September 24, 2017

Seriously Injured Workers Likely to be Fired

Construction Worker Suffering Injury After Fall From Ladder

Many of the folks I speak with about work injury claims are, quite reasonably, concerned about their jobs.  Steady, well-paying jobs are hard to find and reporting an on-the-job injury could have negative consequences for your employment.

If you experience a relatively minor injury, you should not have much of a problem – minor muscle strains or bruises usually respond to ice and a day or two of rest, and then you can return to work without any issues.  In most of these cases, the posted panel doc’s treatment will be sufficient.  Our experience has been that employers recognize that bumps and bruises are part of almost any job and your employment will not be at risk if you access the posted panel doctor and the workers’ compensation system.

Problems often occur when your injury is more than a minor strain. Or perhaps you have had a series of minor and not so minor bumps and bruises that have resulted in several visits to the workers’ compensation clinic and more than a few days of missed work.  In cases where your employer decides that you are injury prone or that your minor injury really isn’t so minor, your job may be in jeopardy.

Our experience has been that if your injury is serious enough to keep you out of work for more than a week, or if the posted panel doctor cannot resolve your problem with minimal treatment, it may be time to seek representation.  Employers tend to look for ways to terminate workers with serious injuries or those who seem injury prone regardless of their years of work or desire to remain.

Yes, making the decision to formally involve a lawyer will be noted by the insurance company and by your employer but if your injury is serious enough to keep you out of work, require the services of a specialist or involve what may be permanent injury, you need to focus on protecting yourself and your family and worry less about what your employer may or may not do.

A published hearing decision I ran across illustrates my point.

In the case of Faulk vs. Sports Authority, Ms. Paulk injured her knee in June, 2008 while unloading a FedEx truck. In pain and unable to stand or support weight on her injured knee, Ms. Fault missed several days of work seeking treatment, then she missed additional days when she could not perform the tasks of a “light duty” job (sitting behind a desk without being able to stretch her leg out).

Sports Authority fired Ms. Faulk for excessive absences. They also denied her claim on the grounds that she was offered light work and refused to perform that work.

Ms. Faulk presented evidence that she missed work because of doctor’s visits or because she was recovering from treatment. She also presented MRI evidence that she had a meniscus tear, a bone contusion and a ligament strain.

Ms. Faulk asked the State Board to award her lost wage (temporary total disability) benefits, medical services and a penalty for an “unreasonable defense” of the claim.

A hearing was held in this case on May 20, 2009 – almost a year after Ms. Faulk’s work accident. The judge’s decision was issued in August, 2009.

The State Board judge ruled in favor of Ms. Faulk, including the award of penalties against Sports Authority for its unreasonable defense.

While it is gratifying that the State Board judge found in favor of Ms. Faulk, I hope you can see some of the bigger issues that this rather typical case reveals:

First, over a year passed between the date of Ms. Faulk’s injury and the decision by the State Board. We don’t know if she received any treatment during that year or if she simply had to live in pain with a damaged knee for 11 months.  Perhaps she did get treatment in this case, although in many cases like this, the insurance company will deny both lost wage benefits and medical treatment.  My experience has been that you will have much better results in the care of injuries involving joints with immediate treatment. An 11 month delay in receiving treatment of a serious knee injury would most likely result in incomplete recovery and a lifetime of chronic pain.

Second, the first action by the employer in this case was to fire Ms. Faulk for “unexcused absences” even though her missed time from work was directly due to her on the job injury and treatment of that injury. To Ms. Faulk’s credit, she sought legal counsel that fought for her rights. Otherwise, it appears that the employer’s hope here was that she would just go away.

Third, even though her accident was witnessed and the type of injury that would seem common on a loading dock, the employer decided to challenge her claim. They were not arguing that she had a pre-existing condition or that she was not really hurt at work. Their only defense was that she missed too many days of work. Again, it would seem that the employer here was hoping that Ms. Faulk would either get frustrated not getting benefits and with the long delay and go away with a lowball settlement offer.

This case presents a perfect example of how the workers’ compensation system works in Georgia. Insurance companies can deny and delay while you sit at home without any money waiting for a court date that could be a year away.

In this case, Ms. Faulk had experienced and knowledgeable counsel who stuck with her and pursued the unreasonable defense argument successfully.

I see cases like this every day in my office. Hardworking men and women get injured on the job and find themselves facing denials and months of litigation.

When you get hurt on the job, you need to prepare to go into battle to recover the lost wage and medical benefits guaranteed you by Georgia law. If you think you might need some help on this battlefield, I am ready to help you. Call me at 770-351-0801 and let’s get started.

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Jodi Ginsberg

Attorney Jodi Ginsberg represents employees who are injured on the job and who need medical care and missed wage benefits available under Georgia's workers' compensation laws.

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