FAQ

Information about the workers’ comp system

Workers’ compensation is a set of laws created by the Georgia General Assembly to govern and control a person’s rights, remedies and obligations when injured on the job. It is an administrative system separate from the state and federal court systems.

The workers’ compensation system is designed to assist injured employees to recover and return to work as soon as possible following an accident and to provide a weekly monetary benefit until they are able to return to work. To discuss your work injury claims with a passionate and skilled Georgia lawyer, contact The Barnett Law Firm today.

What Do Work Comp Laws Require?

Simply stated, workers’ compensation laws require employers to cover their employees with workers’ compensation insurance (or qualify as “self-insured”) for which the employer pays an insurance premium. In return, the employer is immune from lawsuits for work injuries, even if the injuries are the employer’s fault. Workers’ comp insurance pays for medical care related to the injury without co-pays or deductibles. In addition, the insurer will pay directly to the injured worker the following money benefits:

• A weekly disability benefit check if he or she suffers partial or total wage loss as a result of the injury; and

• Additional weekly benefits based on the employee’s permanent impairment rating from his or her doctor, whether or not there is a wage loss.

In some instances, workers’ compensation will provide vocational rehabilitation if the employee’s injury is extremely serious and prevents a return to his or her job.

The workers’ compensation system is unfair to employees in large part due to the limited benefits provided. The system provides much greater protection to the employer/insurer than to the employee. On the other hand, when the system works, you can get your benefits more quickly than through litigation.

Consult With An Experienced Workers’ Compensation Attorney

Unfortunately, the system does not always work in your favor. For this reason, it is extremely important that injured employees understand the rights and benefits to which they are entitled and retain the services of a qualified attorney to assist them.

Who are the players involved in the workers’ comp process?

There are many players involved in the workers’ compensation process. At The Barnett Law Firm, we can explain how each one will affect your situation and your claims. Contact a lawyer at our Decatur law firm if you have any questions surrounding any of the following people or organizations.

State Board of Workers’ Compensation (The “State Board”) — The State Board is an administrative body created by the General Assembly to regulate and administer the workers’ compensation laws in the state of Georgia. It is composed of a three judge panel: the Chairperson of the State Board and two additional Directors appointed by the Governor. The State Board also employs numerous individuals to regulate and administer the laws. Insurers and self-insured employers are required to file periodic reports and other documents with the State Board, including reports of job injuries and notices of payment or suspension of weekly benefits.

Administrative Law Judges (“ALJs”) — ALJs are employed by the State Board. Their job is to resolve disputes between injured workers, their employers and insurance companies. They are the only judges with the authority to decide disputes concerning disability benefits, medical care or other benefits under workers’ comp laws. If the parties cannot resolve their dispute, either party may file a motion or request a hearing which an ALJ will decide.

Workers’ Compensation Carriers — These are insurance companies registered with the state, which provide employers with coverage for disability benefits, medical care and other benefits under workers’ compensation laws. If the workers’ comp laws apply, an employer is required by law to pay a premium to the insurer and maintain this coverage.

Adjusters— These are the individuals who work for the insurance companies and are responsible for issuing disability checks, authorizing and paying for medical care and otherwise administering the workers’ compensation claim for the insurance company.

Case Managers — Sometimes referred to as rehabilitation suppliers or case nurses, these are individuals who are hired by the insurance companies to assist the adjuster by coordinating medical

Questions

Q1. How do I contact the State Board of Workers’ Compensation?
Its address and phone number is:

State Board of Workers’ Compensation
270 Peachtree Street, NW
Atlanta, Georgia 30303-1299
404-656-3818
Website: www.sbwc.georgia.gov

The State Board has branches throughout the state. You can obtain the address and phone number for the branch closest to you by contacting the State Board in Atlanta or accessing their website.

Q2. My injury is fairly minor and I don’t feel comfortable with a case manager getting involved in my medical care. Do I have to agree to case management?

Most case managers work as independent contractors for the insurance company or employer. If that is true in your claim, case management is voluntary and you are free to reject it. If they are employees of the insurance company or your employer, you may have to work with case management.

For the most severe injuries that are known as “catastrophic” injuries, case management is mandatory, but the case manager must be specially trained and licensed to manage such injuries.

Q3. Should I ever allow voluntary case management?

Sometimes injured workers need the assistance of a case manager who will work on behalf of the injured individual to speed up the delivery of medical care and help explain medical issues. There are many good case managers. Their main concern is to save money for the insurance company, but they may help you receive quality care.

If you agree to a case manager, never allow the case manager to meet alone with your doctor. Some of them may try to influence the doctor’s opinions, contrary to your best interests.

Q4. If I have any questions about my rights under workers’ comp laws, can I call the State Board for information?

The State Board is not permitted to give you legal advice. They will answer non-legal questions, but if you have any questions about your rights or obligations, contact a qualified workers’ comp attorney.

Q5. Should I provide a recorded statement to an adjuster?

Adjusters sometimes ask injured employees for a recorded statement to investigate the claim. What you say in a recorded statement may be taken out of context or otherwise used to deny your claim. You should consult with an experienced workers’ comp attorney before you give a recorded statement, or you may say something you later regret.

Why can I not file a personal injury claim?

Workers’ Comp and Your Sole Remedy

Shocking, but true. If you are injured on the job, even if it is the employer’s fault, your only claim or remedy against your employer is under the workers’ compensation system. Employers are immune from other lawsuits or claims in return for providing workers’ compensation coverage to their employees. This is known as the “exclusive remedy bar.”

The exclusive remedy bar applies only to your rights under Georgia law. There are certain federal laws, such as the Americans with Disabilities Act or the Family and Medical Leave Act, which may provide additional remedies. For more information regarding your rights and the exclusive remedy, contact a knowledgeable lawyer at The Barnett Law Firm.

Questions

Q1. Why can’t I sue my employer if my injuries are the employer’s fault?

Workers’ compensation is a “no-fault” system. It does not matter if the injuries were your fault, your employer’s fault or no one’s fault. If your injuries arose out of your employment while you were engaged in your employment, you are covered. Although the employer is protected from fault (even for willfulness or gross negligence in causing the accident), the injured employee is also entitled to receive workers’ compensation even if the injuries were the fault of the employee.

The Georgia workers’ comp system provides very limited benefits to an employee while providing total protection to employers. It is therefore important that you understand the worker’s compensation system to ensure you receive all benefits the law allows.

Q2. Can I recover from a co-worker who injured me on the job?

No. The exclusive remedy bar is designed to protect not only your employer, but your fellow employees as well. If you are injured by a fellow employee while working on the job, your sole remedy is a workers’ compensation claim against the employer.

Q3. What if I decide to waive my right to workers’ compensation? Can I sue my employer instead?

No. Workers’ compensation is the “exclusive remedy” an injured worker has against the employer and its workers’ comp insurer. Choosing not to pursue your benefits under workers’ compensation laws does not give you the right to pursue other actions against your employer.

Q4. What if my injury was caused by someone other than my employer or co-employee, such as someone hitting me in a car accident or if I am injured by a defective piece of machinery?

The workers’ compensation “exclusive remedy bar” only protects your employer and co-employees. It does not protect third parties. If someone other than a co-employee, supervisor or other agent of your employer is responsible in whole or in part for your injuries, you can pursue a lawsuit against them for your injuries, which may include negligence claims and “products liability” claims against manufacturers of defective products. Be sure to discuss these claims with your attorney.

Q5. What if my employer does not have workers’ compensation insurance coverage if I meet with an accident?

Being uninsured when the law requires that the employer have workers’ compensation insurance is not a defense to a claim for workers’ compensation benefits. The employer is subject to fines, penalties and criminal prosecution for not maintaining workers’ compensation coverage. If uninsured, the employer is responsible for paying the benefits to which you are entitled. However, the employer is still protected from claims other than workers’ compensation.

An employer may be self-insured and not have to carry workers’ compensation insurance. Whether the employer is uninsured, self-insured, or has workers’ compensation insurance has no effect on the injured employee’s rights and obligations under the law.

Q6. I am an employee of a temporary agency and was injured while working at the warehouse of a company that uses our services. The temporary agency pays my wages and has workers’ compensation coverage for me. Can I pursue a negligence lawsuit against the company where I was working?

If you are an employee of a temporary help contracting firm or an employee leasing company and injured while working at one of the client companies of the temporary firm, the client company is immune from lawsuits and your sole remedy is a workers’ compensation claim with your temporary agency. Therefore, in your case you cannot pursue a negligence lawsuit.

If you want to know more about the exclusive remedy surrounding the workers’ compensation system in Georgia, contact us.

Who is subject to workers’ comp laws?

Employers and Employees Subject to Workers’ Comp Laws

Every employee working for an employer doing business in the state of Georgia who has at least three employees is covered by Georgia’s workers’ compensation laws, including employees of the state of Georgia, city and county governments, boards of education, corporate employers, unincorporated partnerships, sole proprietorships, non-profit companies and out-of-state employers whose employees are injured in Georgia. Employers who do not have three employees may agree to the protections and obligations of workers’ compensation laws by purchasing workers’ compensation insurance coverage.

Need help answering your difficult questions? Consult with attorney Hank Barnett for guidance.

Federal employees and railroad employees are not subject to the Georgia workers’ compensation laws. Federal employees, such as those working for the Postal Service, are covered by a separate workers’ compensation system. Railroad employees have another claims system. You should consult with a qualified attorney if you are a federal employee or a railroad employee about your rights or obligations.

Certain industries, for political or other reasons, are expressly exempt from Georgia’s workers’ compensation laws. These include farms and those employing domestic labor such as housekeepers.

Questions

Q1. I was injured on the first day of my new job. Am I covered by workers’ compensation?

Yes. Coverage begins immediately upon starting a job.

Q2. My employer has at least three employees, but tells me they are not subject to workers’ compensation laws. What should I do?

If you are injured on the job, never accept what your employer tells you with regard to their obligation to have workers’ compensation coverage. Your employer may not know they are required to cover their employees or they may want to stop you from filing a claim. Always assume you are covered and contact a qualified attorney. The lawyer will ask the necessary questions to determine whether you are or should be covered for workers’ compensation benefits.

Q3. I am self-employed and was working on a project for a client at his factory when I was injured. Am I covered by workers’ compensation?

Businesses that hire independent contractors are not required to maintain workers’ compensation coverage for the contractors, even though they have coverage for their own employees. If you are involved in an accident while working for a business as an independent contractor and the injuries were caused by the business or one of its employees, you may have a personal injury claim for negligence that is not barred by workers’ compensation laws.

Q4. I was injured on my job and my employer told me I am not covered by workers’ compensation insurance because I was an independent contractor, not an employee. What should I do?

Whether you are an employee or an independent contractor depends on many factors. The more control the employer has over your work, the greater the chances you are an employee and not an independent contractor. What your employer calls you does not really matter. Whether your employer deducts payroll taxes is only one factor and does not determine whether you are an employee. If you believe you are an employee and not an independent contractor, seek the advice of a qualified attorney.

Q5. My employer is a subcontractor on a construction job. When I was injured my employer told me they do not have workers’ compensation coverage. Am I out of luck or can I still pursue benefits?

This is a common situation. If your immediate employer does not have coverage but you were injured while working on a job site, you may be covered under the workers’ compensation insurance of the company that hired your employer as a subcontractor, or even the general contractor. If your employer will not contact the general contractor, you should do so yourself or seek the advice of a qualified attorney or your union, if applicable.

What benefits might I receive?

Monetary Benefits

If you are totally or partially disabled from working due to a job injury, or if you have a permanent impairment, you will be entitled to receive workers’ compensation weekly benefits.

There Are Three Kinds of Money Benefits

• “Temporary Total Disability” or TTD — If you are unable to work due to your injury, you will receive a weekly benefit check equal to two-thirds of your average weekly wage. You can receive this payment up to 400 weeks from your date of accident. For accidents occurring on or after Jul. 1, 2013, the cap on the TTD weekly benefit is $525. For accidents occurring before Jul. 1, 2005, see the chart in the Appendix I to determine the cap on the date of your accident.

• “Temporary Partial Disability” or TPD — If your work abilities are restricted due to a work injury and you are working in a lighter duty job for your employer or someone else and as a result have a loss of income, you will receive a weekly benefit equal to two-thirds of the difference between your average weekly wage before the accident and your weekly wage on the lighter duty job. You can receive this payment up to 350 weeks from the date of your accident. For accidents occurring on or after Jul. 1, 2013, the cap on the TPD weekly benefit is $350. For accidents occurring before Jul. 1, 2013, see the chart in the Appendix I to determine the cap in effect on the date of your accident.

• “Permanent Partial Disability” or PPD — If you are injured, you may receive an “impairment rating” or percentage of disability from your doctor in accordance with American Medical Association guidelines. If you receive such a rating and are not otherwise receiving TTD or TPD, you are entitled to receive PPD benefits. PPD weekly benefits are equal to the payment you would receive for TTD. However, the number of weeks you can receive the benefits depend on the percentage of impairment and the body part affected. For example, if you have a permanent loss of use of your right arm but continue to work at your full wage, under workers’ compensation rules you could receive 225 weeks of benefits at the total disability rate, which is your PPD benefits. If your physician states you have only a 10 percent impairment to your arm, rather than a total loss of use, you would be entitled to 22.5 weeks of PPD benefits.

Questions

Q1. Once my weekly benefit starts, how often will I receive a disability check?

Generally, disability benefits must be paid once a week. If the payments are being issued from within Georgia, so long as the check is postmarked by the last day of the seven-day pay period, it is considered timely. If issued from out of state, the check must be postmarked not later than three days before the end of the seven-day pay period.

Q2. Am I entitled to a late fee if the employer/insurer does not pay my weekly disability check in a timely manner?

Yes. If the check is not mailed on time, the employer/insurer must pay you a 15 percent late penalty. Your disability checks may not arrive the same day each week. The check must be mailed within the weekly time period, but it may be mailed on any of several different days.

Q3. Can I recover compensation for my pain and suffering or the mental distress I have suffered?

An injured employee is not entitled to compensation for his or her pain and suffering, mental distress, or other items for which people injured in non-work-related accidents may receive. This was a key reason for workers’ compensation laws: to protect a covered employer from these claims.

Q4. What if my injuries prevent me from ever being able to return to work? Will my benefits stop after 400 weeks?

The disability benefits will usually stop at 400 weeks whether you can return to your employment or not. However, some people have injuries that are so severe they are considered “catastrophic.” Catastrophic injuries include spinal cord injuries resulting in partial or total paralysis, amputations of an arm, hand, foot or leg involving loss of the appendage, severe brain injuries, second- or third-degree burns over 25 percent of the body or third-degree burns over 5 percent or more of the face or hands, and total blindness. Catastrophic injuries may include other injuries that are so severe that the injured worker could qualify for Social Security Disability benefits. If your injuries are designated catastrophic, there is no limit on the number of weeks you can receive weekly benefits.

Q5. As a result of me being injured, my spouse has taken time from work to take care of me. Can I receive additional compensation?

You as an injured worker will not receive any additional money benefits. If the treating physician states you need home health care, your spouse may be entitled to payment for caring for you as a “home attendant.”

Q6. Is my spouse or children entitled to receive anything for my work-related injuries under workers’ compensation?

Except in death cases, family members are not entitled to receive anything for “loss of consortium” or similar claims when a spouse or parent suffers a loss due to a work injury. The weekly benefits described in this section are the only funds the law requires your employer and its insurance company to pay directly to the injured worker. The exclusive remedy bar also applies to family members. They are not permitted to sue the employer or insurer. (See “Workers’ Comp-Your Sole Remedy” at page 12).

Q7. How is my average weekly wage calculated?

Your “average weekly wage” (“AWW”) is calculated by taking the total of all wages, salary, bonuses, sick pay, vacation pay and certain benefits (such as meal allowances) you were paid by the employer for the 13-week period just before your date of accident and dividing this amount by 13. This amount is based on your gross wage and not on your net or take home pay.

Q8. What if I was on the job less than 13 weeks when the accident occurred?

In some instances, the insurer may use the average weekly wage of a co-employee who was performing a similar job with the same employer. If there are no similar co-employees, then the insurer should use the employee’s agreed full-time wage. For example, if the employee is hired to work 40 hours per week at $11 per hour, the average weekly wage is $440.

Q9. What if I had taken time off from work without pay during the 13-week period?

Georgia law states that to use the 13-week method, the injured worker must have worked “substantially the whole” of the 13 weeks. If you only worked nine weeks during the 13-week period, for example, the insurer should use the average weekly wage of a similar co-employee or your full-time wage if there are no similar co-employees.

Q10. I was injured after the holidays when we were very busy and I worked a lot of paid overtime and also received a Christmas bonus. Is the overtime and bonus included?

Yes. AWW includes any compensation you received from your employer, including wages, overtime, commissions and bonuses.

Q11. What if I worked more than one job during the 13-week period?

If you worked for more than one employer doing similar jobs during the 13 weeks before the accident, the wages and other compensation you received from each job should be included in your average weekly wage. This is called “concurrent similar employment.” (See “Second Jobs and Side Businesses” at page 51).

Q12. Am I entitled to review the calculation of my average weekly wage?

Yes. If you are paid less than the maximum benefit rate, the insurer is required to send you a “Wage Statement” with a weekly breakdown of your wages for the 13-week period.

Q13. Are any of the money benefits from workers’ compensation taxable?

No. The weekly disability benefits of TTD, TPD and PPD are not subject to state or federal taxation. Your employer or the insurer should not deduct tax payments and you do not have to declare the income from your workers’ comp claim. Consult with your tax preparer for more information.

Q14. I receive a base salary plus commissions. Because of my injury I have not been able to meet with potential customers, so even though my base salary is the same I have had a drop in my commissions. Can I be compensated?

If you can show that your wage loss was due to your work injury or its restrictions, you are entitled to receive TPD benefits for the loss in income due to lower commissions.

Q15. Does my weekly benefit check ever increase?

No. Unless there is an error in its computation, the amount of your TTD weekly check is fixed as of the date of your accident and does not increase, even for inflation. If your weekly benefit is capped at the maximum rate in effect on the date of your accident and the cap goes up, your benefit check will not increase.

Q16. Does my weekly benefit check ever decrease?

Possibly. If your doctor releases you to limited duty, but your employer does not have work for you, your employer or their insurer has the right to send you a written notice that in one year your benefit will be lowered from your total disability rate to the temporary partial disability rate cap in effect on your accident date. Your benefit amount will decrease even though you are not working.

Q17. My employer has a wage continuation plan that pays me if I am sick or injured and unable to work. The plan will continue my salary for up to 12 weeks. How will this affect my benefits if I am off work due to my work injury?

If your employer pays your full salary pursuant to a wage continuation plan, they do not have to pay workers’ comp disability benefits at the same time.

Q18. I have received workers’ compensation benefits for over a year and things have gotten difficult for me financially. I need extra funds to pay bills and to stop the creditors from threatening to repossess my automobile. Can I receive extra money to help in this situation?

If you have received weekly benefits for at least 26 weeks, you may petition the State Board for an advance payment in a specific sum. If the State Board determines that it is in your best interest to prevent extreme hardship or is essential to your rehabilitation, the Board will order the insurer or self-insured employer to pay the amount requested or some other amount. Sometimes, it is possible to negotiate an advance payment with the insurance company without having to file a formal petition with the State Board. If an advance payment is made, the insurer is entitled to be repaid the advance plus 5 percent interest per year from future disability benefits, usually PPD benefits.

This is not a settlement of the case and should not otherwise affect your entitlement to medical care or disability benefits.

Q19. What is a case settlement?

Sometimes it is appropriate to settle your workers’ compensation case, which usually means your claim will be closed in return for a lump-sum payment. Closing the claim means terminating any further right to receive disability benefits, medical care or other benefits to which you are or may be entitled.

Determining what your claim is “worth” for settlement involves an analysis of your future needs and the exposure faced by the employer/insurer. This is not a simple task. If the adjuster offers you a settlement, you should check with a qualified attorney.

Am I eligible for benefits and will I qualify?

Qualifying for Disability Benefits

To receive “Temporary Total Disability Benefits” or TTD benefits you must be disabled from working. Your treating physician must state you are “off-work” or totally disabled, or your physician must place restrictions on your work abilities (such as no lifting or bending) and your employer cannot or will not make you work within these restrictions.

There Are Very Specific Requirements to Qualify

You must be out of work at least seven days before you are entitled to receive disability benefits. You will not receive benefits for this first week unless you are out at least 21 days. The employer/insurer has 21 days to make the first payment of TTD benefits.

Upon starting your disability payments, the employer/insurer is required to file a “Form WC-1, First Report of Injury” or a “Form WC-2, Notice of Payment or Suspension of Benefits” with the State Board of Workers’ Compensation to notify them of the amount of the weekly disability payment and the starting date, with a copy to you.

Be sure to obtain a form from the physician stating whether you are out of work or subject to work restrictions. Deliver a copy of the form to your employer and if on restriction, give the employer an opportunity to provide work within your restrictions. If there is no work within your restrictions, the employer is required to notify the insurance company and benefits will be paid to you.

If your employer does have work for you within your restrictions, but you receive less than your average weekly wage, you will be entitled to receive “Temporary Partial Disability” (“TPD”) benefits for your wage loss. In this situation, ensure that your employer notifies the insurance adjuster of your gross weekly wage.

If your TTD or TPD benefits are suspended because your physician says you are capable of working without restriction, or because you have returned to restricted work at your pre-injury wage rate, within 30 days of the suspension, the employer/insurer must send a written request to your physician to issue an “impairment rating.” An impairment rating is a percentage of disability from the injury to either your whole body or a portion of your body calculated according to American Medical Association guidelines. This rating is different from a work restriction and you may have an impairment rating even if you are not subject to work restrictions. Once issued, the employer/insurer has 21 days to make either a weekly payment or a lump-sum payment to you, at their option. These benefits are the permanent partial disability or PPD benefits. The number of weeks of benefits you receive depend upon the body part affected and the percentage of impairment.

Questions

Q1. Is my employer required to provide a job to me within my work restriction?

No. Under workers’ comp laws, the employer/insurer is required to either provide work to you within your restrictions or to pay your weekly disability benefits. The employer/insurer has the choice of paying you benefits or providing you with a light duty job.

Aside from workers’ comp laws you may have additional rights if your employer has a collective bargaining agreement with a union or if you have a written employment contract that provides additional protection. Contact your union rep or review your employment contract.

The Americans with Disabilities Act (ADA) may give you additional rights. Check with a qualified attorney or contact the United States Equal Employment Opportunity Commission (EEOC).

Q2. I was injured on my job and working light duty when my employer’s factory closed. I have looked for work within my restrictions without success. Am I entitled to disability benefits until I can find another job?

If you are subject to work restrictions and you lose your job for reasons unrelated to your injury, you may be able to qualify for disability benefits. You have to make a good faith search for other employment. If you cannot obtain a job within your restrictions, the administrative law judge who hears your case may infer from your efforts that the reason you are not working is because of your injuries and award disability benefits.

Q3. If I need to perform a good faith job search to establish I am disabled, can I limit my search to jobs within my existing profession?

Generally speaking, you should look for jobs within your restrictions that you feel qualified to perform, whether those jobs are within your existing profession or not. For instance, if you worked as a construction laborer when you were injured, you are unlikely to find light work in the construction industry. In such a case, you would need to look for jobs outside the construction industry that are light enough for you to perform.

Q4. I was working within my restrictions when my employer terminated my employment because I could not perform my regular job. Do I have to look for a job before I receive disability benefits?

It is always a good idea to try to find other work if you are terminated or laid off. But if your job injury or restrictions played any part in your termination, you will be entitled to workers’ compensation benefits without having to make a good faith search for other employment.

Q5. Is my employer permitted to fire me because I filed a workers’ comp claim?

Yes. Under Georgia law you are an “at-will” employee unless your employer has a collective bargaining agreement with a union or you have a written employment contract. An employer may fire you for any reason or no reason, but your employer may not terminate your employment for a reason that violates federal laws such as discrimination because of your race, sex, age, disability or religion. There is no Georgia law that prevents an employer from terminating your employment because you filed a workers’ comp claim. If you are subject to work restrictions when you are fired, you may be entitled to disability benefits under workers’ comp. If your job is covered by a collective bargaining agreement, you may be able to file a grievance. Contact your union steward or officer for more information.

Q6. If I am receiving workers’ compensation benefits when my employer fires me, will my benefits be affected?

No. If your employer terminates your job while you are receiving either weekly benefits or medical care for your work injury, this should not affect your entitlement to benefits.

Q7. What if I am out of work receiving workers’ compensation benefits and I choose to retire so that I can receive my retirement pension? Will my right to continued benefits under workers’ compensation be affected by retirement benefits?

If you are totally disabled, or if your employer is not offering you light duty within your restrictions, your decision to retire should not affect your workers’ compensation benefits.

Q8. I was injured on my job just before being fired for reasons unrelated to the injury. I did not think the injury was that serious, but now it is getting worse. Am I permitted to pursue a claim for benefits?

If you were injured on your job and the injury was reported either before or after you were fired, but within the required time period, you can still pursue your claim for medical care and benefits. However, claims asserted for the first time after losing one’s job are usually looked upon as suspect by employer/insurers.

Q9. If the Social Security Administration determines I am disabled, will I be able to qualify for disability benefits under workers’ compensation?

A finding of disability by the Social Security Administration is a strong indication you are disabled. However, Social Security is a separate federal system. Each system has its own rules and regulations. Therefore, the Social Security Administration’s (or the Veterans Administration’s) finding of disability will not automatically qualify you for disability benefits under workers’ compensation. If you are disabled under workers’ compensation, however, qualifying for Social Security Disability is relevant to whether your work injury is “catastrophic.” (See Money Benefits)

What medical care can I receive?

Medical Care Under Workers’ Comp

If you are injured on the job, you are entitled to medical care for your injury without co-pays or deductibles. The law gives your employer and its insurance company the right to control which physicians treat you. Your employer must post at the work site or office a list of treating physicians if you are injured on the job. This is known as the “panel of physicians,” or “posted panel.” Your employer is required to explain your rights and the procedure for use of the panel physicians if you are injured.

Assisting Injured Workers Throughout Georgia With Their Medical Questions

If your employer does not have a posted panel, if the panel is defective or if the employer otherwise fails to correctly explain your rights to medical care, you are entitled to use any physician you choose, whether or not on the posted panel, and your employer and its insurance company will be responsible for payment of the physician’s bills.

If the panel is valid and you are dissatisfied with the panel physician you chose, you are entitled to make one change to any other panel physician. After the first change, you can change physicians with the employer/insurer’s consent or by filing a petition with the State Board of Workers’ Compensation.

Your treating doctor is authorized to make referrals to other physicians for testing, physical therapy, surgery, counseling or other services for treatment of your injury.

Questions and Answers About Your Medical Care

Q1. What does the panel look like and how many doctors will be listed?

The traditional panel of physicians must have a minimum of six physicians or professional physician associations not affiliated with one another. There must be a minimum of one orthopedic physician and not more than two industrial clinics on the list. The list may be blue or pink and have the words “Official Notice” in large bold letters at the top.

A “conformed panel of physicians” should have a minimum of 10 physicians, including at least one general surgeon and one chiropractor.

Finally, your employer may be part of a workers’ compensation managed care organization (WC/MCO), which is certified by the State Board. In that case, there may not be a traditional or conformed panel. Instead, there will be a notice indicating the name of the WC/MCO and, among other requirements, a 24-hour toll-free number that you can call to obtain medical care.

Your employer is required to post the panel in a prominent location at the workplace. The panel may be posted on a break room bulletin board or next to the time clock.

Q2. Can my employer tell me I have to go to the local clinic before I receive other medical care?

Although this is standard practice for many companies, your employer is not permitted to restrict your right to see any of the physicians on the posted panel.

Q3. How long can I receive medical care for my injury under workers’ comp?

For accidents occurring before Jul. 1, 2013, you may receive medical care for the rest of your life if required for your injuries. For accidents occurring on or after Jul. 1, 2013, you may receive medical care for a maximum 400 weeks from the date of accident. If you never received Temporary Total Disability or Temporary Partial Disability payments for your injuries, a gap in treatment of a year or more may terminate your right to further treatment. Therefore, unless you are cured, it is important to follow up at least once a year with the authorized treating physician for your injury.

If your injuries are designated as “catastrophic,” you will retain your entitlement to medical care for your injuries for life.

Q4. While on the job I was injured and taken by ambulance to the emergency room of a local hospital not on the panel of physicians. Is the workers’ comp insurer responsible for this bill?

Your employer and their insurer must pay for medical care from your authorized physician and must pay for emergency care with any physician or hospital. Your emergency room, ambulance bills and emergency admission to the hospital for overnight stays should be covered.

Q5. My employer says I have to schedule medical visits when I am not working. Is that permitted?

Your employer is not permitted to interfere with your injury-related medical care. If your employer refuses to allow you to attend scheduled medical appointments you can petition the State Board of Workers’ Compensation to order your employer to stop this practice. However, your employer may require that you obtain your medical care at times that does not conflict with your work schedule, as long as it is reasonable.

Q6. Can I do anything about the long time it takes for the insurance company to authorize medical care?

Delivery of medical care in the workers’ compensation system is often unreasonably slow. To speed up the authorization process, your physician can send a “Form 205, Request for Authorization of Treatment or Testing” to the insurance adjuster. This is a written request to authorize the requested procedure or referral within five days or the referral is authorized as a matter of law. You can ask your physician or the medical staff to use this procedure. You may be able to assert a claim for penalties against the insurer if the insurance company is consistently slow in authorizing medical care that interferes with your medical care. Contact an experienced attorney for advice.

Q7. Am I entitled to a second opinion concerning my condition or treatment?

If you receive either Temporary Total Disability (“TTD”) or Temporary Partial Disability (“TPD”) benefits, you have the right to a second opinion by any physician you choose at the employer/insurer’s expense. This is known as an “independent medical evaluation,” or IME. You can exercise this right only one time. The physician may perform any test that is medically necessary unless the test was previously performed. If the test was already performed, the physician may order the test again, but the cost of the test must be under $250.

The time in which to exercise your right to the independent evaluation is limited. You can exercise your right to the examination while you are receiving disability benefits and for 120 days after you stop receiving benefits.

If you have not received disability benefits, there is no absolute right to a second opinion. Often, the insurer will allow a second opinion, but they have the right to choose the medical provider.

Finally, there is no limitation on evaluations or treatment from any physician if you are able to afford and willing to pay the fees and costs.

Q8. Will my group health insurance cover my work-related injuries?

Generally, health insurers specifically exclude work-related injuries from coverage. Each health plan has its own policies. You should review your health plan benefits to answer this question.

Q9. Will Medicare or Medicaid cover my work injuries?

Medicare and Medicaid expressly exclude coverage for work-related injuries. As long as you have an open claim for workers’ compensation benefits, Medicare and Medicaid will not pay for medical care for the injuries. However, in some cases, the injured worker may obtain Medicare coverage for his or her work injuries upon settling his or her workers’ compensation claim. This issue is complex and an evolving area of the law. Questions should be referred to an experienced attorney.

Q10. Can I change medical providers if I am dissatisfied?

As stated at the beginning of this section, you have an absolute right to change one time to any other physician listed on the “posted panel.”

If you do not want any of the other physicians listed on the panel to treat you, you must either reach an agreement with your employer/insurer to select another physician, or you should file a petition with the State Board of Workers’ Compensation to request the change in physician. Your employer/insurer may file an objection to your request. Once the State Board makes a decision, anyone dissatisfied with that decision can file an appeal. If you cannot reach agreement with your employer/insurer, you should consult with an experienced attorney before filing a petition.

Q11. My clinic physician says I need to be treated by an orthopedic physician. Do I have to use the orthopedist chosen by my employer/insurer?

No. There is no law that requires you to use the referral physicians chosen by the insurance company. If the authorized treating physician makes a referral to a specific medical provider, you have the right to see that health care professional. You can suggest a physician if none is designated. Be aware that refusing to accept the medical provider chosen by your employer/insurer may cause problems with your future medical care and can cause delays in treatment if the insurer has complied with the law.

Q12. My employer denied that my injury was work-related and refused to pay for medical care under workers’ comp. As a result, my health insurance or I paid for the health care. Now, the workers’ comp insurance company tells me they will cover my injuries, but insists I use the physicians listed on the panel. Do I have to change physicians?

No. If the employer/insurer denied your claim for medical care under workers’ compensation, they gave up the right to control the selection of your treating physician. As a result, the physician you chose will become the “authorized” physician once the claim is determined to be valid.

Q13. My employer/insurer denied my injuries are work-related so I tried to file a claim under my health insurance. What can I do if the health insurer denies my claim because it is work-related?

Your employer/insurer should send you a written notice that your claim was denied. You should request the written notice if you do not receive it. Your health insurer may provide coverage if you give them a copy of this notice, subject to your agreement to repay the health plan if your workers’ comp claim is later determined to be valid.

Q14. If my employer/insurer denies my claim for disability benefits do they give up the right to control my choice of physicians?

No. If the workers’ comp insurer does not deny medical coverage, but denies your disability benefits, they retain the right to control your access to medical care.

Q15. Am I entitled to be reimbursed for driving to the medical providers?

You are entitled to 40 cents per mile for each mile you travel to and from appointments with your medical providers, including tests and physical therapy. You can also receive mileage for your trips to the pharmacist. The reimbursement rate may change based on rising or shrinking fuel costs.

Consult with our experienced attorney regarding your choice of doctor after a work injury.

What if I lost a loved one in a work-related accident?

Workers’ Compensation Death Benefits

If an employee is killed in a work-related accident, or dies as a result of injuries or diseases sustained from work, the employer/insurer is required to pay up to $7,500 in burial expenses.

If your loved one lost his or her life in a workplace accident, we can help you recover the damages you are entitled to receive. Contact our Georgia law firm for more information. We understand that nothing will replace your loved one, but obtaining the money you need can help you move forward.

Benefits You Can Receive in Georgia – Advice From a Skilled Attorney

Dependents of the deceased employee are also entitled to the following benefits:

a. If the spouse is the sole dependent of the deceased employee, the spouse is entitled to receive up to 400 weeks of weekly benefit checks in an amount the deceased employee would have received if he or she survived, but was totally disabled. In some cases, the surviving spouse can receive benefits up to age 65 if it would provide more weeks of benefits. The maximum amount a spouse without dependents can receive is $150,000.

b. If the deceased employee has dependent children at the time of death, the children are entitled to receive the weekly benefit until age 18 or up to age 22 if enrolled and in good standing in a post-secondary institution of higher education. A dependent child over 18 may receive benefits if he or she is physically or mentally incapable of earning a living. There is no cap on the amount a dependent child can receive.

c. If the deceased employee leaves a spouse and dependent children, the weekly benefit will be paid to the spouse for the children’s benefit. If only dependent children remain, the children will equally divide the weekly benefit.

d. Other persons who were wholly or partially dependent on the deceased employee at the time of accident, such as a parent living with the deceased employee, are also entitled to receive up to 400 weeks of benefits if there is no surviving spouse or dependent children. If the parent or other individual is only partially dependent upon the deceased, the weekly benefit is reduced based upon the percentage of dependency. For example, if the deceased employee paid 40 percent of a parent’s monthly expense, the parent will receive only 40 percent of the weekly benefit payment.

Questions

Q1. Is there a time limit to file a claim for death benefits?

Yes. The surviving spouse and/or other dependents have one year from the date of death to file a claim for benefits with the State Board if the insurer does not voluntarily commence benefits.

Q2. My spouse was disabled and received weekly disability benefits before dying as a result of the injuries. Am I entitled to receive the full 400 weeks?

No. If your spouse received weekly benefits before dying from the injuries, you must subtract the number of weeks paid to the deceased from the 400 weeks.

Q3. I am receiving a weekly benefit check because my spouse died from a work-related injury. If I re-marry will my benefits be affected?

If the surviving spouse receiving benefits ever re-marries, or lives with someone of the opposite sex in a sexual relationship, benefits will cease.

Q4. I am under 18 and my father died from a work-related injury. I was born out of wedlock. My father was single when he died. Am I entitled to receive any benefits?

Yes. “Children” in workers’ compensation law includes dependent stepchildren, legally adopted children, posthumous children and acknowledged children born out of wedlock.

Does the employer have any defenses to prevent me from receiving benefits?

Drug Use, Horseplay and Other Defense to Workers’ Comp Claims Attorney

Workers’ compensation claims may be denied for various reasons. Sometimes, it is because the injury did not arise out of your job. Other times, it may be clear the accident happened on the job, but the claim was denied because you were engaged in illegal or improper conduct at the time you were injured.

Under Georgia law, workers’ compensation benefits (money and medical care) will be denied if the employee’s injury or death arose from the employee’s willful misconduct, including intentionally self-inflicted injuries, injuries which arose from the employee’s attempt to injure another or injuries which arose from the willful failure to use a safety appliance or to perform a duty required by statute. If you have questions on whether you qualify for workers’ compensation in Georgia, contact us today.

Benefits may be denied if the employee was engaged in horseplay at the time he or she was injured or if the injury was due to the employee being intoxicated by alcohol, marijuana or a controlled substance at the time of the accident. Your employer may require a drug or alcohol test if you report a work-related injury.

Benefits may also be denied if you fail to disclose a pre-existing condition when you were hired and you were later injured and became disabled due in part to the pre-existing condition. However, this duty to disclose prior conditions will only arise if you were questioned about prior conditions by your employer at time of hire or in a pre-employment physical.

Answering Your Questions About Work Comp Eligibility

Q1. While working, my supervisor and I had an argument about work. He punched me, knocked me down and injured my back. Am I covered?

Yes. If a co-employee or supervisor injures you in an attack at work and the attack arose out of some dispute related to the job, your injuries are covered under workers’ comp. You are prohibited from suing the individual who attacked you, but you can take out an arrest warrant on the attacker. If instead the assault is due to a personal dispute unrelated to your job, it does not arise out of your employment and your claim will most likely be denied.

Q2. I was at a party last week and smoked some pot. This week while driving a forklift at work I lost control of the forklift, crashed into some boxes and injured my back. I was given a drug test and it came back positive for marijuana. The employer denied my claim, even though I was not intoxicated at the time of the accident. Do I have a claim for benefits?

If you test positive for marijuana or other controlled substance pursuant to a drug test taken within eight hours of an accident, or positive for alcohol pursuant to a test taken within three hours of an accident, it will be presumed your injury was caused by intoxication and you will have the burden of proving you were not intoxicated at the time of the injury. If you cannot disprove you were intoxicated, your claim will be denied.

Q3. What if I refuse to take a drug or alcohol test immediately following a work accident?

Unjustifiably refusing to submit to the drug or alcohol test has the same effect as testing positive for drugs or alcohol. You will be faced with the presumption you were intoxicated and the intoxication led to your accident. You will have the burden to prove you were not intoxicated.

Q4. My employer denied my workers’ compensation benefits because I violated a safety rule which led to an accident and my injury. Do I have a claim?

Yes. Failure to follow a safety rule is not a defense to workers’ comp claims. The system is a no-fault system. Even if you violated job rules or your own negligence caused the accident, you are entitled to benefits.

Can I choose my doctor?

Medical Care Under Workers’ Comp

If you are injured on the job, you are entitled to medical care for your injury without co-pays or deductibles. The law gives your employer and its insurance company the right to control which physicians treat you. Your employer must post at the work site or office a list of treating physicians if you are injured on the job. This is known as the “panel of physicians,” or “posted panel.” Your employer is required to explain your rights and the procedure for use of the panel physicians if you are injured.

Assisting Injured Workers Throughout Georgia With Their Medical Questions

If your employer does not have a posted panel, if the panel is defective or if the employer otherwise fails to correctly explain your rights to medical care, you are entitled to use any physician you choose, whether or not on the posted panel, and your employer and its insurance company will be responsible for payment of the physician’s bills.

If the panel is valid and you are dissatisfied with the panel physician you chose, you are entitled to make one change to any other panel physician. After the first change, you can change physicians with the employer/insurer’s consent or by filing a petition with the State Board of Workers’ Compensation.

Your treating doctor is authorized to make referrals to other physicians for testing, physical therapy, surgery, counseling or other services for treatment of your injury.

Questions and Answers About Your Medical Care