Workers’ Compensation

Workers’ Compensation

 Introduction

Workers’ Compensation was created to prevent employees from suing their employers for on the job injuries. If employees were allowed to sue their employers, the courts would be flooded with civil litigation; therefore, Workers’ Compensation was created under a “no-fault” system where the only criteria for receiving benefits is whether or not the employee was injured on the job. It does not matter whose fault it was that you became injured. It could have been your own fault, it could be your employer’s fault, or it could be nobody’s fault.

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In workers’ compensation, if you are injured for any reason other than for personal reasons, like a fight, intoxication or horseplay, then you may collect certain benefits. Please remember that the workers’ compensation benefits you receive will often not be as much as you would get in a civil case such as from a car wreck. In a car wreck case or other personal injury case, you are entitled to be made a whole again by the payment of money, and can receive money for pain, suffering, discomfort, aggravation, etc. In such a case, however, you must prove that your injury was the result of someone else’s negligence. However, in workers’ compensation, you do not receive any money whatsoever for pain, for suffering, for discomfort, for distress, or mental anguish. The only thing for which you may receive money in workers’ compensation is disability (or inability to work), and that will be explained more fully later. In return, you do not need to prove negligence in a workers’ compensation case, although the injured worker does have the burden of proving the essential elements of the claim.

If your employer had three or more full time employees at the time of your accident and you were not an owner-operator or independent contractor, a domestic servant , or a farm worker, then you are most likely entitled to Workers’ Compensation Benefits. The benefits that you are entitled to will essentially fall into three categories: (1) payment of medical bills, (2) payment of a portion of your wages/salary for temporary disability, and (3) payment for permanent partial disability. In order to receive benefits, however, you must report your injury to your supervisor or employer at least within thirty (30) days from the date of your injury. You must also make a claim for benefits with the State Board of Workers’ Compensation within one year from the date of the injury, and to receive permanent partial disability benefits, you must make your claim within four years from the date of the last income benefit. These three statutes of limitation must be remembered in order to preserve your claim. If you retain our firm in time, we will file everything that is needed to ensure your legal rights are not forfeited.

Medical Treatment

 Part I

Your employer or more likely, its insurance company, must provide and pay for all the treatment you need so long as you are being treated by an “authorized treating physician” (or ATP for short). For catastrophic injuries this can be a lifetime benefit. Otherwise, you are entitled to treatment for up to 400 weeks after you date of injury. If your employer has followed the law, then it (or its insurance company) has the right to control the physicians that you can see for your injury. As it turns out, many employers do not follow the law, and thereby lose their right to control the medical treatment that the injured employee receives. Each employer is supposed to have a posted panel of doctors at a conspicuous location like the employee bulletin board or break room (About half of the employers fail to maintain this list). If a person is injured on the job, they are supposed to be given a choice of one of the doctors or clinics on the panel of physicians. It is usual for the Employer or its insurance company to direct you to one of the doctors even though you are supposed to be told that you have the right to select one. If you are unhappy with that doctor, you are entitled to change doctors to one of the other doctors listed on the panel. However, as stated before, many employers do not have the panel of doctors which means the employee is thereby entitled to go to any doctor of their choosing.

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It is possible to change physicians to another doctor regardless of whether there was a properly posted panel of physicians or not. You can request the State Board of Workers’ Compensation to allow you to change physicians, even to someone not on the panel of physicians. This is a very technical procedure and one best left to an attorney. Many times the employer’s insurance carrier will not respond at all and the Change of Physician is granted. It is important to state at the time of the petition the reason you wish to change doctors, such as the authorized treating physician is not treating you fairly or has made a misdiagnosis of your condition.

Your approved doctor is considered the “authorized treating physician”. As long as the doctors with whom you treat are authorized, either by the employer or by the State Board, the insurance carrier is required to pay 100% of all the medical treatment related to your on the job injury. This is important to keep in mind. If the authorized physician refers you for a test or to another doctor, then the insurance company will be required to pay for that. However, if you seek testing or treatment from a doctor who is not “authorized”, you are responsible for the cost of that. There can be an exception for emergency treatment. Often though the insurance company will refuse to pay for emergency treatment if there is an authorized physician involved in your care. And often, the insurance company will refuse to approve recommended testing or treatment in an effort to save money. When this happens, we request a hearing with the workers compensation board, and force the insurance company to provide these things for you.

Many times, during the course of the claim, it is advisable to obtain a second opinion from another doctor. This may occur when recommendations from the authorized treating physician are not being approved or there is a release to return you back to work before you feel you are capable of working. Many “company doctors” have a tendency to return workers to their job prematurely or before the employee is capable of performing the job. We know good doctors to use for second opinions in these circumstances and will arrange for that when needed.

You are also entitled to receive 40 cents per mile for travel for treatment. This includes driving to physical therapy and to obtain prescriptions. Our office provides our clients with the appropriate forms that make it easier to collect this little-known benefit.

Income Benefits for Lost Earnings

Part II

Under Georgia law, an injured worker will not receive pay for being out of work unless he or she misses seven or more days from work. For example, if as a result of an on the job injury you are out of work for only four days, then you would not receive any disability payment, but only payment of medical bills. After you have been out of work for 21 days, you are entitled to receive your first check. After you have been out of work for twenty one consecutive days, you are entitled to reimbursement for the original seven days for which you were not paid.

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The amount of money which you are entitled to receive in weekly benefits is called Temporary Total Disability (TTD) Benefits and is calculated at the rate of two-thirds of your regular weekly salary, not to exceed $550.00 per week (effective July 1, 2015). By way of example, if you were making $900.00 per week, two thirds of that salary would be $600.00 per week, but you would only be entitled to receive the maximum of $550.00 per week. By the same token, if you were only making $100.00 per week, then two-thirds of that amount would be $66.66 per week, and that is what you would be entitled to receive. As a result, injured workers will not receive the income to which they were accustomed.   It is almost impossible for a man or woman who is supporting a family or a spouse, who is not working, has a house payment, and a car payment, to survive on $550.00 per week or less. Unfortunately, that is the current situation in Georgia which is one of the lowest paying states in the country for Workers’ Compensation Benefits. Workers with non-catastrophic injuries are limited to a maximum of 400 weeks of these benefits. Workers with catastrophic injuries receive workers’ compensation benefits for an unlimited period of time.

You are entitled to receive TTD benefits for as long as your authorized treating physician has you completely disabled from work. In order to receive TTD Benefits, you must have a written statement from your authorized treating physician stating that you are unable to work. Without the statement from your doctor, you cannot receive the benefits. Therefore, you should be sure to ask your doctor for a new disability slip every time you go in for treatment.

Temporary Total Disability Benefit Checks are issued on a weekly basis and often come on the same day of each week once a regular schedule has been set for you. However, so long as the check is mailed during that seven day period, it is considered to have been timely paid. When your authorized physician says that you are able to return to regular or normal duty work, the TTD checks can be suspended, and you should receive a Workers’ Compensation form indicating benefits are being suspended. If you disagree and feel that you are not able to return to work, it is important that you seek a second opinion from another doctor or ask the authorized treating physician to refer you to another doctor for a second opinion. If you do return to work before you are ready, then you may jeopardize your job and be suspended for failure to perform, or you may reinjure yourself by doing something which you should not be doing. We regularly contest return to work releases when it is clear that the client cannot return to work.

Your doctor may put you back to work on a limited duty basis. “Restricted duty” or “light duty” may mean that you are not to be doing any heavy work, or it may mean that you are not to work full days. Make sure your supervisor understands your limitations when you return to work, and remind your employer that you are not to do certain types of heavy duty work. Many times the employer will not have light duty work available for you and will, therefore, return you to Temporary Total Disability status until you can perform “regular or normal duty.” Many times, however, the employer will not inform the insurance company of this. In order to have your TTD Benefits reinstated, it is important that you or your attorney immediately contact the insurance company to advise it that your employer does not have light duty work for you and that your TTD benefits should be reinstated.

In certain circumstances, an injured employee who returns to some kind of work but earns less per week than he/she was making at the time of the injury may be entitled to Temporary Partial Disability (TPD) Benefits. You would be entitled to payment of two-thirds of the difference between what you made before your injury and what you make after you returned to work. There is a maximum payment for TPD of $367 per week for injuries occurring on or after July 1, 2015. For injuries that occurred from July 1, 2013 to June 30, 2015 the maximum rate is $350.00 per week. This benefit is paid weekly, just like TTD. If you have returned to work after an injury and are making less money, you should call us as we may be able to obtain TPD payments for you.

Permanent Disability Benefits

 Part III

When a worker has returned to work or has reached what is called Maximum Medical Improvement (MMI), then the injured worker is eligible to receive the third benefit which is called Permanent Partial Disability (PPD). These benefits are given after the Temporary Total Disability benefits are suspended or have ceased. Permanent Partial Disability has nothing to do with “pain and suffering.” Rather, PPD is based purely upon loss of use of the part of your body that was injured. In Workers’ Compensation you can receive Permanent Partial Disability Benefits even for an injury to your little finger, so long as that little finger has some restricted range of movement which can be measured by a doctor. The amount of money which you receive for your particular injury will be determined according to a schedule set out in the workers compensation law. Your doctor will use AMA Guidelines to determine the percentage of disability. You cannot get a permanent disability rating immediately after an injury. Rather, this is given after you have healed from your injury because a PPD rating cannot be determined until you have reached Maximum Medical Improvement.

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There is often a discrepancy between PPD ratings given by different doctors, even though the ratings are based upon the same guidelines. Your authorized physician may provide a low rating for your injury. In that case, we would want you to see another physician who may well provide a much higher rating. In those cases, the amount of PPD would need to be determined at a Hearing, at which time an Administrative Law Judge for the State Board of Workers’ Compensation would review the medical records and decide the issue. Many times the PPD dispute can lead to a favorable settlement for you.

Hearings

Part IV

Although the vast majority of Workers’ Compensation cases do not require any litigation, occasionally the parties cannot come to an agreement over an issue and a hearing is required. Hearings are held at the State Board of Workers’ Compensation for cases which are in dispute. One is not permitted to request a Hearing unless there is a bona fide, legitimate dispute for the judge to hear. The dispute could be over non-payment of medical bills, change in treating physician, approval of treatment or testing, over a change in condition from Return to Work status back to Temporary Total Disability status, or any number of things. The Hearing could even be to asses a penalty for non-payment of a benefit.

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Hearings are generally scheduled approximately one to two months after the date they were requested. You should be aware, however, that hearings are often postponed by one side or the other. A Hearing can be as short as one-half hour or can last all day depending on the complexity of the case. If the case involves only one small issue, such as non-payment of a doctor’s bill, the Hearing might only take half an hour. Several hearings are scheduled for one day before the same judge since the average hearing lasts one hour. One of the unfortunate realities of workers compensation in Georgia is that even when a hearing takes place, there can be a long wait before the requested relief is obtained. Judges have 60 days to issue the Award (or ruling). Then the losing side has the right to appeal. There are three levels of appeal of a workers compensation Award. These appeals can last many, many months.

Settlements

 Part V

Rather than go to a Hearing for a bona fide dispute, parties are often able to settle their cases out of court. Usually the insurance company wants to limit the amount they will pay in the claim and this motivates them to try to settle your claim. However, keep in mind that neither you nor the insurance company are required to settle the claim. Thus there is nothing you can do to force a settlement of your claim. And as a term of any settlement, you will be required to resign from your employment. Employers rarely agree to settle with an employee and then allow them to continue to work for them. Once a settlement is reached, a Stipulated Settlement Agreement is prepared and signed by all the parties. No one is permitted to settle a Workers’ Compensation claim without approval from the State Board of Workers Compensation; therefore, all settlements must be sent to the State Board for approval. Once the Stipulated Settlement Agreement is returned signed and approved by the State Board, then the settlement money is issued to the parties by the employer’s insurance company. By law, the settlement checks must be issued within twenty days after the stipulation is approved by the State Board.

Termination of Employment After an Injury

Part VI

One of the most frequent questions we receive is whether an employee can be fired after being injured on the job. The short answer is almost always, “yes”. Even if you are still totally disabled by your doctor, in most circumstances your employer can terminate you. Georgia is an employment “at will” State which means you can be fired for any reason including the fact that you were injured on the job. Exceptions would include having a written contract of employment with your employer or being protected by a union agreement. However, most of the larger employers see the value in retaining a good employee and will not terminate you just because you sustained an injury while working. And firing you while you are still on work restrictions could mean that you become entitled to additional disability benefits.

Attorney’s Fees

 Part VII

Most Workers’ Compensation attorneys will not ask you for money up front in order to handle your claim, but rather, will ask you to sign a contract which will entitle the attorney to receive a percentage of your settlement or award. Attorney’s fees in Workers’ Compensation are governed by the State of Georgia with the result that nearly all attorneys in the State have the same fee agreement. No attorney is permitted to take a fee in Workers’ Compensation without permission from the State Board for any amount of money in excess of $100.00. An attorney may take $100.00 as a retainer fee, but any amount over that must be approved. The State Board will award your attorney a fee only if he is successful in obtaining money for you. The fees which are currently allowed by the State Board of Workers’ Compensation are 25% of the weekly benefits or settlement amount. If the insurance carrier/ employer has been found to have been unreasonable in the handling of the claim, the Administrative Law Judge may award attorney’s fees which are separate and apart from the award made to the employee.

A Final Word

Part VIII

We hope this information helps you better understand this highly complicated and complex area of the law. We strongly advise that you not to attempt to handle your Workers’ Compensation claim without the assistance of an attorney who has a thorough understanding of Georgia’s Workers’ Compensation law. If you have been injured on the job we sincerely hope that you will allow our firm to put our experience to work for you. We look forward to assisting you, and invite you to contact us.