly set out panel of physicians, the employer must make the panel accessible to employees and must explain how the panel works and the procedure for filing a claim.

If the panel does not exist, or if it is not accessible or if it is not explained, then the employer forfeits the right to control the medical care and you can go to any doctor for treatment and the employer will have to pay for the treatment.

An employer who does not have a panel can still controvert the claim but, as you might imagine, that is an uphill battle if the only on-going medical treatment in the case is from a friendly physician.

Posted panels are usually, but not always, printed on bright pink paper and may be posted in break rooms or near restrooms. The insurance defense bar recognizes the significance of the posted panel of physicians. One of the insurance defense firms that I frequently litigate against has published a paper presented to employers at a seminar – the subheading of the paper is “Solutions Which Will Keep Even the Most Atypical Claimant at Work!” Although this paper is written for the benefit of employers and their insurers, you as the claimant can learn a lot from it and I recommend it to you.
I frequently see examples of improper panels in many types of businesses. My dry cleaner, for example, has a pristine pink posted panel – with no physicians’ names printed on it. A local pizzeria near my house has a posted panel with two hospitals and one doctor – improper because it contains only three choices.

If you think that your employer did not have a proper posted panel at the time you were hurt, you can help your case by asking a co-worker to photocopy the panel or snap a digital picture of it.

[tags] posted panel of physicians, georgia workers compensation, O.C.G.A. Section 34-9-201 [/tags]

Nasty Surprises for First Time Workers' Comp Claimants

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If you have never filed an on-the-job injury claim before, prepare yourself for a rude shock once you file your workers’ compensation claim. In theory, Georgia’s workers’ comp. law is designed to reduce disputes between employers and employees – in fact, I believe that workers’ compensation is just as adversarial as divorce or any other hotly contested litigation.

In theory, the Georgia’s workers’ comp statute reduces conflict by eliminating fault from the claim equation. If a worker is injured, he need only prove that he was on the clock performing a duty of his employment. Negligence is not an issue. Bad judgment, if honest and unintentional, is compensible.

By comparison, you cannot recover damages in a car accident if you were at fault. For example, if you are driving a company vehicle on a delivery and you run off the road and hit a tree, workers’ comp will cover you. If you had this same accident on the weekend, you would have no source of recovery in negligence.

There is a tradeoff for not having to prove fault. In workers compensation, you cannot recover money damages for pain and suffering. Instead, the Georgia comp statute provides that you can recover for your economic loss (temporary total disbability) and for your permanent medical impairment (total or partial permanent disability). Typically, recoveries for injuries in worker’s comp are less than the same injuries in a negligence case.

Because negligence is not an issue, the “battleground” in a workers’ comp case often arises from a dispute about the severity of your injury. Often, I spend a lot of my time fighting with the insurance company over who the treating doctor ought to be.

It should come as no surprise that the insurance companies who process workers’ compensation claims in Georgia have identified dozens of doctors who take a very conservative approach to on-the-job injury claims. These doctors are likely to minimize the significance of your injury and will release you back to work quickly.

Having been in practice for over 15 years, I have met, deposed and reviewed the work of most of the doctors who you will likely see in your workers’ comp claim.

By contrast, my job is to secure for you medical care that is focused on your well being. I will also expect that your treating doctor’s loyalty is directed towards you, not to an insurance company that sends him work.

[tags] georgia workers’ comp law, workers’ comp vs. car accident, company doctor [/tags]