jump to navigation

Georgia Workers’ Compensation Benefits - What Employees Are Entitled to Benefits? April 15, 2008

Posted by Aaron Walter in Uncategorized.
Tags: , , , , ,
add a comment

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.

Exclusive Remedy Provisions/Workers’ Compensation - Can I sue my employer? April 15, 2008

Posted by Herb Chestnut in Uncategorized.
Tags: ,
add a comment

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.