October 18, 2019

Could the NFL Use an “Exclusive Remedy” Defense to Block Concussion Lawsuits?

traumatic brain injuryRecently, a number of retired football players have sued the NFL for damages arising from concussion injuries associated with the head trauma regularly incurred in professional football games.  Does the NFL have an argument that closed head injuries incurred by employees – the players – are on the job injuries that are subject to remedy only under workers’ compensation.

Under Georgia law, at least, workers’ compensation is the exclusive remedy for work injuries.   An employee cannot sue his employer for pain and suffering damages.

While the concussion litigation is just beginning, we can expect the NFL to argue that players should not be able to pursue civil damages outside of the workers’ compensation system.  The players will argue that they should not be limited to workers’ compensation remedies because the NFL withheld information about concussions and because of exclusions set out in the collective bargaining agreement between the NFL and the NFL Players Association.

The NFL has won one round in a related legal matter.

Recently, the Atlanta Falcons and the NFL sued the NFL Players Association to prevent injured players from filing workers’ compensation cases in California, where the available benefits are more generous than those provided for under Georgia law.   California law allows claims if the player played at least one game in the state.

The case went to arbitration and the Falcons and NFL won – Falcons players who assert injuries that were incurred while the player was under contract with the Falcons must be filed with the Georgia State Board of Workers’ Compensation.

Over the next few months, we will learn if the traumatic brain injuries suffered by NFL players will be considered as something other than a workplace injury thus making the players eligible for negligence damages.

Injuries that Occur on Your Way To or From Work

Georgia law is fairly well settled that an injury you incur while on your way to or from work is not a compensable injury.  The policy behind this rules arises from concerns about the lack of control your employer would have over your comings and goings as well as problems that your employer would have investigating an injury not on its premises.


I recently read about a case in North Carolina, however, that might support a re-evaluation of the “no coverage for ingress or egress from work” rule.  Let me emphasize that this case is not a Georgia case but the facts reflect changes in technology that might expand the notion of going to and from work.  You can learn more about the James A. Hunt v. North Carolina Industrial Commission by clicking on the link.

The North Carolina case arose in 2009 when a middle school principal was shot in the face and hand while driving to work and talking on a cellphone to a school colleague.

The North Carlina Industrial Commission (equivalent to Georgia’s State Board of Workers’ Compensation) granted benefits.  The school board appealed but the award was upheld by the North Carolina Court of Appeals.  The Appeals Court noted the following in support of its decision:the principal’s contract required him to be “on call” 24 hours per day

  • at the time he was injured, he was talking on an employer provided cell phone about the employer’s business
  • his employment contract included a travel allowance
  • the principal had previously received threats from teachers he had disciplined and from parents of students he had disciplined

This case is a good example of how creative lawyering can help courts adapt statutes to current technology.  I suspect that when the North Carolina statute was written barring compensation for an employee’s coming and going, cell phones were not widely available.  How many of us “work” in the car making and receiving phone calls and (hopefully as passengers) reading texts.

At the very least, now there is an argument that arriving at work does not necessarily mean setting foot in your company’s work site.

How do Workers’ Compensation Adjusters Pressure Authorized Doctors?

Have you ever wondered how an insurance adjuster can influence your authorized workers’ compensation doctor?   If you work in an industry where employees often get hurt, or where work injuries are likely to be serious, you can be certain that your employer’s insurance company has directed the human resource director at your company to include specific doctors on your company’s posted panel.  Insurance adjusters know that physicians who derive most or all of their income from workers’ compensation referrals will be much less likely to keep you off work or order expensive tests.

The problem, of course, is that delays in needed tests, or delays in needed treatment can result in permanent injury to you.  Further, if a panel doctor returns you to work and you are unable to perform your duties, you are likely to be fired putting you in a difficult financial situation and psychologically deterring you from pursuing your rightful benefits.

In this video I discuss a case where the authorized doctor flat out ignored his own physical therapist’s conclusions about my client’s very limited use of her arms, and issued a full duty return to work.  I won’t let the insurer get away with this, of course, but I wanted you to see how broken the workers’ compensation medical system has become.  I’d be willing to bet that this doctor knows that he was not living up to his oath to offer full and complete treatment to his patients, but his interest in making money and seeing those referrals seems to override his conscience.

Be on Alert for “Red Flag” Symptoms in Back Injury Cases

A significant number of work injuries in Georgia involve back injuries.   Unfortunately if you are being treated by a “posted panel” doctor, your treatment may be delayed or not taken seriously.  In this video, I discuss certain “red flag” issues that demand immediate treatment with a spine specialist whose focus is your well being.

 

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…]

What Happens if my Weekly Benefit Checks are Late?

late workers compensation checkI understand how important it is that you receive your weekly temporary total disability benefits on time.     If you are like many of my clients, when you lose your regular paycheck and you are depending on workers’ compensation, you may be living week to week and you may face significant and dire consequences when your checks are late.  Here is what you need to know about late payments, the penalties that the insurance company must pay and what you can do to force the insurance company to issue your check.

Assuming that your claim has been accepted and you are not currently working, your employer’s insurance company must pay your weekly benefit checks on time.

Your first weekly benefit check must be mailed on day 21 after the accident if that check is mailed within Georgia, and it must mailed on the 18th day after the accident if it is mailed from an address outside the state of Georgia.  The day of the accident does not count when calculating dates.

Subsequent checks mailed from within Georgia must be postmarked as of the last day of the week (i.e. Saturday) in order for payment to be considered timely.

Subsequent checks mailed from outside of Georgia must be postmarked by the Thursday of the week it is due in order for the payment to be considered timely. [Read more…]

Am I Entitled to More than One Independent Medical Exam if I have Multiple Work Injuries?

posted panel of physiciansUnder Georgia’s workers’ compensation law, your employer gets to direct where you get medical care if your employer provides you with a valid “posted panel of physicians.”   Not surprisingly, posted panel doctors sometimes bring a pro-employer bias to their treatment of you.  I regularly see – and you have no doubt heard stories about – cases in which a seriously injured man or woman is given a regular duty return to work, only to end up in surgery a few weeks later.

In 1990, the Georgia legislature gave injured workers an important new right, the “claimant’s IME (independent medical exam).  Under this law, an injured worker can request an independent medical examination with a doctor of his choosing, paid for by the employer’s insurance company.

When properly used as part of a effective claim strategy, your claimant’s IME can be used to:

  • refute the unfair and biased claim of industrial clinic doctors
  • contest a premature return to work demand by the insurance adjuster
  • support a request for a change in authorized treating physician
  • support a reasonable settlement demand

However, as important and valuable as your claimant’s IME rights may be, this right is not open ended and it can be wasted if not used properly. [Read more…]