When her initial workers' comp benefit was calculated, she was awarded a weekly TTD benefit that was a gross underpayment when you looked at all the care she needed and the specifics of her case. After a careful review of the case, it became obvious that her benefit was mis-calculated due to her position as a waitress – where a lot of the money she brought in was due to TIPS.

You see, many times servers and bartenders and other workers who bring in significant income from tips end up experiencing improper wage calculations and mis-calculations of benefits owed when in pursuit of workers' comp cases. The same is true for workers who work off commissions or receive large bonuses.

In my client's case, we were able to get her the benefits she deserved (we ended up securing higher TTD benefits, plus TPD and PPD as well), and we were also able to re-calculate her wages to reflect a more accurate picture of what she had been making at the time of the accident. This is why it pays to have a workers' comp attorney helping you with your case – we see these situations often and can often help you maximize your benefits.

In any case, the tip of the day is this: To anyone bringing in significant income from tips, commissions, or bonuses, KEEP GOOD RECORDS in the event that you are one day injured and have to pursue a workers' comp case!

He wanted to know if he should consider bankruptcy.  As you may know, my husband, Jonathan Ginsberg, has been a consumer bankruptcy lawyer for many years and I asked him to speak with my client.   Here is what Jonathan has to say about dealing with these debt issues:

The Georgia Workers' Compensation law specifically provides that workers' compensation benefits are exempt from the claims of creditors.  This means that no judgment creditor can garnish your benefits, or levy on any funds in your bank account.   However, it is always easier to prevent a garnishment than to try and get your money back.  First, you should not co-mingle your workers' compensation funds with your spouse's money or any other money you may have.  You don't want to give a judgment creditor an angle to grab money that is not directly tied to your workers' compensation benefits.

Secondly, your workers' compensation money may not be protected from claims related to child support or taxes.  In my mind there is some inconsistency within Georgia law about this and federal law would trump state law on one or both of these issues.  If you have child support, alimony or tax claims outstanding, you should let your lawyer know.

Here is the text of a letter that you may want to send to creditors:

Dear Sir or Madame:

You have recently contacted me about a debt you allege I owe.  Please be advised that I am currently not working because of an on-the-job injury.  I am currently disabled and receiving workers compensation benefits.

Georgia law (O.C.G.A. Section 34-9-84) specifically provides that Georgia workers’ compensation benefits are “exempt from all claims of creditors.”  I deposit my weekly wage benefit payments into my checking account and I do not co-mingle these funds with any other money.    This protection will extend to any fund I might receive should I settle my workers’ compensation case.

My attorney advises me that any effort by creditors to levy or garnish workers’ compensation funds would be actionable.  I would therefore respectfully advise you not to take any action with regard to this debt.

To the extent that any Fair Debt Collection Practices Act rights are involved I hereby assert those rights as well.

My physicians have advised me to avoid stress and I therefore request that you or your agents refrain from contacting me by telephone.

Thank you for your attention to this matter.

I would recommend that you send this letter to registered mail, return receipt requested to all creditors and creditor lawyers that are asserting claims against you.

Let me give you an example.  Earlier this month, I received a call from a potential client.  This young man – I'll call him "Tom" – had been working with earth moving equipment for a large construction company that was building a dam on a river in north Georgia.  Tom and a co-worker were working late – all of the supervisors and most of the co-workers were gone.  The co-worker pushed a large boulder towards Tom and when Tom tried to control the boulder, it rolled onto his hand, crushing a finger and badly injuring his hand.

Tom's co-workers took him to the emergency room at a local hospital where his condition was stabalized and a hand surgeon was brought in.  Tom underwent surgery that very night to repair his hand.  Tom was released to go home late that night with a prescription for strong pain medicine and instructions not to use his hand until further notice.

The next morning, a supervisor from Tom's employer called.   Although the accident had literally happened the night before, the supervisor began pressuring Tom to return to work.  During that first day after the accident, various supervisors from the employer called and emailed Tom repeatedly to demand that he return to work.

Within a few days, Tom received a letter from the employer's workers' compensation insurer stating that his claim would be accepted and that his TTD (temporary total disability benefits) would be forthcoming.   At the same time, during this first week, Tom continued to receive calls from his employer requesting that he report back to work.

Tom does not know much about workers' compensation law, but he sensed that the employer's actions were not in his best interest.   He found Ginsberg Law Offices on the Internet and he called our office.  When I first spoke with Tom, he advised me that his employer had never posted a panel of physicians, they had not offered him a prescription drug card, nor had anyone from the employer ever explained to him anything at all about how to file a workers' compensation claim or about any of his rights thereunder.

Where is the "return to work trap?"

The trap arises when an employee returns to work.  Under the Georgia workers'  compensation law, if an injured worker who is receiving his weekly TTD benefits returns to work without a form WC-240, and he cannot perform the assigned job, the TTD benefits stop.  If the employer does not volutarily restart them the employee will have to request a hearing (and wait the two to three months for a hearing date) to try and get them restarted.

However, if that same employee returns to work with a WC-240, and cannot perform the assigned job, his TTD benefits will start again immediately.

What is this special form, the WC-240?

A WC-240 is a State Board from that sets out a specific light duty job description.  The WC-240 includes the start date for the light duty return to work, specific activity limitations as described by an authorized treating physician, the name and contact information for a supervisor and the light duty rate of pay.

If you return to work with a WC-240 and cannot perform the job duties, you notify the contact supervisor, then you return home knowing that your TTD benefits will start again automatically.

In Tom's case, had he returned to the dam building site without a WC-240 and been unable to resume work in his heavy construction job, there is a good chance that the employer would have cut him off.   At that point, Tom would have no job, no income and no workers' compensation benefits. 

As you can imagine, Tom's settlement leverage would be very minimal.

I think it is fairly obvious that Tom's employer has taken an aggressive, "in-your-face" approach to Tom's case.  Even the insurance company adjustor confided to me that the employer was not acting properly in what amounts to harassment of Tom.

Sometimes employers understand Georgia law fully and they use this "return to work trap" to squeeze injured employees.  They know that an injured employee who has no money will be more likely to settle for a miminal lump sum out of desparation.

Other employers are not based in Georgia and they don't know anything about a WC-240, but will take adavantage of the leverage associated with an undocumented return to work.

I think that Tim's case also illustrates why an injured employee needs legal representation. 

Finally, you should be aware that the WC-240 was appropriate in this case because Tom had already been receiving TTD benefits.  If your employer has controverted the claim and no TTD benefits have commenced, a different strategy might be necessary.

Many of the calls I get from injured workers are triggered by questions about returning to work.  If your doctor has suggested that you are ready to return to work – full duty or light duty, or if your employer is pressuring you to return to work, please do not make any decisions without talking to me or to competent legal counsel.

If you are injured on the job, start to miss work, and your employer accepts your Georgia workers' compensation claim, you become eligible for temporary total disability benefit payments.  How does TTD work and how much can you receive?  In this video, I discuss the basics about TTD benefits.

Have you received a light duty return to work?   What happens if you try to work but the light duty job is too difficult?  What does "light duty" mean anyway?  Will your temporary total disability benefits be restarted?   Returning to work under a light duty release can be very tricky and you can jeopardize your benefits if you do not handle this process correctly.  In this video, I explain how a light duty release is supposed to work and why a WC-240 form is so important.

Jodi Ginsberg responds:   No, you should not return to work right away. You should wait until you receive a form in the mail called the WC-240 form.  The WC-240 form is completed by the insurance company and describes specifically a light duty job, the date and time that this light duty job will be available.

She told me that it would take 13 weeks from today before i would receive any compensation. She also told me that I have to have 13 weeks of time worked prior to the date of the injury and that time worked is a factor of how much i am to receive.

I am hoping that physical therapy will help my ankle so that i can go back to working full time.  Is the workers Comp. rep. trying to get over on me or is the 13 weeks waiting period normal. please let me know as soon as possible. Thank You
–Jason

Jodi Ginsberg replies: Jason, thank you for your inquiry. The answer is "NO." You do not have to wait 13 weeks (91 days) to get payment when an authorized treating doctor gives you a "no work"  form or puts you on light duty and the job has no light duty.

The ins company rep is not telling you the correct information. The law states that when there is an accepted claim, there is a 21 day waiting period from the date of accident and then you can recover TTD (temporary total disability) benefits.  The 13 weeks comes into play when they look at your average weekly gross wage so they can figure how much to pay you in TTD weekly.   There is obviously a big difference between waiting 3 weeks as opposed to 13 weeks.  Again, you only have to wait 21 days (3 weeks) for your first check if the insurance company accepts responsibility for the claim.

Your TTD benefit is an average of the past 13 weeks of gross wages of your salary OR if you were not there for 13 weeks then of a similar employee.  The TTD benefits are 66 2/3 % of average wage and depending upon the year there is a cap paid.  Right now the cap is $450 per week for injuries in 2006.

You are welcome to call me at 770-351-0801 to discuss your case further and rights you have under the law when it comes to benefits, proper medical care, payment, reimbursement and settlement. Please be careful when dealing with the ins company as they may tell you things that are not always correct or that you misinterpreted.

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