Workers’ Compensation

Under Georgia Law, a doctor or other medical provider is not required to obtain authorization or pre-authorization in order to perform diagnostic testing and treatment; however, insurance adjusters are now often delaying, denying or obstructing medical care by demanding that doctors obtain “authorization” before ordering diagnostic testing or providing any treatment.

The injured worker may make “one free change” to another doctor on the Panel of Physicians. Injured employees may also ask their employer to allow a change to another doctor; or, may file a request for another physician with the State Board of Workers Compensation.

In Georgia, for work injuries that occurred prior to July 1, 2013, there is a right to “lifetime” medical. For work-related accidents occurring after that date, medical treatment is limited to 400 weeks from the date of accident unless the work injury is designated “catastrophic”.

Round trip travel from an employee’s home for examination, treatment, testing, physical therapy, to the pharmacy, etc., is currently reimbursed at $0.40 per mile. Expenses for travel, meals and lodging are also reimbursed when travel beyond an employee’s home city lasting more than a total of four (4) hours is required. Reimbursement is due within 15 days of an employer’s receipt of an itemized request with receipts, etc. attached.

In Georgia, if an injured worker is unable to work at all, or if suitable restricted duty work is not available, weekly disability benefits are paid until the worker can perform suitable employment; but, these are limited to 400 weeks from the date of accident unless the claim and injuries are designated to be “catastrophic”.

In Georgia, the weekly income benefit is based upon the average of your salary or wages before any deductions for the 13 weeks prior to the date of accident. If you did not work for “substantially the whole” (about 80%) of the scheduled work days for those 13 weeks, the wages of a similar employee are used. If there is no similar employee, your “contract of hire” which will usually be your hourly rate multiplied by the hours you were hired to work would be used. No taxes are withheld on your weekly income benefits since workers’ compensation benefits are not taxable.

While the method of calculation of weekly income benefit is similar in most states, the maximum benefit available in 2017 varies from a high of $1,507.50 in New Hampshire to a low of $477.82 in Mississippi. In Georgia, for injuries occurring on or after July 1, 2016, the maximum weekly “TTD” benefit is $575.00, which is second lowest of the 50 States. For the maximum income benefit by state, see:https://secure.ssa.gov/poms.nsf/lnx/0452150045

The “due date” of the first payment of weekly disability income benefits varies from state to state. Georgia injured workers have one of the longest waits since the first payment is not due until the 21st day from the date the employer has knowledge of the disabling injury or death. Thereafter, each payment during disability must be made weekly and is considered to be paid timely if mailed from within Georgia by the due date, usually considered to be the last day of the weekly coverage or pay period. Checks issued from outside Georgia must be mailed three days prior to the due date (last day of the weekly coverage or pay period). The period “covered” by each payment is required to be listed on each check.

For any check which was not issued and mailed by the due date, a 15% “late penalty” is required to be added to and included in the check which was paid late.

Duration of disability income benefits varies from one state to another. In Georgia, unless the work injury is designated to be “catastrophic”, payment of weekly income benefits for temporary total disability (“TTD”) is limited to 400 weeks from the date of injury.

However, if the injured employee is released to work “with restrictions”, is not yet able to return to the employee’s “regular duty”; but, the injuries result in reduced earnings, the injured worker may be entitled to payment of a weekly temporary partial disability (“TPD”) income benefit; however, the duration of payment of “TPD” is 350 weeks from the date of accident.

Additionally, in Georgia, if an employee is released to restricted work, without offering suitable restricted work, an employer can reduce both the amount of the disability benefit and the number of weeks to 350 one year after sending a Form WC-104 notifying the employee of the “medical release to return to work with restrictions or limitations.”

If an injured worker has a permanent medical impairment (also referred to as “permanent partial disability” or “PPD”), there is an entitlement to income benefits once there is no longer any entitlement to Temporary Total and/or Temporary Partial Disability Benefits.

In Georgia, a physician determining permanent impairment is required to use The AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition, which was published in 2000 and is no longer up-to-date with the medical science for many medical conditions and injuries.

When an employee suffers a work related injury or condition in the workplace, in most instances, and in most states, by law, that employee will be entitled to receive only income, medical and in some states, vocational rehabilitation. Medical and weekly income benefits, referred to as “workers’ compensation”, are required to be provided by an employer with three (3) or more employees regularly in service inGeorgia. Employers satisfy that legal duty by obtaining coverage from an insurance company or by a self-insurance program.

However, there are some situations in which a work-injured employee, entitled to workers’ compensation benefits, may also pursue claims and remedies through law suits for damages as well as other claims and forms of benefits and money in addition to workers’ compensation benefits. Such lawsuits for damages caused by injuries; and those exceptions vary from one state to another.

Georgia allows few exceptions to this State’s “Exclusive Remedy Doctrine” which is codified in OCGA 34-9-11; and states:

“The rights and the remedies granted to an employee by this chapter shall exclude and be in place of all other rights and remedies of such employee, his or her personal representative, parents, dependents, or next of kin, and all other civil liabilities or death . . . .”

Some of the exceptions to Georgia’s “Workers Compensation as Exclusive Remedy” law include:

If a third party caused your injury, you might be able to bring a personal injury lawsuit against that person in addition to receiving workers’ compensation.

An example: If an employee’s work duties involved driving a delivery van and the employee was injured in a motor vehicle accident caused by a driver of another vehicle, the injured employee would begin receiving income benefits and medical treatment from the employer’s workers’ compensation program. The injured employee could also pursue a civil “damage” lawsuit against the driver of the other vehicle. However, should that damage suit be successful, the employer’s workers’ compensation program might be able to obtain some of the monetary damages received by the injured employee in order to recover some or all of the cost of the workers’ compensation benefits provided by the employer’s workers compensation program. This is known as subrogation.

In Georgia, the employer cannot recover any of the injured employee’s monetary damages unless the employee was “made whole” in the civil damage claim.

If the employee was injured by a defective product, tool or machine, a products liability claim against the manufacturer of the product could be pursued in additionto the workers compensation claim.

When a worker is injured by a defective machine or piece of equipment, malfunctioned or otherwise failed to work properly, or was inherently dangerous, the manufacturer can be held responsible for the injury if the manufacturer knew or should have known of the danger and/or failed to warn of the danger. In such a lawsuit, in addition to the workers’ compensation claim, the injured employee could receive damages for medical bills, lost wages, pain and suffering, which are explained below.

A lawsuit may be available in addition to workers compensation benefits against the manufacturer of a hazardous or toxic substance which caused the work injury or condition.

Employees who use or are exposed to harmful or toxic chemicals and substances which cause severe injuries and illnesses may be able to pursue a lawsuit for damages resulting from such use or exposure. Some injuries and illnesses occur and the resulting harm appear soon after exposure. Other medical conditions such as mesothelioma and cancers develop slowly over time from long-term exposure. In addition to receiving Workers’ Compensation Benefits, an employee who is injured by a toxic substance may be able to sue the manufacturer of the toxic substance as well as others involved in the exposure to the toxic substance.

Unlike workers’ compensation benefits, when an injured worker plaintiff is also able to pursue a damage suit, those damages are known as compensatory damages and are intended to make the injured employee “whole” economically.

Since the injured employee’s medical expenses were paid by workers’ compensation,future medical expenses required beyond 400 weeks (unless the injuries are designated to be “catastrophic”) could be projected over the injured employee plaintiff’s lifetime and awarded or negotiated in a settlement of the “damage suit”. An award or settlement of a personal injury damage suit would not terminate or end the workers compensation claim.

Weekly income benefits in Georgia are also limited to 400 weeks unless the injuries are designated as “catastrophic”. And, because those income benefits are based on two-thirds of the average weekly wage before the injury with a maximum weekly benefit in 2017 of $575.00, the difference between the full wages and the weekly workers compensation could be awarded or negotiated plus the full future loss of earnings after the 400 week limit is reached.

Unlike workers compensation which provides only medical and income benefits for up to 400 weeks, if a damage suit is available, “non-economic” damages are available; but, the value of “non-economic damage” is not as easily determined. Common “non-economic” damages include:

• Physical and mental pain and suffering, emotional distress, etc.;
• Loss of enjoyment of life;
• Loss of consortium – the impact upon the marital relationship

If a damage suit is available, so are defenses which cannot be used in a workers’ compensation claim.

Unlike workers compensation, which is intended to be a “no fault” system, the defendant in a damage suit can use “defenses” to defeat or weaken a damage suit. Defenses such as contributory or comparative negligence and even the failure of the injured worker plaintiff to mitigate his own damages are available.