Often, injured workers choose to settle their cases with their employer’s insurance company in return for one-time cash payments.

These settlements often take into consideration:

• Unpaid total temporary disability or partial disability benefits (TTD or TPD)
• TTD or TPD benefits likely to be owed in the future
• Future medical expenses
• Permanent disability benefits owed or likely to be owed
• Any penalties for late payment of benefits
• And in some circumstances, attorneys fees

Whether you SHOULD settle your claim depends on what you are offered, what you would otherwise be entitled to if you did not settle, and whether the settlement reasonably meets your needs.

Why would I ever want to settle my workers’ compensation claim?

While you are technically entitled to lifetime medical treatment, on-time disability checks (TTD or TPD), and then checks for any Permanent injuries (PPD), things do not always go so smoothly. Your employer’s insurance company is a business. It is in their financial interests to limit both cash payments to you as well as the overall cost of your medical care. Often this leads to resistance or delays in receiving cash benefits, in changing doctors, authorizing physician referrals, and in getting medical procedures approved. Also, if your employer has not accepted your claim and has paid you no benefits they may feel they have a defense to paying you benefits. By settling a claim an insurer may waive this potential defense to your claim.

Insurance companies often favor settlements over keeping your claim open for months or years. If they settle at a set amount, they can more accurately pass this expense onto their customers (employers) who purchase insurance from them. Other considerations regarding settling your claim for a lump sum payment include your ability to get another job, your eligibility for Social Security benefits, and your eligibility for Medicare or group insurance at another job or through your spouse.

An injured employee covered by workers’ compensation is entitled to medical treatment at the employer’s expense. If the employee misses any work due to the injury or is permanently injured the employee is likely due one or more of three types of cash benefits. These cash benefits are:

• Total Temporary Disability (TTD)
• Total Partial Disability (TPD)
• Permanent Partial Disability (PPD)

How are Workers’ Compensation cash benefits calculated?

Your Workers’ Compensation benefits are first based on a term called your “average weekly wage.” That wage figure is then applied to the type of disability benefits you are entitled to. You’re average weekly wage is computed by averaging your wages from the 13 weeks prior to the injury. This figure includes salary, hourly pay, tips, meal allowances, lodging allowances, clothing allowances, and even year-end bonuses.

Depending on how much you worked/made in the 13 weeks before the injury, this calculation could end up benefiting you or unfairly setting your wage lower than you think it should be. If you did not work for the 13 weeks preceding the injury (maybe you were hurt on your first day) your wage is usually set by the wage of a similar employee for the 13 weeks prior to your injury.

Temporary Total Disability (TTD) Benefits

You are entitled to what is known as TTD benefits if your work injury results in your total disability from work. TTD benefits are two-thirds of your of your average weekly wage, but no more than $500 per week for injuries occurring on or after July 1, 2007. For injuries occurring prior to July 1, 2007, please use our TTD benefits calculator (link). Unless your injury is determined to be “catastrophic,” you are only entitled to TTD benefits for a maximum period of 400 weeks from the date of injury.

“Catastrophic” injuries are not subject to the 400 week cap and include such injuries as paralysis, brain injury, severe neurological disorders, total blindness, and amputations of an arm, hand, foot or leg. An attorney can advise you if your injury may be “catastrophic” under Georgia law.

You do not necessarily have to be 100% physically disabled to be disabled from work. It does mean that you have a 100% impairment of earning capacity. If you are able to return to light duty work and your employer cannot or will not accept you back at work, you may still be entitled to TTD benefits.

Temporary Partial Disability (TPD) Benefits

You are entitled to TPD benefits when your earning capacity is impaired but you are not totally disabled from work. This means if you are injured and are unable to earn a weekly wage equal to the wage you were earning, you are entitled to two-thirds the difference between your wage before and after the accident, but no more than $334 per week. Your employer is responsible for paying this benefit whether you are earning a lower wage with the same or a different employer. You are eligible for these benefits for up to 350 weeks after you are injured.

Permanent Partial Disability (PPD) Benefits

Unlike TTD and TPD, this benefit relates entirely to your level of physical disability, not your earning capacity. An employee may be entitled to this benefit even if they never missed a day of work or lost any wages due to an injury. PPD is based entirely on a formula that takes into account your percentage of impairment (as determined by your doctor, not your employer), the part of the body impaired, and your compensation rate. However, PPD benefits will not begin until after an employee stops receiving weekly TTD or TPD payments. See our Compensation calculators  to learn more about how PPD benefits are computed.

Penalties for late payments

If you are not paid your TTD, TPD, or PPD benefits on-time, your employer may owe you a 15% penalty in addition to the amounts they already owe you. This is true if your employer incorrectly denied you your benefits for a period of time, or if they are already paying you your weekly benefits and miss a payment or mail it to you late.

Waiting period for receiving benefits

An injured employee is NOT entitled to any cash benefits for the first 7 days they are hurt unless the injury period lasts for at least 21 consecutive days. In other words, if you are out of work due to injury, your employer does not need to pay you any cash benefits until the 8th day of disability. If you are still disabled after 21 days, your employer must then go back and compensate you for the first week of your disability.

Medical Treatment under Georgia Workers’ Compensation

The Good News:

Unlike most situations with cash benefits, your medical benefits are basically never-ending. In other words, once you have an “accepted” claim, one in which your employer or their insurer has paid you income benefits or has paid for your medical treatment, your employer owes you treatment related to that injury for as long as it takes to cure you, provide relief, or restore you to suitable employment. This obligation could go on for your entire life depending on the injury.

The Bad News:

Your medical information in workers’ compensation is not confidential. Your employer and their insurance company will likely receive a copy of your medical information relating to your work injury. Also, the employer/insurer may not be required to pay for medical treatment from unauthorized doctors.

What doctors/hospitals/clinics can I receive treatment from?

Maybe the tightest held secret in workers’ compensation is that your employer is required to and likely has posted somewhere in the deep recesses of your workplace a document called a “Panel of Physicians.” This document must contain a list of six doctors or facilities with whom you have the right to seek treatment at your employer’s expense. At least one doctor will need to be a licensed orthopedic surgeon. Orthopedics specialize in chronic and traumatic injuries to the body. However, your employer will likely encourage you to go to an industrial clinic for treatment of your injuries. Know that even after visiting this clinic you still have the right to choose to see an orthopedic surgeon who specializes in injuries like yours.

If your employer fails to post this “Panel” or does not allow you to select a doctor from this list they forfeit any control over who you receive medical treatment from. In other words, if you have a compensable work injury, your employer will be stuck paying for any doctor you choose to treat your injuries. For that reason your employer has probably unceremoniously placed this very important document on a wall in a break room next to seldom read minimum wage information, state/federal permits or business licenses, and safety information.

Once you have identified your employer’s panel of physicians, take clear a picture of it (many people even have cell phone cameras that can do this). If you have the chance, take it down and make a photocopy of it. If no panel of physicians exits, take a photo of the area in which legal notices are hung where no panel is posted.

If I don’t like my doctor, can I get a new one?

An employee is entitled to make one change in treating physicians from one physician to another on the same panel of physicians without any special authorization. Aside from picking a new doctor from your employer’s panel you will likely need to have the employer agree to a change. If your employer refuses to allow a change outside the panel of physicians you may make a request to the State Board of Compensation and petition them to allow a change in physicians. This request is made using State Board of Workers’ Compensation form WC-200b.

Additionally, if you are receiving any income benefits from your employer, you have the right to one independent examination (known as an IME) by a physician of your choosing at your employer’s expense. While this doctor will not become your regular physician, if their opinion differs from your regular doctor it may provide a new direction for your treatment or support a claim for a change of physicians.

Unfortunately, your employer is not limited to one request for an IME and may require you to go to as many independent medical evaluations (IMEs) as they wish to pay for. Failing to attend IME appointments may result is the suspension of your benefits until such time as you attend the appointment.

Reimbursement of mileage expenses

Your employer is likely in no hurry to tell you, but they are required to compensate you for your medically related travel costs. With gas prices as high as they are, your travel expenses may be more considerable than you think. Your employer must compensate you at the rate 40 cents per mile traveled from your home to: your doctor’s office, physical therapy, the pharmacy, and any other place of examination or treatment.

If you are required to travel away from your home city, the employer may also be responsible for the cost of meals and lodging.

We encourage you to keep an accurate log of all your mileage and submit it to your employer/insurer each month. If you never submit a mileage log for reimbursement you will never receive compensation for all the gas you burn up as a result of your injuries.

You know you are injured, but is your injury covered by Workers’ Compensation?

Georgia’s workers’ compensation laws require that for compensation to be due, an injury to an employee must 1) “arise out of” and 2) “in the course of” employment. These are deceptively complicated requirements here in Georgia. There is no clear cut test for either of these requirements. Below are some of the major considerations:

“Arising out of employment”

• Must be a causal connection between the condition of the work and the resulting injury
• Injury must relate to the employment and not be independent if it
• An accident arises out of employment when the accident arises because of the employment

“In the course of employment”:

• An accident must occur within the time period of employment
• At a place where the employee reasonably may be in the performance of their duties
• While the employee is fulfilling their duties

Is my at-work injury covered by workers’ compensation?

Aggravation of preexisting conditions

Your employer is required to pay for an at-work aggravation of your preexisting conditions. However, they are only required to compensate you to the point where you have returned to the pre-aggravation condition. For example, if you are over the age of 40, your back is likely not as healthy as it was when you were in your 20s. You might have what doctors call “degenerative discs” in your spine. These discs can be injured more easily than healthy discs, but your employer would still need to compensate you should you injure your back at work.

Occupational Diseases

Your employer may be required to pay for an “injury” due to a disease which is a specific risk of your job. In some rare circumstances this can include a psychological or nervous injury due to long-term stress or other job-related factors. There can be complicated limitations to coverage for occupational diseases. If you wish to proceed with a claim based on a disease believed to be developed out of the course of your employment, it is highly advisable that you contact an attorney.

Practical jokes/horseplay injuries

An employer is not required to pay for an injury to a party engaging in horseplay or practically joking during working hours. However, an injury suffered by an innocent employee due to the horseplay of a fellow employee is covered.

On the job fights/assault

Generally, injuries during fights at work are not compensable where the fight is not related to your employment. Additionally, an injury resulting from an assault by a third party (non-employee) at work is not covered where the assault by a third party is for reasons personal to the employee. For example, the assault of a store clerk during a robbery would be compensable, but an assault by a fellow employee or third party arising from a dispute over who has the fastest car would not be compensable.

Psychological or emotional illnesses

Generally, psychological or emotional injuries are only covered to the extent that the condition arises from a physical injury. In other words, if an employee develops a psychological condition, like depression, based on a purely emotional situation it likely would not be covered. However, if the same condition resulted from an underlying physical injury, it would be covered. Additionally, if an emotional injury, like stress, manifests itself in a physical way, those physical injuries (ex. headaches or blurred vision) may be covered by workers’ compensation.

Is my off/after work injury covered by workers’ compensation?

Off-work aggravation of work injuries

You employer is required to pay for many off-work aggravation of work injuries. However, an employer would not have to pay for an injury if it was found that the negligence of the injured employee in aggravating the condition had completely broken the connection to the previous injury.

After work activity injuries

If you are injured while not actually working, but participating in a work activity or recreation event (like a company picnic or softball game) the injury may be covered by workers’ compensation. While no one fact controls, below are several factors that may be weighed to determine whether the injury is covered. Did the accident occur on the employer’s premises? Was the event/team organized by the employer? Did the employer pay for the activity? Did the employer benefit from employee participation in the event?

Injuries going to and from work

For employees who work at a fixed location and do not travel as part of their job (unlike taxi cab drivers, truckers, pizza delivery persons), injuries sustained while going to or from work are not covered. However, there are some exceptions to this rule:

• When an employer has furnished transportation to the employee
• When the employee runs a beneficial errand for the employer while going to or leaving work (ex. an accident while dropping off mail for your employer on the way home)
• When the employee is on call
• When the employee is reimbursed for transportation costs
• When the injury occurs in your employer’s parking lot as you arrive or leave

Rest Breaks/Lunch Breaks

Injuries during scheduled lunch or rest breaks are generally not covered by workers’ compensation. However, injuries during unscheduled rest breaks may be covered in some instances, depending on the employer’s rules regarding breaks as well as what you were doing during that break.

During both lunch and rest breaks, if you are doing something in furtherance of your employer’s business or by your employer’s instruction, an injury during that time is likely covered by workers’ compensation. Examples include running an errand for your boss during lunch or carrying tool from one part of a shop to another during a rest break. These actions transform the non-work period into covered time.

Business Related Travel

When traveling on business for your employer, most injuries are going to be covered regardless of when it occurs. However, there are exceptions to this rule.

Notifying your employer of an injury

Notice of the injury must be given either orally or in writing within 30 days after the accident or within 30 days after a death from an accident. There are however, some exceptions to this rule. When the employee has been prevented from giving notice by physical or mental incapacity. When the employee is prevented from giving notice by the employer’s fraud or deceit. When the employer (or a supervisor or foreman) has knowledge of the accident.

Your employer must be told not only of an accident, but that you were injured from the accident. However, this notice does not need to come directly from an injured employee. It could come, for example, from an employee’s spouse, child, or a fellow employee. The notice must be made to someone in management (like a supervisor or foreman), not just a fellow employee.

If an injury is not known until more than 30 days after the accident, the 30 day period does not begin to run until you first had reason to realize the injury was from the accident. In the case of a gradual injury (like a slowly developing back problem) that causes you to stop working, you must still give notice to the employer that you are stopping work because of the work-related injury.

1. How many years of experience do you have? This seems to be an obvious question but it is amazing how infrequently it gets asked. Experience is the key to the practice of law. The old adage is that, with a lawyer, you pay for the gray hair. The more experience an attorney has, the more likely that he or she has had a case similar to yours. However, every professional must start somewhere. If your case is assigned to a young associate, make sure that someone with experience supervises the case.

2. What percentage of your practice is in this area of the law? The practice of law is becoming more and more specialized. It stands to reason that an attorney who chooses to concentrate his or her practice in a single area know that area better than one who tries to do a little of everything. It is very difficult in this day and time to be a “jack of all trades.” Also, relationships between opposing attorneys does play a part in the successful resolution of a case. The more specialized an attorney is, the more likely he or she is to know the opponent if the case goes to litigation.

3. Do you have malpractice insurance? This question is almost never asked but should be. However, if you have work done on your house, one of the first question you would probably ask is “Do you have insurance?”. If the worst happens and your attorney commits malpractice, you do not want to try to collect from an uninsured individual. Also, if he or she has no insurance, there may be a reason such as previous successful malpractice claims.

4. When I call your office, will I talk to your or one of your staff? While paralegals and secretaries are important to any successful practice, they are not lawyers and are not a fair substitute for speaking directly with your attorney regarding important issues in your case. This is not to say that you should always expect to talk to your lawyer when you call. However, some firms rely solely on paralegals after the case begins. The client sees the lawyer when the firm is retained and maybe when the case settles. You entrusted the attorney with your case, not his or her staff.

5. Will you try my case yourself? Often, high volume lawyers never see the inside of a courtroom. If the case needs to be tried, they will either withdraw from your case or refer it to someone else. In a “volume” practice, it takes too much time to try a case as opposed to settling it. What they sacrifice as far as the recovery on a single case, they make up in sheer numbers. These practices are referred to as “mills”, grinding out settlement after settlement. However, when your opponent knows that your lawyer is not willing to take your case to court, the chances of you receiving maximum value for your case is far less.

The decision that you make in hiring an attorney will have more to do with the eventual result than any other decision you make on the claim. Most people make this decision on the type of ad someone has in the phone book or what commercial they see or hear on television or radio. Just because an attorney appears in these mediums is no reason to either hire or reject them. Hire someone you feel comfortable with and confident in. Hopefully, the above suggestions will be helpful.

What is Workers’ Compensation?

In Georgia, Workers’ Compensation operates as a “no fault” system for compensating injured workers for time missed from work and for costs of necessary medical treatment. The system presents trade-offs for Georgia workers. While it bars claims against an employer for personal injury, it also bars some of the defenses an employer could use against a workers’ claim such as “assumption of the risk” or that the injury was caused by a fellow employee.

This system means you cannot sue your employer in State/Superior court for your injuries, like you would in other instances. Instead, an injured employee is compensated according to a schedule set out by the Georgia State Board of Workers’ Compensation. Sadly, this means you will not be able to sue your employer for such things as pain and suffering from your injuries.

Exactly who is allowed to make a Georgia Workers’ Comp claim?

The foundation of workers’ compensation law is in defining who is an employer and an employee for workers’ compensation purposes. Unfortunately, it is not always as simple as “I work for Company X, therefore Company X is my employer and I am his employee.”

The basic rule as to whether an employee/employer relationship exists involves two seemingly simple criteria; 1) a person in the service of another, who is 2) under contract of hire.

There is no requirement that a work contract be written. Actual pay may not be necessary (ex. Volunteer firefighters or police, elected officials). Minors can still benefit from workers’ compensation even if they are working in violation of child labor laws. Also, unlike many states, migrant workers and temporary employees are covered.

However, many types of employment or employers are not subject to workers’ compensation. Types of employment not covered by Georgia Workers’ Compensation include Domestic servants, Farm laborers, Railroad common carriers, Sports officials (umpire, judge, linesman, scorekeeper, timekeeper, etc.), Licensed real estate salespersons with independent contractor agreements, Partners in a business, and Independent Contractors.

Georgia Workers Compensation does NOT apply to employers that do not have at least three employees operating in the same business within Georgia. These minimum three employees must be “regularly in service” within the state. The term “regularly” does not mean constantly or continuously, only that there is a routine practice by the employer to utilize three or more employees, even if that many employees are working on the date of an accident. In most situations your boss will count towards the three employee requirement.

Independent Contractors

Employers often do everything they can to classify their employees as independent contractors to protect themselves from having to pay workers’ compensation to their injured employees. There may be a debate as to whether you are in fact an independent contractor, but if you one, you are not entitled to workers’ compensation. While it can be complicated determining whether you are an employee or an independent contractor, below are some of the factors to look at in determining your status:

• CONTRACT - Existence of an independent contractor agreement signed by the worker
• PAY - An hourly or salaried worker is likely an employee. When a worker is paid on a per-job basis he may be viewed as an independent contractor.
• TAXES - If an employer withholds taxes, the worker is more likely an employee. However, just because your wages are reported on 1099 tax form instead of a W-2, your employer has not automatically made you an independent contractor.
• TYPE OF WORK - If the workers’ job is part of the regular business of the employer, rather than some additional service to the business, it would favor the employer/employee relationship.
• JOB “TOOLS” - Who supplies the tools, supplies, or materials of the job? If the worker supplies all their own tools and materials it likely indicates an independent contractor relationship.
• HOURS - If the employer controls a workers’ hours, it likely indicates an employment relationship.
• OVERALL CONTROL - If the employer controls how a worker does their job, as opposed to simply requiring certain results, the worker is likely an employee. These “how” factors focus on the hours, manner, methods, and means of performing the work.

Many clients, sometimes after years of litigating a workers’ compensation claim, get to the frustration point where they decide: “I guess I’m going to have to sue my employer.” It is at this point that the harsh reality must be revealed (or reiterated). In most cases, if you have a workers’ compensation claim, you cannot sue your employer, even if it was negligent, for the same injury. This article will try to explain the logic behind the exclusion commonly known as “the exclusive remedy provision”.

Before workers compensation statutes came into existence, the same rules applied to work related accidents as any other civil claim. If one was injured at work and the employer was negligent, a civil suit could be brought against the employer for damages. However, in many cases, the injured worker would be out of work and unable to feed his family or obtain medical treatment. If the case was complicated, attorney fees, court costs and expert witness fees could not be paid. The employer had a distinct advantage. Even if a favorable verdict was obtained, it took months and the losing side was entitled to appeal.

To even the playing field, beginning in the 1910s, lawmakers began creating the “workmen’s compensation” laws on which the current law are based. The concept was fairly simple: create a system where an injured employee received compensation and medical treatment where he or she was injured in an incident which arose out of and in the course of employment. Benefits were paid quickly and regardless of fault. If the case was disputed, it was handled administratively, generally without suit being filed and without a jury trial.

On the surface, these laws seem to favor employees. However, as time would tell, the benefit to employers was significant. Contingency fees and non-economic damages, such as pain and suffering, were in their infancy in the 1920s. In the heyday of the pre tort reform era, a person could recover much more in a personal injury case than they could in a workers’ compensation claim, sometimes ten times as much or more. Therefore, in a case where an individual was killed on the job as a result of his employer’s negligence, benefits to his dependents under workers compensation are generally limited. If he or she had no dependents, in many states the employer would only have to pay for medical treatment before death. The same circumstances in a lawsuit would likely result in a six or seven figure settlement or verdict with the potential for punitive damages.

Also, as an incentive to industry, workers’ benefits under the act would be limited. Generally, an injured worker is entitled to two-thirds of his or her “average weekly wage” with a cap in place in many jurisdictions. In Georgia, for example, as of June 30, 1990, the maximum benefit an injured worker was entitled to was $175.00 per week, regardless of his or her injury or pre-injury wages. Even in 2006, after significant increases in the last fifteen years, the maximum rate in Georgia is less than $24,000 per year. (O.C.G.A 34-9-261) The median household income during the same period of time was $48,388. ).

In some jurisdictions, there are exceptions to the exclusive remedy provision. If the employer is guilty of gross negligence or willful misconduct, an injured worker may be able to obtain benefits over and above those provided by workers’ compensation. For example, in Massachusetts, an employee’s compensation is doubled in these types of cases with the employer paying the additional benefits. At lease one jurisdiction allows a choice of remedies where the employer is guilty of gross or willful negligence.

There are other exceptions but they are rare. In certain contract cases, an employer may be brought in as a result of an indemnification agreement with a third party. Also, if the employer is acting in a different capacity than employer, the exclusive remedy bar may not apply. Another example is in a loaned servant situation such as an employee working for a temp service. However, most states treat the both the direct employer and the company that pays the leasing company as “employer” for workers’ compensation purposes.

The level of frustration is tremendous for both employees and attorneys in the area of exclusive remedy. It does not seem right that an employer can be negligent and be immune from suit. It is more unfair that an employer can cause injury due to gross or willful misconduct with no consequences in most jurisdictions. The frustration intensifies when you learn you cannot sue a company who is not your employer - the “statutory employer” concept but that discussion is for another article. When your lawyer, family or a friend tells you “You cannot sue your employer”, it may not seem just or fair. Sadly, however, it is probably correct.