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.
Filed under Exclusive remedy, Georgia Workers' Compensation, Understanding the Law by 
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]
My mom got injured on the job severly and they say she cannot get workmans comp because the place didnt have it. She fell in a cooler and because they can’t prove it was wet she can’t do anything. Can you help her?
–Carissa
Jodi Ginsberg responds: First you should call the State Board of workers’ compensation at 404-656-3692. Tell the receptionist that you need to verify an employer’s coverage. Give them the name of employer and date of accident.
They will then tell you if there is workers comp insurance coverage. Do not believe the employer if they tell you there is no coverage. You need to confirm it with the Board. If there is coverage please call me at 770-351-0801 to discuss as we can then determine if there is a case to pursue.
[tags] employer not covered by workers comp insurance, Georgia State Board of Workers Compensation [/tags]
Filed under Georgia Workers' Compensation, Understanding the Law by
I would like some info. I was injured on the job last week. Actually I broke my foot while working in the woods. My employer said to present him a bill and he will pay instead of filing workers comp. Who is that benefiting he or I? I have since worked everyday just limping along. It hurts alot, but I have a family and cannot miss a paycheck. If he doesnt pay the bills what should I do, or should I do something now? Please advice.
–Edgar
Jodi Ginsberg responds: Edgar, the purpose of workers compensation is to allow an injured worker to get the proper care and income benefits when he cannot work at all or at his normal job. However, workers’ comp is not a choice that your employer gets to make – if you are injured on the job, you have the absolute right to file a claim. Your employer is trying to get you to avoid the system so he does not have to put a claim in to his wc carrier.
In my opinion, that approach is not good for you. You need proper medical care; weekly benefits and the time to heal from the injury. You should not play games with your health.
In addition, if you try to submit medical bills from an on-the-job injury to your health insurance company, they will probably reject the claim as workers’ compensation is considered the primary insurer in an on-the-job injury claim.
Finally, in a worst case scenario, if you do not file your claim and a year goes by, you may lose the right to file for workers’ comp. because of the statute of limitations. If your employer should then decide to stop paying for your medical care, you could be out of luck.
I realize that sometimes injured workers do not like to “rock the boat” and therefore may not to press the issue with their employers. Unfortunately, however, it has been my experience that employees who try to “help” their employer usually end up with the raw end of the deal. At the very least, therefore, please call me at 770-351-0801 so we can discuss what is in your best interest.
[tags] workers comp vs. health insurance, not filing on-the-job injury claim under workers compensation, workers compensation and statute of limitation [/tags]
Do you think they will fire me if they know I have contacted you? I cannot afford to lose this job. I have a wife and 3 children at home.
–Edgar
Jodi Ginsberg responds: Edgar, I do not know if they will fire you. That is something you will have to determine on your own. The fact of the matter is you can get terminated whether you have an attorney or not especially if they see you cannot do your job because you are injured. That is not right, but it happens all the time.
Employees get injured and do not want to pursue workers comp because they fear losing their job. They avoid going to the doctor, they do not file a workers comp claim and then get fired anyway.
Realize that if you go beyond 30 days from date of your injury and do not report it to your supervisor as worker comp injury then you may be locked out of filing a claim.
You would then be in a really bad spot.. No job, no workers comp benefits and no way to get a new job because you are hurt.
Although workers’ compensation is supposed to prevent conflicts between employers and employees, I have found that workers comp law is one of the most adversarial areas of the law I have seen. Only divorce and domestic relations is worse.
If an employee has been hurt, the employer now has to deal with (1) an injured worker who cannot perform all of his job duties (2) an insurance claim (3) the likelihood that his insurance rates will go up (4) changing attitudes of other employees. In my experience an employee’s loyalty is rarely rewarded. Right now, I am working on a case where an 18 year employee received her termination letter while she was in the hospital and the employer (not the insurance company) is refusing to authorize funds for settlement.
I do not know your employer and maybe your situation is an exception to the rule. However, time and time again, I see dramatic changes in the attitude that an employer has to a long time employee after a workers’ comp claim is filed.
If your injury is at all serious, I think you need to protect yourself because I would not feel comfortable relying on an employer and its insurer to act in your best interest.
[tags] filing a claim for workers compensation benefits, workers comp and statute of limitations, Georgia workers compensation [/tags]
Filed under Georgia Workers' Compensation by
North Carolina workers’ compensation lawyer Dan Deuterman recently wrote about one of his cases, Clark vs. WalMart, that ended up in the North Carolina Supreme Court. Although the Clark case arose under North Carolina law, there are implications for Georgia workers’ compensation claimants.
Mrs. Clark, a 64 year old lady, worked as a greeter at WalMart. She injured herself while attempting to move a decorative sled while standing on a 10 foot ladder. Ms. Clark had previously been diagnosed with osteoporosis. After initially accepting the claim, WalMart cut Ms. Clark off, arguing that Ms. Clark was not entitled to presume that her on-going back pain was solely the result of her job injury given the pre-existing osteoporosis.
The North Carolina Supreme Court agreed with WalMart that Ms. Clark, as the injured employee, had the burden of proving that her on-going disability arose from her job injury and remanded the case back to the North Carolina Industrial Commission (which is roughly equivalent to the Georgia State Board of Workers’ Compensation). The Industrial Commission ruled that Ms. Clark was permanently disabled and that WalMart had to pay for her medical care, including spine care associated with osteoporosis.
This case highlights an issue that we often see here in Georgia. Often our client’s work injury is not the only medical problem afflicting him or her. Sometimes, our client has a pre-existing medical problem (one known to the employer) that makes recovery from the new on-the-job injury more time-consuming or complicated. Sometimes an unknown medical problem will arise due to the stress and shock of a sudden work injury.
Employers and their insurers will attempt to limit the medical treatment to the specific work injury and will refuse to pay for medical treatment that is not directly related. As you might imagine this stance creates issues as often the “other” medical problem limits healing or affects treatment. Certainly, in Mrs. Clark’s case, her job injury at WalMart did not cause her osteoporosis, but the osteoporosis most definitely affected her healing and the extent of her recovery.
As is the case in North Carolina, disputes between employers and their insurers about what constitutes compensable care ends up before workers’ compensation judges.
[tags] Clark v. Walmart, pre-existing conditions, payment of medical care in workers’ compensation cases [/tags]
North Carolina trial lawyer Chris Nichols has written a very useful description of how the Medicare Set Aside rules work in workers’ compensation cases. He also notes that federal law also permits Medicare to pursue Set Asides in liability cases (although Medicare has not yet done this).
Chris describes the concept of a Set Aside as follows:
The concept of the law is that Medicare is a "secondary payer" when any other form of insurance exists to pay claims. Before 2001, that meant traditional health insurance, but starting in 2001 Medicare began to interpret that to mean that even third party insurance, specifically Worker’s compensation settlements that "cut off" future medical benefits (clinchers), would be subject to the Medicare Secondary Payer regulations. This meant that any Workers Compensation clincher that resaonably cut off future workers compensation benefits would have to be reviewed by CMS to determine if there should be an MSA "allocation." Accordingly, Medicare would look at the case and decide what the future medical costs for the injury would be. The future costs would be placed in a MSA trust for the payment of medical services related to that claim.
We frequently have to deal with Medicare in large settlements, and often the Set Aside negotiations can add time and aggrevation to a settlement. However, Medicare Set Asides are often a fact of life that we must be aware of prior to entering settlement negotiations.
[tags] Medicare Set Aside, Medicare Secondary Payer, Georgia Workers’ Compensation, Workers compensation settlements, Medicare lien [/tags]
Filed under Georgia Workers' Compensation, Medicare Set Aside issues, Settlements by
