May 20, 2019

2013 Changes to Georgia’s Workers’ Comp. Laws

Georgia state legislatureEvery year the Georgia legislature considers a variety of proposed laws which may impact workers’ compensation.  This year, several bills passed the Georgia House and Senate and were signed by Governor Deal:

TTD maximum increases to $525 per week.  If you were injured on July 1, 2013 or after, your maximum temporary total disability payment amount increases from $500 per week to $525 per week.  The formula for calculating TTD benefits remains the same – you are entitled to 2/3 of your average weekly wage with a maximum benefit payment which is now $525 per week.

Mileage payments must be made faster.  When we submit documentation to recover mileage reimbursement (for travel to and from the doctor, a deposition or other approved reason), the insurance company must reimburse you within 15 days of submission date.  Previously they could wait up to 30 days to send the reimbursement.  If the mileage check is late, then you will be owed a penalty.

WC-240 return to work procedure changed.  If you attempt to return to work under a WC-240 or not, you must attempt to work for at least 8 hours or one shift for that attempt to be considered reasonable 1.  I continue to encourage my clients to make good faith work attempts.  Under the law if you cannot work for more than 15 days under the work attempt your TTD benefits must be reinstated.

Medical care now limited to 400 weeks.  As of July 1, 2013 injuries, the insurance company is obligated to pay for medical care up to 400 weeks (which is more than 7 years). Only if your case is deemed catastrophic will the 400 week medical benefit cap not apply 2.

  1. I strongly suggest that you not return to work without a WC-240 form.  The WC-240 is completed by your doctor and sets out your work activity limitations.  Read more about the WC-240 procedure here
  2. I have long argued that timing is one of the most important factors in maximizing your settlement.  This change – limiting the insurance company’s obligation to pay for medical treatment makes it even more crucial that we understand and calculate the insurance company’s possible exposure properly.  I discuss this timing issue more in this video

Returning to Work on Light Duty – Proceed with Caution

return to work under wc-240aI have previously written about the importance of never returning to light duty work without a WC-240a form completed by your doctor after being out and receiving temporary total disability benefits.  The WC-240 and WC-240a will set out specific limitations for the type of activities you can perform in your light duty.

Board Form WC-240 contains a “Notice to Employee of Offer of Suitable Employment” containing the a job title, rate of pay, hours of work and date light duty work is to start.  Form WC-240 is filled out by your employer/insurer. A WC-240a should be attached to the WC-240.

Board Form WC-240a must be completed by your authorized treating physician.  It contains a detailed checklist setting out specific activity limitations for your light duty return to work.

If you return to work with a WC-240 and WC-240a and within 15 days, you find that the offered job does not fit within your limitations and you cannot perform the job duties, you can leave the workplace and your TTD benefits will resume automatically (although your employer can subsequently ask for a hearing to terminate your benefits).

If you return to work without a WC-240 description of activity limitations, and cannot perform the job, you also have 15 days to determine whether you can perform your job and thus get an automatic reinstatement of your TTD benefits.  However, my experience has been that insurance adjusters are much more likely to challenge your decision to leave a light duty job by filing paperwork to cut off benefits if there is no WC-240 description of a light duty job for you.

If you wait more than 15 days to decide that you cannot perform the light duty job, your benefits will not automatically restart and you will have to wait weeks or months with no income coming in to get a hearing date to bring the matter before a judge. [Read more…]

Be on Your Best Behavior if Your Attempt to Return to Work with a Light or Full Duty Release

return to work under WC-240An area of concern for many workers’ compensation claimants has to do with returning to work under a fully or light duty release.  I always remind my clients about the importance of having a WC-240 form in hand before attempting to return to work.  The WC-240 is an official State Board form completed by the authorized treating physician that sets out specifically the restrictions that must be accommodated by  your employer when you try to return to work.

If you return to work without a WC-240 and cannot perform the job tasks, your employer is not obligated to restart your TTD benefits.  If you try to return to work at a job within the WC-240 restrictions and cannot perform that job your TTD benefits will resume automatically (although the employer can later challenge you on the medical issue).

I recently ran across an interesting twist on this return to work issue.  The case arose in Arkansas which apparently has similar rules to Georgia about return to work issues.  In the Tyson Poultry vs. Francisco Narvaiz case, Mr. Narvaiz injured his left shoulder and was out on TTD.  His condition improved and he was released to light duty work.  While working light duty he got into a verbal altercation with his supervisor and called her a vulgar name that I will not repeat, and Tyson Poultry fired him but refused to reinstate his TTD.  Tyson argued that Narvaiz’ termination was equivalent to a refusal to work and thus should relieve them of their obligation to pay TTD benefits.

The Arkansas workers compensation commission (equivalent to Georgia’s State Board) ruled in favor of Narvaiz, reasoning that the termination was Tyson’s decision and not a voluntary refusal by the employee.  The Arkansas appeals court reversed and ruled in favor of Tyson, but the Arkansas Supreme Court reversed and found in favor of Narvaiz and accepting the reasoning of the commission.

While I think that the Georgia State Board would rule in a similar fashion, I do think it is wise for an employee who is returned to work with a WC-240 to light or full duty make every effort to avoid situations where he might be fired for misconduct.  I can easily see a scenario where the employer would argue that the employee intentionally acted rude in order to get fired – in such a situation the State Board might very well find that intentional actions by an employee to get terminated from a WC-240 described job is equivalent to refusing to perform that job.

I therefore counsel my clients to be on their best behavior when attempting to return to work and avoid responding to sarcastic comments from supervisors.

 

When Do I Get my First Lost Wage Check?

first workers compensation lost wage paymentOften the problem that drives clients to call me relates to lost wage checks.  Specifically, you may have been hurt a week or two ago, you are getting letters and State Board forms in the mail, but no lost wage check.  What exactly are the rules regarding when you are supposed to get that first check?

the insurance company has 21 days after the date of your first missed day from work to issue your first lost wage check.  You do not count your last day of work in this calculation

  • you will not receive payment for the first 7 days of missed work unless you miss 21 consecutive days
  • once you miss 21 consecutive days, the insurance company must pay you for the first 7 days of missed work
  • if you do not miss 21 consecutive days, you should receive 2 weeks’ worth of benefits by day 21 after your first day of missed work

Confused?  You are not alone.  The law seeks to balance the needs of workers for money to pay their bills and the needs of the insurance company to conduct its investigation and set up a payment schedule.  Personally, I think that an employee’s suffering when he is hurt and broke for 3 weeks outweighs an inconvenience to an insurance company, but this is the law as it exists currently. [Read more…]

Revealing the “Return to Work Trap” in Georgia Workers’ Compensation Law

What is the biggest trap that you can face in your Georgia workers’ compensation case?  Without question, issues relating to your return to work after being injured must be handled very carefully.

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.

Light Duty Return to Work – What Should You Do?

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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.

What Can I Do if the Company Doctor Returns Me to Work But I am Still in Severe Pain?

I have worked for my employer for 20 years. Due to the type of extreme work that I did, over a period of time I damaged my spine and was told I had  2 herniated discs, one in my neck, the other in my lower back. Both areas also have bone spurs.

The first WC Dr. I went to told me I had a pulled muscle and sent me back to work Full duty. I had an MRI, which clearly showed the damage, but this Dr. chose to withold the results from me and off I went to work!   Knowing I could not perform my job, but under the threat of termination, I did as instructed. I could not stay the day and left, got another WC Dr. and when he saw the MRI, he told me about the damage.

I eventually had surgery on my lower back which has not helped very much and another MRI revealed that the disc is still slightly bulging hence the pain I feel daily. The “well known” surgeon, has chosen to release me to work on light duty and has changed his mind about my neck. Apparently he has decided that it is due to “age” (I am 45). He refuses to treat my neck and has become defensive and evasive in my dealings with him. It is like all of a sudden he is done with my treatment even though I am only half way treated. I am in constant pain and cannot do anything!

By the way, my job was loading 8,000 pounds of freight a day, and this Dr. says it suddenly has nothing to do with 20 years of that! How can a Dr. turn on his patient like this? WC has been as unhelpful as they can be. I know the Dr. has been told by WC to end his treatment and get rid of me. What is my recourse? I am young, have a young family and can’t go on in this pain and do not feel that I deserve this lack of medical care.

–Darryl

Jodi Ginsberg responds:  Darryl, thanks for your question.  In many cases if you are terminated while involved in a workers comp case, the termination can actually help your case. If you are terminated for no justifiable reason (typical reasons we often see include “disobedience,” “company policy violation,” etc..) and you are on light duty or no work status then your case is actually enhanced because the insurance company no longer has the leverage of finding a light duty job for, after which they could cut off your temporary total disability benefits.

We sometimes see a situation where our client is on a light duty job that was created at the request of the insurance company, but the employer does not like the idea of having a non-productive employee hanging around and the employer ends up firing the injured worker.  In such a case the insurance company then has to start paying temporary total disability benefits again because the claimant is no longer working.

Where you potentially face a problem with your case is when you are returned to full duty work.  If you have been released to full duty and are subsequently fired, then you will most likely have to go to court (the State Board of Workers Compensation) to get your benefits started.

As you can see, your work status (full duty vs. light duty vs. no duty) is very important as is the timing of any termination.

At this point, it appears that you have been released to full duty, therefore you are exposed. There are several options here, including negotiating an agreement with the insurance company to refer you to a new treating physician, or filing for a Hearing to Change the Authorized Treating Physician, using your “claimant’s independent medical exam.”

Unfortunately you have discovered the truly unpleasant side of Georgia workers compensation.